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Article updated: 10/10/2013 4:29 PM

Diocese must release documents in suit over fertility treatment

By

INDIANAPOLIS -- A federal magistrate has ordered a Roman Catholic diocese in northern Indiana to turn over a wide range of documents, including records involving diocese teachers disciplined for violating church teachings, to a former teacher who claims she was fired for undergoing in vitro fertilization.

Emily Herx, 33, sued the Diocese of Fort Wayne-South Bend last year, claiming her teaching contract was not renewed after diocese officials learned she had undergone in vitro fertilization, which violates Catholic doctrine. The Equal Employment Opportunities Commission ruled in her favor in January 2012.

The Hoagland, Ind., woman's suit contends her dismissal is a case of gender discrimination and of disability discrimination based on her infertility.

Herx's attorney, Kathleen Delaney, had asked a federal magistrate in Fort Wayne to order the diocese to turn over a wide array of documents that could shed light on whether she was treated differently from other diocese employees.

Diocese attorneys had responded that Delaney's requests should be limited to the school where Herx had taught and contended that the diocese-wide request was "burdensome, vague, ambiguous, irrelevant or overly broad."

But in Monday's ruling, Magistrate Judge Roger Cosbey found the diocese's argument "unpersuasive" and ordered church officials to release by Nov. 4 most of the data Delaney had sought.

Delaney said Thursday that she and her client are "gratified" by the ruling and eager to receive the documents.

"The court ordered them to produce a much greater volume of information than we've had access to thus far, and we're hopeful the case will move forward quickly from here," she said.

Under the court's order, the data the diocese must release includes the names of all teachers at the diocese's 41 schools employed between Jan. 1, 2006 and June 22, 2011 -- the date of Herx's contract nonrenewal -- who signed a contract with a "morals clause" identical to the one Herx signed.

Diocese attorney John Theisen declined to comment Thursday, saying the diocese does not comment on pending litigation.

Diocese attorneys contend that teachers in the diocese that includes 14 northern Indiana counties are required by their contracts to abide by Catholic tenets. In vitro fertilization, which involves mixing egg and sperm in a laboratory dish and transferring resulting embryos into the womb, isn't approved for Catholics under church doctrine.

Under Cosbey's ruling, the diocese must also release documents on all diocese teachers who were fired, suspended, placed on leave or otherwise disciplined between 2006 and 2011 for improprieties related to church teachings and laws.

Delaney said that and other information will help determine whether Herx was treated differently from male employees or female employees who are not pregnant or trying to become pregnant.

But Cosbey rejected two of Herx's requests, including her request that the diocese admit that it employs openly gay and lesbian teachers.

The magistrate also rejected a request that the school where Herx taught -- St. Vincent DePaul School -- identify "all ways in which a male employee can commit an impropriety regarding Church teachings or laws" regarding infertility treatments and sterilization or birth control.

Cosbey wrote that the latter request is unduly burdensome and puts the diocese "in the position of trying to corral a virtually limitless universe of improprieties."

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