The Journal Gazette
Wednesday, March 16, 2016 7:33 pm

Priest, principal testify about policy

Rebecca S. Green The Journal Gazette

For the Rev. John Kuzmich, it is better to seek forgiveness than ask permission.

When he was told, finally, that Emily Herx, a language arts teacher at St. Vincent de Paul School, had been undergoing in vitro fertilization treatments for months, the then-parish pastor fired her.

When she appealed his decision, Kuzmich told her that had she kept the matter to herself, she’d still have her job. By sharing it, by telling school staff and Principal Sandra Guffey that she was going to need to take time off for the procedures, Herx elevated the matter to a "scandal," he said.

"I told her that if it stayed between her and her husband, she’d still have her job," Kuzmich said.

The now-retired priest spent nearly two hours on the witness stand Wednesday afternoon, called by Herx’s attorneys to answer questions about whether he, and the Diocese of Fort Wayne-South Bend, discriminated against Herx by firing her for using IVF in an unsuccessful attempt to become pregnant.

Though she was fired in spring 2011, school officials asked her to finish out that school year.

A year after her contract was not renewed by the church for failure to comply with church doctrine, Herx sued the diocese in federal court, accusing church officials of discrimination, contending they would have treated a similarly situated male teacher differently. 

According to testimony Wednesday, the diocesan policies for schoolteachers did not specifically mention IVF at the time of Herx’s employment. After her firing, however, officials added a clause about the procedure, as well as about those who "induce" or "support" fellow staff or faculty members in having the procedure.

After Kuzmich said Herx should have kept the matter to herself, her attorney, Kathleen Delaney, suggested she lost her job for being honest, for asking about her sick days.

"In telling the truth, there are consequences," Kuzmich said. "The issue wasn’t sick days. The issue was I-V-F."

In vitro fertilization is condemned by the Catholic Church as a grave and immoral act, which no circumstances can justify. 

After years of failed attempts to have a second child, Herx and her husband underwent the procedure. Their first round failed, and in early 2011, they tried again. 

Herx sent emails inquiring about sick days to Guffey, informing the principal of her plan, and to the school attendance officer.

In April 2011, Guffey brought the matter to Kuzmich’s attention, months after it was disclosed to her.

When she testified Wednesday morning, Guffey said she had not known that IVF was against church teaching until she read it in a Catholic magazine. She said she missed its mention completely in Herx’s first email.

Delaney grilled Guffey on how she applied the morals clause, which is a part of all teacher contracts to all those who work under her, as well as to herself.

Guffey, who is in her third marriage after her first husband died and after a divorce from her second, testified that she knew divorce was not "recognized by the church."

Delaney asked Guffey if, when she told Kuzmich about her intention to divorce her second husband, she was given a choice between her job and divorce.


"You got to do both," Delaney said.


Delaney posed the same question to Kuzmich, who testified that he never told Herx to cease her treatments, which were nearing the end of their cycle.

Delaney asked Kuzmich whether he’d asked Guffey to choose between divorce and her job, or between her subsequent marriage to a colleague and her job.

No, he answered emphatically, adding that he found her new husband to be a good man.

Kuzmich said he fired Herx because engaging in IVF and having others know about it would have created a scandal and could have potentially confused students at the school, who had a right to have teachers who live in accordance with Catholic doctrine.

In her lawsuit and subsequent interviews with local and national media, Herx contended that during her meeting with Kuzmich, the priest called her a "grave and immoral sinner," an allegation Kuzmich hotly denies.

Not long after Herx’s lawsuit became public, Kuzmich wrote a lengthy letter that was read as a homily in Masses throughout the diocese, addressing Herx’s lawsuit and her contention that he called her a sinner.

During his testimony Wednesday, Kuzmich said he wrote the letter because he was angered by Herx’s allegation.

"I deeply resented that," he said. "That was the primary reason. I needed to say that." He said he saw her statements as an attempt to portray priests as "rigid or doctrinaire."

Guffey and Kuzmich also testified Wednesday about two male teachers and a male staff member who were found to have gone to a strip club while employed by the school.

According to testimony from Guffey, Kuzmich and one of the men, no consequences resulted from the incident other than a highlighted copy of the morals clause being placed in their mailboxes, and one of the men was to have met with Kuzmich.

That man, former teacher Michael Bradley, said Kuzmich didn’t show up for the meeting, instead sending another priest who quickly changed the subject to the upcoming Cubs season after Bradley apologized for creating the situation.

Under cross-examination by diocesan attorney John Theisen, Kuzmich was asked repeatedly about whether Herx apologized and what he would have done regarding her case had she done so.

"I wanted her to express remorse or regret for going against the teachings of the church," Kuzmich said. 

Delaney then questioned him about the church’s stance on contraception, including the use of condoms.

It is also a grave and immoral act, Kuzmich said.

She then asked the priest what he would do were he to see a male Catholic school teacher drop a condom from his wallet.

Kuzmich said he would "of course" hand it back to him. "It could be his son’s condoms," he said.

"Would you fire him?" she asked.

"Not for that one single act," he said.

Theisen asked him if he’d do the same for a female teacher who dropped birth control pills.

Kuzmich assured the jurors he would.

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