A jury decided that the Diocese of Fort Wayne-South Bend Indiana refused to renew Emily Herx’s contract as an elementary school teacher because she was undergoing in vitro fertilization. I like the court’s decision for what it says about overcoming summary judgment in an employment discrimination case:
First, Mrs. Herx didn’t need to show prima facie case-quality comparators at the summary judgment stage because she made an adequate showing under the direct method of proof. See Docket No. 135, at 16-19. The direct method of proof can include circumstantial evidence, Whitfield v. International Truck and Engine Corp., 755 F.3d 438, 443 (7th Cir. 2014) (“A plaintiff may prevail by ‘constructing a convincing mosaic of circumstantial evidence that allows a [factfinder] to infer intentional discrimination by the decision maker.’”) (quoting Phelan v. Cook County, 643 F.3d 773, 779 (7th Cir. 2006)); Harper v. Fulton County, Ill., 748 F.3d 761, 765 (7th Cir. 2014) (“Should the plaintiff lack direct evidence, she may also point to circumstantial evidence that allows a jury to infer intentional discrimination by the decision-maker.”), and doesn’t always require a showing of better treatment of a similarly situated co-employee.
Second, once a Title VII case proceeds to trial, the indirect method of proof – including the showing of comparators – doesn’t matter. The jury isn’t asked to evaluate whether the plaintiff has shown the prima facie required by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or even instructed on that test. Once the case gets to trial, the only issue the jury decides is whether, based on all the evidence in the case, it’s more likely than not that things would have been different had the plaintiff not been in the protected class and everything else remained the same.
Herx v. Diocese of Fort Wayne-South Bend, Inc., 1:12-CV-122 (N.D. Ind., Mar. 9, 2015).