Attorney says precedent set in Mica England case gives Vic Gardner standing, even though Texas law does not protect LGBT people
AUSTIN — A Tyler man is suing the Texas Attorney General’s Office, alleging that he was forced out of his job for being gay.
Vic A. Gardner, 37, who’d worked for the AG’s child support division for about three years, resigned in February after repeatedly being unfairly disciplined as a result of his sexual orientation, according to Gardner’s attorney, Jason C.N. Smith of Fort Worth.
"I think it’s so un-Texan to discriminate based on someone’s sexual orientation, because Texas is a place where we celebrate the individual and not throw rocks at people just because they have the courage to take another path," Smith said. "I think it violates our constitution to discriminate against people because of the way they were born."
Smith noted that Texas is not one of the roughly 20 states with laws prohibiting anti-LGBT employment discrimination. But he said gay and lesbian government employees in Texas are protected by constitutional principles such as privacy and equal protection. He said this was established by a 1993 state appeals court ruling in City of Dallas v. Mica England, in which England successfully sued to overturn the Dallas Police Department’s ban on gay and lesbian officers.
"The Texas Constitution protects government employees from being discriminated against based on their sexual orientation," Smith said. "I think it’s important for people to know this. The constitution only prohibits this action by the government against its citizens, so for private employers, unfortunately, there’s no protection in most places."
The Attorney General’s Office didn’t respond to a request for comment on Gardner’s lawsuit this week. Gardner was unavailable for comment.
The lawsuit names as defendants both Gardner’s former supervisor, Glenn Elliot, and Texas Attorney General Greg Abbott, and Smith said he plans to address the question of whether anti-gay discrimination is widespread in the AG’s Office. Smith, who once worked for Democratic former Attorney General Dan Morales, said he believes Morales added sexual orientation to a nondiscrimination policy in the agency’s employee handbook during the 1990s. But he said Abbott, a Republican who took office in 2002, removed sexual orientation from the handbook. Abbott has been an outspoken opponent of gay rights.
The lawsuit, filed Nov. 5 in Travis County District Court, states that in Gardner’s last performance evaluation, dated April 21, 2008, he received an overall rating of "very good," one step below the highest rating of "outstanding." Despite Gardner’s above-average job performance, his manager, Elliott, directed him to "not to be so out," the lawsuit states.
Smith said Elliot denied to other employees that he knew Gardner was gay but began to unfairly discipline him. Gardner, who answered the phone in the child support office and earned about $30,000 a year, is seeking reinstatement to a comparable position and back pay.
"If he [Elliott] denies knowing the person’s sexual orientation, then he can deny discriminating based on sexual orientation," Smith said. "He [Gardner] was basically written up for things that he wasn’t doing or things that other employees did on a routine basis, because they weren’t wrong.
"One time they punished him for a call time, where I think they said his line was dead for 18 minutes. He was on a break. … That’s an example of the types of repeated discipline he received," Smith said.
Johnson said he received the case from the attorney referral network of Lambda Legal, the national LGBT civil rights group.
Ken Upton, a senior staff attorney in Lambda Legal’s Dallas office, said it’s an interesting case that could have an impact on LGBT equality, especially if it makes it to the Texas Supreme Court.
Upton said there have been few high-profile LGBT employment discrimination cases in Texas since City of Dallas v. England.
"It would be very helpful if a conservative court concluded that this was a valid complaint," Upton said.
This article appeared in the Dallas Voice print edition November 13, 2009.