Jason Smith

The case of a gay Tyler man who sued the Texas Attorney General’s office for employment discrimination comes before the Court of Appeals in Austin this week.

Vic A. Gardner worked for the AG’s child support division for about three years. He received excellent performance reviews until an office Halloween costume party, the suit alleges. When he attended dressed as a geisha girl, his supervisor determined he was gay.

Once his sexual orientation was assumed by the supervisor, he was repeatedly disciplined until he resigned in February, according to his attorney, Jason Smith of Fort Worth.

In a sworn affidavit, the supervisor admitted he had a religious objection to Gardner being gay.

“You are who you are, but try not to be so out,” Smith said his client was told.

Knowing Gardner’s father was a Baptist minister, the supervisor asked Gardner at one point how he could do that to his father.

In October 2010, a lower court judge ruled the AG had immunity from prosecution and dismissed the case. Gardner appealed in November 2010 but withdrew his appeal in January 2011.

Gardner’s new appeal is asking the court to order a jury trial. The AG contends all Gardner can do is ask for reinstatement. Smith said his client is entitled to lost wages and more.

Since he lost his job, Gardner worked at Dillard’s, but then suffered a heart attack and had no health insurance. He’s now back at work.

Smith believes his client is entitled to compensation for the medical bills that would have been covered by his state health insurance and for mental anguish that may have led to the heart attack.

When Democrat Dan Morales was attorney general, he added sexual orientation to the department’s nondiscrimination policy. Republican Greg Abbott removed that protection after his election in 2002. Abbott also has intervened to block same-sex couples legally married in other states from obtaining divorces in Texas. And he recently issued an opinion saying he believes domestic partner benefits offered by local governments violate the state’s constitutional amendment banning same-sex marriage.

“It’s fair to say the attorney general has not been an advocate for gay and lesbian rights,” Smith said.

Despite a lack of specific protection in law based on sexual orientation, government agencies are barred from discriminating against gay employees under the constitutional principle of equal protection. Smith said pointed to the Mica England case, which prevented the Dallas Police Department from asking about sexual orientation on its employment application and disqualifying applicants based on the answer. He said the case also shows the need for a statewide employment nondiscrimination law that protects LGBT people.

“Discrimination against gay employees is prohibited under the Texas Constitution, which protects all Texans right to pursue life, liberty, and happiness just as God made them,” Gardner claims in his appeal. “Moreover, the Texas Supreme Court recently held that individual government actors are not immune from damages for violating an individual’s rights under the constitution.”

A spokesman in the AG press office said the office typically doesn’t comment on pending lawuits.

The AG questions whether sexual orientation was a motivating factor in the case, according to a deposition.

Lambda Legal indicated this week that they would file a brief in the case based on equal protection and on higherd scrutiny for sexual orientation discrimination.

Smith asked members of the LGBT community to attend oral arguments on May 22 to show support. He said Texas has an open courts system and he believes judges note when the public takes an interest in a case.

The docket is called for 9 a.m. and three cases will be heard that day. He said he expects to present his case at about 10 a.m. but urged anyone interested in coming to arrive earlier. The court is in the same building as the attorney general’s office: Price Daniel Sr. Building, 209 W. 14th St., Room 101, Austin.