U.S. District Judge Terry R. Means, of the U.S. District Court in Fort Worth, Texas, ruled on March 12, 2012, that Jacqueline Gill can pursue her discrimination claim against officials at Tarrant County College District who have denied her the opportunity to be considered for a permanent full-time faculty position teaching English. Rejecting the defendants' motion to dismiss the case, which was filed on Ms. Gill's behalf by Lambda Legal, Judge Means found that "the unconstitutionality of sexual-orientation discrimination lacking a rational relationship to a legitimate governmental aim was clearly established" as of 2009-2010 when Gill claims to have suffered discrimination by the defendants.
According to her complaint, Gill was hired as a full-time temporary instructor in August 2009, and was told during the interview process that the school "uniformly hired" temporary instructors who had successfully completed a term and then applied for a permanent position. As a result of an incident in her class on October 28, 2009, Gill reported a student to the department chair. In a subsequent meeting on November 9, the department chair, Eric Devlin, told Gill that the student complained that Gill was flirting with female students in the class, which Gill denied. Gill claims that Devlin then "responded with a lengthy diatribe about 'homosexuals' and how the Texas public views them. During the story, Devlin state that Texas was a conservative state and the [TCCD] was a conservative institution. He concluded that, because of this, 'Texas and [TCCD] do not like homosexuals." Devlin subsequently observed one of Gill's classes and complimented her afterwards on her "good job."
However, Gill was not appointed to a permanent position when she subsequently applied, and was not even allowed to interview for any permanent positions, although she had been contracted to keep teaching as an adjunct for Spring Term 2010. Gill subsequently met with the Dean of Humanities of the school, Devlin's boss, in August 2010, and related to him what Devlin had stated about "homosexuals," but nothing was done, and she said her complaints to other administrators "fell on deaf ears." Even though she taught a full load as a temporary instructor in Fall 2010, she received no subsequent teaching assignments and was effectively unemployed after that.
Her lawsuit alleges a violation of her equal protection rights against Devlin and Dean Antonio Howell. They moved to dismiss the claims against them in their individual capacities, arguing failure to state a legal claim, and they also claimed qualified immunity in their official capacities. A suit against government employees in their official capacity would require proving a discriminatory policy of the school. In rejecting these dismissal motions, Judge Means found that Gill's factual allegations were sufficient to raise a sexual orientation discrimination claim, and that Gill's allegations were also sufficient, at this stage of the proceeding, to overcome a qualified immunity defense.
After asserting that as of 2009 it was well established as a matter of federal law that anti-gay discrimination may violate the Equal Protection Clause, Judge Means wrote, "If the Court assumes, as it must [for purposes of a motion to dismiss], that Devlin and Howell comported themselves as alleged, then it must conclude that a reasonable person in their position would have understood that his conduct constituted sexual-orientation discrimination in violation of the Equal Protection Clause of the Constitution. Accordingly, Gill's pleading is sufficient to survive Devlin and Howell's motion asserting qualified immunity against Gill's equal-protection claims." Further, Judge Means found that Gill's factual allegations were sufficient, at this stage of the case, to maintain a claim for punitive damages against Devlin and Howell in their individual capacities, pending a showing that they acted maliciously.
Judge Means also found that Gill's factual allegations, specifically about the remarks attributed to Devlin which she subsequently repeated in her conversation with Dean Howell, would be sufficient to withstand a dismissal motion on the "official capacity" claims. While cautioning that the court was not ruling on the ultimate merits of the claim, Judge Means found that "Gill has plausibly alleged a custom or policy that TCCD would or should have been aware of" concerning sexual orientation discrimination in faculty hiring.
These rulings entitle Gill to a trial of her claims unless settlement intervenes. Gill is represented in the suit by Ken Upton of Lambda Legal's Dallas office and cooperating pro bono attorney Benjamin Williams from Gibson, Dunn & Crutcher.