Update on Lawsuit Against Texas Military Department Retaliatory Firing of Computer Programmer Over Protected Political Speech

National Guard Bureau Inspector General Refers Complaint to Texas National Guard Inspector General Office

In addition to the lawsuit, John Gately filed a complaint with the Department of Defense Inspector General. After a preliminary review of Gately's charges, the National Guard Bureau Inspector General determined the matter falls under the jurisdiction of the Texas National Guard Inspector General Office and officially referred the case to them under Army Regulation 20-1.

MSgt David E. Eichaker of the National Guard Bureau Inspector General (NGB-IG) responded to Gately’s submission to the Department of Defense Inspector General (DoD IG). 

Gately’s lawsuit alleges that "Higher Ups" directed his termination after he refused to censor a personal press release about a political candidate.

Highlights of Recent Federal Court Order in Gately’s Lawsuit

First Amendment Retaliation Claim Validated: The federal court explicitly ruled that Gately adequately pleaded all four legal elements required to establish a First Amendment retaliation claim under 42 U.S.C. § 1983.

Core Political Speech Recognized: The judge affirmed that Gately’s statements regarding a local political election fell "squarely into the 'public concern' bucket," emphasizing that his comments as Republican Precinct Chair represented core political speech in which he maintained a powerful constitutional interest.

Presumption in Favor of Free Speech: The court applied the Pickering balancing test and determined that Gately’s interest in speaking about a public election outweighed the department’s interest in suppressing the speech. The court rejected TMD’s claim that the speech disrupted workplace "harmony," noting that Gately's political release relied entirely on publicly available sources.

Reinstatement Remedy Preserved: While sovereign immunity limits certain retrospective claims, the court confirmed that a state official's continued refusal to re-employ an individual following a retaliatory discharge constitutes an ongoing constitutional violation under Ex parte Young. Consequently, Gately's claim for prospective reinstatement remains fully intact.

Background on John Gately’s lawsuit against Texas Military Department

Gately, a ten-year employee and computer programmer for the Texas Military Department (TMD) and a Master Sergeant in the Texas State Guard, filed a federal lawsuit on June 2, 2026, in the United States District Court for the Western District of Texas. The complaint (Case No. 26-1480) alleges that Gately was wrongfully terminated in violation of his First Amendment rights after refusing to remove a political press release he authored in his personal capacity as a Republican Precinct Chair. David Sergi and Jessica Cousineau of Sergi & Associates of San Marcos, TX, filed the lawsuit.

The lawsuit names Major General Thomas M. Suelzer, Adjutant General of Texas; Mike W. Gorby, Executive Director of the Office of State Administration; John Doe(s; and the State of Texas as defendants.

According to the lawsuit, Gately has an outstanding employment record with multiple commendations over more than a decade of service and was sworn in as Republican Precinct Chair for Precinct 338 in January 2026. On March 12, 2026, acting in his capacity as Precinct Chair, Gately published a press release about Round Rock, TX, mayoral candidate Kelly Hall. The press release discussed Hall's service record and claims regarding his discharge from the Texas State Guard.

The lawsuit says shortly after the press release was posted online, Gately’s TMD supervisors, acting on instructions from "higher-ups," repeatedly directed him to remove the post. Despite confirmation from the TMD Government Affairs Office that his speech was protected under the First Amendment, Gately was told that refusing to comply would result in his termination. On March 19, 2026, Gately was fired.

"This is a clear-cut case of government overreach and a blatant violation of the most fundamental right guaranteed to every American," said David K. Sergi, lead attorney for Gately. "John was speaking as a private citizen about a significant public concern. The Texas Military Department cannot use its power as an employer to silence political discourse or punish employees for exercising their constitutional rights outside of the workplace."

Throughout his career, Gately received dozens of awards, including the Texas Outstanding Service Medal six times and the Texas Medal of Merit five times. His performance reviews consistently indicated that he "Exceeded Job Expectations."

The lawsuit seeks a declaratory judgment that the termination was unconstitutional, as well as reinstatement, back pay, and compensatory damages for emotional distress and reputational harm.

"Political liberty is the bedrock of our democracy," Sergi continued. "When a state agency fires a model employee because they don't like his personal political speech, it threatens the rights of every public servant in Texas."
 

At this point, I have spent $61,762 in legal fees seeking accountability, not because I wanted a fight, but because I refused to surrender my constitutional rights.

The lawsuit, Gately v. Suelzer et al. (Case No. 1:26-cv-01480-ABD), filed by David Sergi of Sergi & Associates in San Marcos, Texas, challenges my termination after I refused to censor political statements I wrote in my personal capacity as a Republican Precinct Chair.

The federal court has ruled that I adequately pleaded all four elements of a First Amendment retaliation claim under 42 U.S.C. § 1983. The Court recognized that my statements about a local election were core political speech on a matter of public concern. It further found that my interest in speaking outweighed the department’s claimed interest in workplace “harmony,” particularly because my release relied entirely on publicly available information.

The Court also preserved my request for reinstatement. A continued refusal to re-employ someone after a retaliatory termination can be an ongoing constitutional violation, and that part of this fight moves forward.

I have also instructed my attorney to pursue a state lawsuit concerning violations of my rights under the Texas Constitution. I am doing this because federal and state constitutional protections both matter, and because sovereign-immunity limits can restrict the remedies available in federal court. Reinstatement is important, but it is not the whole issue. State law provides another avenue for the courts to examine the conduct, determine responsibility, and address the harm caused.

The Texas Constitution protects free speech, too. Article I, Section 8 provides that every person is free to speak, write, and publish opinions on any subject. My political statements were made in my personal capacity as a Republican Precinct Chair, concerning a public election, not as part of my government job.

Texas law says the same thing in plain terms. Texas Government Code § 556.003 provides that state employees have the rights of freedom of association and political participation guaranteed by the Texas and United States Constitutions.

My speech was made personally, as a Republican Precinct Chair, about a public election. I was not using government time, government equipment, government resources, or government authority to make my views known. The Texas Government Code recognizes that being a state employee does not require a person to surrender the constitutional rights every other citizen has.

The federal judge’s ruling matters because the Court has already found that I adequately pleaded a First Amendment retaliation claim and recognized that my statements were core political speech on a matter of public concern. The Court also found, at this stage of the case, that my interest in speaking outweighed the department’s claimed interest in suppressing that speech.

That federal ruling does not decide the Texas constitutional claims for the state court, but it is important. It confirms that this was not minor workplace gossip or misconduct. It was protected political speech. I am pursuing the state case because Texas’ Constitution deserves to be enforced as well, and because accountability should not disappear simply because one court’s available remedies are limited.

But this fight is not just about getting my job back. Reinstatement is only one part of it. This is about accountability for those who took an oath and failed to honor it.

Money comes and goes. Your word either means what you say it means, or it does not. Integrity should not be a moving target, especially for people entrusted with public authority. When it becomes one, taxpayers are the ones who ultimately pay the price.

It is also hard dealing with the same agency that fired you while it appears to be looking for, or trying to manufacture, new claims to pressure you into removing yourself from the department altogether.

That is how people get worn down. If you do not have the money to fight, you may never find justice. And when no one can afford to hold an agency accountable, the people responsible can continue violating the rights of other members.

That is why it matters that we vote for honest, truthful political leaders, people who understand that public service is not a shield from accountability.

Our government has three equal branches, and there is more than one way to hold bad actors accountable.

Ruling Denies State’s Motion to Dismiss Core Constitutional Claim, Affirming Public Employees’ Right to Engage in Political Speech
 

AUSTIN, TEXAS — In a major victory for free speech and public employee rights, a federal court has denied the Texas Military Department’s (TMD) motion to dismiss a First Amendment retaliation lawsuit brought by computer programmer and Texas State Guard Master Sergeant John Gately. With the federal court's rejection of the motion to dismiss, the case now advances to discovery.
 

The court’s ruling clears the way for Gately’s lawsuit to proceed against TMD leaders  Major General Thomas M. Suelzer, Adjutant General of Texas, and Mike W. Gorby, Executive Director of the Office of State Administration, in their official capacities, allowing Gately to pursue full reinstatement to his position as well as attorney’s fees and court costs.

The lawsuit, Gately v. Suelzer et al. (Case No. 1:26-cv-01480-ABD), filed by David Sergi of Sergi & Associates, San Marcos, TX, challenges Gately’s wrongful termination after he refused to censor political statements he authored in his personal capacity as a Republican Precinct Chair.
Key Highlights of the Federal Court Order

• First Amendment Retaliation Claim Validated: The federal court explicitly ruled that Gately adequately pleaded all four legal elements required to establish a First Amendment retaliation claim under 42 U.S.C. § 1983.
• Core Political Speech Recognized: The judge affirmed that Gately’s statements regarding a local political election fell "squarely into the 'public concern' bucket," emphasizing that his comments as Republican Precinct Chair represented core political speech in which he maintained a powerful constitutional interest.
• Presumption in Favor of Free Speech: The court applied the Pickering balancing test and determined that Gately’s interest in speaking about a public election outweighed the department’s interest in suppressing the speech. The court rejected TMD’s claim that the speech disrupted workplace "harmony," noting that Gately's political release relied entirely on publicly available sources.
• Reinstatement Remedy Preserved: While sovereign immunity limits certain retrospective claims, the court confirmed that a state official's continued refusal to re-employ an individual following a retaliatory discharge constitutes an ongoing constitutional violation under Ex parte Young. Consequently, Gately's claim for prospective reinstatement remains fully intact.
   

"This decision is a decisive victory for John Gately and a vital safeguard for every public servant across Texas," said David Sergi, Gately’s attorney. "The state tried to bury this case under technical immunity defenses, but the court saw through it. The judge confirmed what we have said from day one: government agencies cannot weaponize employment power to punish employees for participating in political speech outside the workplace."
 

"John acted entirely within his rights as a private citizen and party official," Sergi added. "By keeping our claim for reinstatement alive, the federal court has signaled that Texas state agencies will be held accountable when they violate the United States Constitution."
 

Gately served as a computer programmer for the Texas Military Department for more than ten years, consistently earning "Exceeded Job Expectations" performance reviews and receiving numerous state awards. In January 2026, he was sworn in as Republican Precinct Chair for Precinct 338.
 

On March 12, 2026, acting in his personal role as a Republican Precinct Chair, Gately issued a public press release addressing local election candidates. TMD supervisors then demanded that Gately remove the political post, claiming the instructions came from "higher-ups." When Gately refused to comply with the unconstitutional order, TMD terminated his employment on March 19, 2026.
 

For media interviews with David Sergi, Attorney, please contact Kevin Lampe at (312) 617-7280 or kevin@kurthlampe.com.