Judges uphold $1.5M award to Sea Girt ex-cop who claimed anti-military bias
SEA GIRT - The borough lost its appeal of a $1.5 million award to a former borough police officer who convinced a jury the police department passed him over for a promotion because he is a U.S. Navy reservist.
A panel of judges with the Appellate Division of Superior Court earlier this week affirmed the award to Kenneth P. Hagel, who retired from the police department in 2016 after being passed over for a promotion to the rank of sergeant.
Hagel claimed in a lawsuit against the borough and its former police chief, Kevin Davenport, that he was subjected to anti-military discrimination and on-the-job harassment that included being falsely portrayed as gay or homosexual.
He took his claims to trial in 2019, and a Monmouth County jury returned a verdict awarding him $1,762,800, including $1 million in punitive damages.
The trial judge, Superior Court Judge Mara Zazzali-Hogan, later reduced the punitive damages by $250,000 to $750,000, resulting in an award to Hagel of $1,512,800, plus attorney's fees of $595,501.
The borough appealed the award and the trial judge's denial of the borough's request for a new trial.
Judges Michael J. Haas, Greta Goode Brown and Lisa A. Puglisi of the Appellate Division of Superior Court upheld Zazzali-Hogan's decisions in their unanimous opinion.
Hagel, first hired by the department in 1988, asserted in his lawsuit that he was subjected to various forms of harassment, including being bombarded with magazine subscriptions he did not order and being subjected to photographs of himself that had been defaced with drawings of male genitalia and pictures of women with his head superimposed on them.
Hagel, in the suit, alleged that Davenport falsely told other officers he was gay or bisexual and referred to him by homophobic slurs.
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He testified at the trial that in his work locker, he found a photo of him at the annual Navy ball on which were written the words, "An American War Hero????' followed by the words, "Or American zero,'' in all capital letters, according to the appellate decision.
The photo also was defaced with a reference to an accusation of performing oral sex on another sailor, Hagel testified.
A Navy reservist assigned to the facility formerly known as Naval Air Station Lakehurst, Hagel was required to report for training drills one weekend per month and two weeks of annual training, the decision noted.
When Davenport took over police department scheduling, Hagel claimed he frequently failed to consider his Navy reserve duty dates, according to the decision. When Hagel questioned him about it, "The response I got was, Hagel, you're a pain in the a--. You and your. military are a pain the a-- with the schedule,'' the court decision said.
Hagel testified at the trial that Davenport told him more than once, "that the Department would never hire another full-time officer who was in the reserves, and that being in the reserves meant that plaintiff would never get promoted,'' according to the decision. He also testified he believed Davenport made the offensive drawings.
Hagel claimed that because of the anti-military bias, he was unfairly excluded from being considered for a promotion to sergeant in 2013, when he missed the deadline to submit paperwork by one day despite making his intentions known earlier that he wanted to be considered.
"We agree with the trial court that plaintiff made a prima facie case of his intent and effort to participate in the 2013 promotion process,'' the appellate judges wrote.
"Defendants admitted that plaintiff was qualified to be a sergeant, and the lateness of his letter of intent was the sole reason for not letting him apply,'' they wrote.
"The jury was entitled to find that Davenport had made all of the statements and documents described above over a long period of time; that he disparaged plaintiff's military service, either directly for the inconvenience it caused, or indirectly by equating Navy service with homosexuality; and that he did so in a workplace that regarded homosexuality as shameful and as proof of lesser ability to perform the job,'' the judges wrote.
"Against the weight of that evidence, we agree with the court that a jury could find defendants' reason for failing to promote plaintiff to be so lacking in credibility that the record would support the inference that discriminatory animus against plaintiff's military service was more likely than not a motive behind their failure to let him participate in the 2013 promotion process,'' they wrote.
The judges found it was reasonably likely that Hagel would have been promoted to sergeant in the absence of the discrimination.
The appellate panel rejected arguments by the defendants that the damages awarded to Hagel were excessive.
"Neither the emotional damages award nor the remitted punitive damages award was a miscarriage of justice for being excessive,'' they said.
Kathleen Hopkins, a reporter in New Jersey since 1985, covers crime, court cases, legal issues and just about every major murder trial to hit Monmouth and Ocean counties. Contact her at khopkins@app.com.
This article originally appeared on Asbury Park Press: Sea Girt must pay $1.5M to ex-cop passed over for promotion - court
