It’s been three years since a jury awarded former police officer Kenneth Hagel $1.5 million in compensation after he suffered discrimination at the hands of the Borough of Sea Girt and its police department. However, the defendants in the case objected to the verdict and appealed to the Appellate Division of the state’s Superior Court for a new trial. Last week, that court denied their request, confirming the original verdict including the $600,000 in attorney fees that were awarded to the victim.

The original case filed by Mr. Hagel accused the Sea Girl police chief of having discriminated against him because of his military service, of refusing to promote him to the rank of sergeant, and of directing homophobic remarks at him. At the time of the trial, Hagel was 50 years old and had been a member of the U.S. Navy Reserves in Lakehurst for over 30 years. He participated in monthly training sessions held at various locations throughout the United States and was repeatedly deployed internationally. He claimed that Chief Kevin Davenport discriminated against him because of these responsibilities and that the chief had also believed that he was a homosexual and made sexually discriminating and harassing remarks based on that mistaken belief.

The claim indicated that the discrimination began in 2013 when Davenport was promoted from acting chief to police chief and took over scheduling. Both Mr. Hagel and another witness testified about both acts and statements of discrimination by Chief Davenport against Mr. Hagel, including placing a mock license plate with the words “I’m Gay” over the rear license plate of Hagel’s car; saying that all Navy guys are gay and using vulgar language about military personnel in general and Hagel in particular in front of junior officers; unlawfully accessing national law enforcement databases to conduct illegal searches on Hagel; and telling Hagel that Sea Girt would never hire or promote another military person. Davenport’s actions went so far as to assign another police officer to confirm that Hagel was truly attending military drills, having him followed by private investigators, and cutting out photos of Hagel’s face, defacing them with vulgar drawings of a sexual act, then placing them in locations around the Sea Girt police department headquarters.

Hagel’s suit claimed that he was wrongfully denied a promotion to sergeant twice because of anti-military discrimination and sexual orientation discrimination and that Davenport’s behaviors and actions had caused fellow officers to wrongly believe that he was gay. The jury found Davenport engaged in anti-military and false sexual orientation discrimination and awarded Hagel $262,800 in compensatory damages for lost salary and benefits, $500,000 in emotional distress damages, and $1 million in punitive damages. Those punitive damages were later cut to $750,000, but the court later added $600,000 in attorney fees.

The Borough of Sea Court argued that a new trial was in order because the instructions that had been given to jurors were confusing and mixed two different theories of liability under New Jersey’s Law Against Discrimination. They asserted that Hagel’s promotion had been denied based on the lateness of his application, but the Appellate Court denied their request, noting that both theories that were presented to the jury were applicable and that the instructions to the jury had been clear. They also pointed out that some of Davenport’s statements were direct evidence of his hostility toward a protected class and demonstrated a direct causal connection between his hostility and the department’s refusal to accept the late application. They also pointed to the drawings and altered photos as proof of Davenport’s “discriminatory animus” against Hagel.

In their decision, the appellate judges wrote, “The numerous and unmistakably hostile expressions of animus that Davenport admitted to making or which the jury reasonably attributed to him were not ‘stray remarks,”‘ because he was part of the decision-making process for the promotion. This, we conclude, amply justified the trial court’s implicit application of the Myers and Smith perspective, particularly in light of the Law Against Discrimination remedial purposes.”

New Jersey’s Law Against Discrimination explicitly forbids employers from discriminating against employees or potential employees based on their membership in a long list of protected categories. Both the jury and the appellate court agreed that the police officer’s egregious demonstrations of hostility and the Sea Girt police department’s denial of the officer’s promotion met the criteria for violations of the law. If you have been similarly discriminated against or harassed based on your membership in a protected class, we can help. Contact us to schedule an appointment so we can discuss your situation and review your options.