Kenneth Hagel was a police officer in the Borough of Sea Girt, New Jersey Police Department. He began working full-time at the Department in 1993, while also working as a Navy reservist. Hagel was required to attend training in his capacity as a reservist, and the Department covered his absences with part-time officers or by offering his shifts as overtime to other full-time officers. From 1993 to 2007, Hagel did not recall any issue with the scheduling of his weekend drills or annual training.
Around 2007, Hagel began to experience bullying at the Department. For example, Hagel would be billed for magazine subscriptions and other items he did not order and would receive anonymous drawings of male genitalia. In 2007, the Department held a promotional exam for sergeant, in which Hagel participated. The Department ultimately promoted Kevin Davenport, who received the highest scores, and John O’Connor, who received identical overall scores to Hagel. According to Hagel, the bullying intensified after Davenport’s promotion, as Davenport was responsible for scheduling, and allegedly expressed his frustration over Hagel’s military obligations and their impact on the schedule.
On one occasion, someone placed a photograph of Hagel attending the annual “Navy Ball” with markups alleging that Hagel had recently performed fellatio on another sailor. Other defaced photographs were placed in Hagel’s locker, always depicting him in military uniform, and often suggesting that Hagel was a homosexual. Fellow officer Michael Lance made the following allegations: “Davenport comment that ‘all Navy men are gay,’ and on several occasions he heard Davenport say that Navy men including plaintiff were ‘pole-smokers,’ a reference to oral sex. Lance witnessed Davenport draw an ‘L’ on plaintiff’s forehead on more than one photograph, including one from plaintiff’s Facebook account when plaintiff left it open, and he saw Davenport draw penises on two other photos.
“Lance saw pictures of women with plaintiff’s face superimposed on them, and Davenport showed them to Lance. When asked how many times Davenport showed such pictures while Lance and others were around, Lance estimated ‘at least 20 times,’ which did not include ‘them being plastered throughout the entire police department.’
“Lance saw Davenport ‘a few times’ deface a photo of Hagel and slip it under the door of Hagel’s locker with a comment like ‘Here you go. Add this to your file, dick, asshole.’ Also, while at work, Lance saw Davenport cut a manila envelope to the size and shape of a license plate, put it in a printer to add the typed words ‘I’m gay 4 U,’ and tape it to the rear license plate of plaintiff’s personal vehicle.”
In 2016, the Department held another promotional exam for sergeant. Due to a lapse in communication, Hagel submitted his request to participate one day past the deadline and was rejected. He claimed that his treatment resulted in severe emotional distress, including depression, sleeplessness, and a loss of appetite. Hagel ultimately chose to retire from the Department about two years before he was eligible for his pension. He sued the Borough, alleging that it discriminatorily failed to promote him in 2016, and a jury awarded him $262,000 in back and front pay, $500,000 in emotional distress damages, and $1 million in punitive damages. The Borough appealed.
The Borough’s main argument was that although Hagel may have alleged a prima facia case of discrimination with regard to his lost promotion, the Borough legitimately rejected his application as untimely. The Court found that due to the overwhelming evidence of Davenport’s animus toward Hagel, the jury properly rejected the Borough’s excuse as pretextual. In reaching this conclusion, the Court highlighted the fact that the Borough admitted that Hagel was qualified to work as a sergeant. The Borough also failed to explain why it would have been prejudiced by accepting Hagel’s one-day late submission, as there was no testimony about the cost or inconvenience of doing so. Although there was no evidence that the Department ever accepted late submissions, there was also no evidence of it strictly adhering to the deadline. For these reasons, the jury reasonably concluded that Hagel was denied a promotion as the result of his military service, and/or his perceived sexual orientation in violation of the law. The Court went on to reject the Borough’s arguments that the damages were excessive.
Hagel v. Davenport, DOCKET NO A-3652-19, 2024 WL 444738 (N.J. Super. Ct. App. Div., 2024).