Friday, March 13, 2009 at 5:18 p.m.
During closing arguments today, the lawyer for a Newport Beach Police Department sergeant who claims he was denied a promotion to lieutenant because of rumors that he's a homosexual described the department's managers as "a bunch of gossipy men" willing to lie under oath about their anti-gay sentiment and determination to promote employees loyal to them rather than "the truth."
"They weren't going to give [Sgt. Neil Harvey] the position because he wasn't quite the manly man they were," John Girardi told a jury at Orange County's Central Courthouse in Santa Ana. "If anyone had taken the time to get beyond the slur, they would have found they had an asset."
James J. McDonald Jr., an Irvine-based lawyer for Newport Beach and its police department, conceded that Harvey is a fine sergeant but urged jurors not to focus on "feelings."
"The fact is that he was just not ready to be a lieutenant," said McDonald. "He doesn't have the leadership skills. The best of the best are chosen."
But Girardi pointed out discrepancies in how Harvey and Craig Fox, another lieutenant candidate at one point, were treated in the promotional process. According to testimony and records, Harvey was denied performance ratings for three years leading up to an official evaluation of his readiness to become a lieutenant. He asked for an evaluation from his supervisor before the competition and was denied.
Fox, whom Girardi called the secretly favored candidate of management, requested two overdue evaluations and received both before the lieutenant selection process.
Girardi said, "When Fox asked, they (NBPD bosses) couldn't do it fast enough."
Fox won the job and is now the right-hand man to Chief John Klein.
When a lieutenant slot opened again after 2007, Harvey won top scores in the written and oral exams (each blind graded), but was panned by Klein's selection crew whose opinions accounted for 50 percent of the final ranking. Again, Harvey didn't get the job.
During the trial, Girardi produced a veteran police witness, Sgt. John Hougan, who testified that he'd once heard Klein utter an anti-gay slur against Harvey, who is not gay but has owned a home in gay-friendly Laguna Beach and, though dates women, isn't married.
Klein, who has been present in the courtroom each day, denied making a slur and said he always assumed Harvey was heterosexual, in part, because one of his girlfriends had introduced him to his wife. Any criticism he had for Harvey pertained solely to his lack of leadership skills, the chief testified.
Girardi called the city's refusal to admit to the discrimination "hogwash," praised the six department employees who testified for Harvey as "brave and courageous" and asked jurors to put themselves in Harvey's position, knowing that more than 25 colleagues had uttered anti-gay slurs against him over the years.
"What is it like to show up everyday at work and be the object of scorn, have people behind your back call you a fag," said Girardi. "That didn't happen for days or months. It occurred for years and it was widespread."
McDonald fired back in his closing argument, defending testimony by police bosses as "consistent" and questioning Hougan's credibility about the slurs.
"Sgt. Harvey was not perceived to be a homosexual at the Newport Beach Police Department," he said. "To the contrary, Harvey was uniformly perceived to be a ladies man. He was always dating women."
Besides, said McDonald, not all discrimination is wrong.
"This is a case about whether illegal discrimination occurred," he said. "There is no right to promotion."
"What happened to Neil wasn't right," said Girardi.
--R. Scott Moxley / OC Weekly