Hurley v. Atl Cty Pol Dept

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit

3-18-1999

Hurley v. Atl Cty Pol Dept
Precedential or Non-Precedential:

Docket 96-5633,96-5661

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Volume 1 of 2

Filed March 18, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-5633, 96-5634, 96-5661, 96-5738

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,
husband and wife,

v.

THE ATLANTIC CITY POLICE DEPARTMENT,
a subdivision of the City of Atlantic City;
HENRY MADAMBA; NICHOLAS V. RIFICE;
JOHN MOONEY; JOHN DOES 1 THROUGH 50
inclusive, fictitious name defendants, jointly,
severally, and in the alternative

(Camden New Jersey District Civil No. 93-260)

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,
wife and husband

v.

THE ATLANTIC CITY POLICE DEPARTMENT,
a subdivision of the City of Atlantic City;
HENRY MADAMBA; NICHOLAS V. RIFICE;
JOHN MOONEY; JOHN DOES 1 THROUGH 50,
inclusive, jointly, severally, and in the alternative

(Camden, New Jersey District Civil No. 94-1122)

Atlantic City Police Department,
Appellant No. 96-5633

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,
husband and wife,

v.
THE ATLANTIC CITY POLICE DEPARTMENT,
a subdivision of the City of Atlantic City;
HENRY MADAMBA; NICHOLAS V. RIFICE;
JOHN MOONEY; JOHN DOES 1 THROUGH 50,
inclusive, fictitious name defendants, jointly,
severally, and in the alternative

(Camden New Jersey District Civil No. 93-260)

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,
wife and husband

v.

THE ATLANTIC CITY POLICE DEPARTMENT,
a subdivision of the City of Atlantic City;
HENRY MADAMBA; NICHOLAS V. RIFICE;
JOHN MOONEY; JOHN DOES 1 THROUGH 50,
inclusive, jointly, severally, and in the alternative

(Camden, New Jersey District Civil No. 94-1122)

Henry Madamba,
Appellant No. 96-5634

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,
husband and wife,

v.

THE ATLANTIC CITY POLICE DEPARTMENT,
a subdivision of the City of Atlantic City;
HENRY MADAMBA; NICHOLAS V. RIFICE;
JOHN MOONEY; JOHN DOES 1 THROUGH 50,
inclusive, fictitious name defendants, jointly,
severally, and in the alternative

(Camden New Jersey District Civil No. 93-260)

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,
wife and husband

v.

2
THE ATLANTIC CITY POLICE DEPARTMENT,
a subdivision of the City of Atlantic City;
HENRY MADAMBA; NICHOLAS V. RIFICE;
JOHN MOONEY; JOHN DOES 1 THROUGH 50,
inclusive, jointly, severally, and in the alternative

(Camden New Jersey District Civil No. 94-1122)

Donna M. Hurley, and Patrick K. Hurley,
Appellants No. 96-5661

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,
husband and wife,

v.

THE ATLANTIC CITY POLICE DEPARTMENT,
a subdivision of the City of Atlantic City;
HENRY MADAMBA; NICHOLAS V. RIFICE;
JOHN MOONEY; JOHN DOES 1 THROUGH 50,
inclusive, fictitious name defendants, jointly,
severally, and in the alternative

(Camden New Jersey District Civil No. 93-260)

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY,
wife and husband

v.

THE ATLANTIC CITY POLICE DEPARTMENT,
a subdivision of the City of Atlantic City;
HENRY MADAMBA; NICHOLAS V. RIFICE;
JOHN MOONEY; JOHN DOES 1 THROUGH 50,
inclusive, jointly, severally, and in the alternative

(Camden, New Jersey District Civil No. 94-1122)

Donna M. Hurley, and Patrick K. Hurley,
Appellants No. 96-5738

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 93-cv-00260, 94-cv-01122)

3
Argued May 4, 1998
Reargued October 5, 1998

BEFORE: BECKER, Chief Judge, SCIRICA and COWEN,
Circuit Judges

(Filed March 18, 1999)

Clifford L. Van Syoc, Esq. (Argued)
Van Syoc Law Offices
200 Lake Drive East, Suite 110
Woodland Falls Park
Cherry Hill, New Jersey 08002

Counsel for Plaintiffs-Appellees/
Cross-Appellants

Dennis M. Tuohy, Esq. (Argued)
Tuohy & Tuohy
20 South Tennessee Avenue
Atlantic City, New Jersey 08401

Counsel for Defendant-Appellant/
Cross-Appellee, Atlantic City Police
Department

Mark Falk, Esq. (Argued)
Barry & McMoran
One Newark Center, 18th Floor
Newark, New Jersey 07102

Counsel for Defendant-Appellant/
Cross-Appellee, Henry Madamba

Richard L. Goldstein, Esq. (Argued)
Marshall, Dennehey, Warner,
Coleman & Goggin
Three Greentree Center, Suite 304
Marlton, New Jersey 08053-3405

Counsel for Defendant/Cross-
Appellee, Nicholas V. Rifice

4
 Thomas F. Bradley, Esq. (Argued)
Hankin, Sandson & Sandman
30 South New York Avenue
Atlantic City, New Jersey 08401

Counsel for Defendant/Cross-
Appellee, John J. Mooney

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by defendants Henry Madamba and the
Atlantic City Police Department (ACPD) from an amended
judgment entered upon a jury's determination that
Madamba discriminated against plaintiff Donna Hurley on
the basis of her sex in violation of the New Jersey Law
Against Discrimination (LAD), N.J. Stat. Ann. 10:5-1 et
seq., and that the ACPD discriminated against her on the
basis of her sex in violation of the LAD and Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C.S 2000e et seq.
Donna Hurley cross-appeals from an amended judgment
entered upon the jury's determination that defendant
Nicholas Rifice did not discriminate against her in violation
of the LAD. She also cross-appeals from the district court's
order granting defendant John Mooney's motion for
summary judgment and the district court's order denying
her motions for prejudgment interest and an additur and
granting her motion for attorney's fees subject to a reduced
hourly rate. In addition, plaintiff Patrick Hurley appeals
from the district court's order granting defendants' motion
for summary judgment on his loss of consortium claim.

Because the harassing conduct tolerated by the ACPD
was longstanding and egregious, and because the trial
court did not commit reversible error in its evidentiary
decisions or its jury instructions, we will affirm the
amended judgment insofar as it imposes liability and
compensatory damages on the ACPD. However, because the
punitive damages instructions did not require actual
participation by upper management or willful indifference
as required by New Jersey law, we will vacate the amended

5
judgment to the extent it imposes punitive damages against
the ACPD and order a new trial on that issue.

Our recent decision in Failla v. City of Passaic, 146 F.3d
149 (3d Cir. 1998), set forth our understanding of liability
for aiding and abetting under the New Jersey LAD. In light
of Failla, it is evident that the jury instructions on aiding
and abetting erred in two critical respects. We will therefore
reverse the amended judgment entered against Madamba
because the instructions failed to require a finding that
Madamba substantially assisted the harassment. We will
also vacate the judgment entered in favor of Rifice because
the instructions wrongly directed the jury to absolve Rifice
unless he took affirmative harassing acts. However, we will
affirm the district court's order granting Mooney's motion
for summary judgment because, as we understand New
Jersey law, he could not, as a nonsupervisory employee, be
liable for aiding and abetting the ACPD's failure to prevent
and redress harassment even if he affirmatively harassed
Donna Hurley. We will also affirm the district court's order
denying plaintiff's motions for prejudgment interest and an
additur and granting plaintiff's motion for attorney's fees
subject to a reduced hourly rate.1

I. Facts and Procedural History2

Plaintiff Donna Hurley has been an officer with the ACPD
since February of 1978. She joined the force shortly after
becoming the first female graduate of the Atlantic City
Police Academy. Her husband, plaintiff Patrick Hurley, is
also an officer with the ACPD. For purposes of clarity, we
will refer to Donna Hurley as "Hurley," to Patrick Hurley as
"Mr. Hurley," and to Mrs. and Mr. Hurley collectively as the
"Hurleys" or "plaintiffs." The Hurleys met while training at
the Police Academy and married in 1980. Hurley alleges
that she was subjected to sexual harassment as early as
her training at the Police Academy in the late 1970s. In
1981 her then-supervisor, Sergeant Walter Reay, harassed
_________________________________________________________________

1. The district court had jurisdiction over this case pursuant to 28
U.S.C. SS 1331, 1343, and 1367. We have jurisdiction over this appeal
pursuant to 28 U.S.C. S 1291.

2. The facts recited were all adduced at trial.

6
her by making sexually derogatory comments about her
hygiene during roll call, disturbed her while she was
changing in the drill room, spoke to her in condescending
tones during radio transmissions, and held her to stricter
standards than male officers. During that year, fellow
officers allegedly referred to Hurley as "the cunt" and placed
a tampon and a copy of Hustler magazine in her squad car.

Despite these and other obstacles,3 Hurley was promoted
in November of 1987 and became the first female sergeant
at the ACPD. Although her title changed as a result of this
promotion, Hurley claims that her assignments continued
to be menial and provided no useful experience. At one
point, for example, Hurley was assigned to the Juvenile
Truancy Task Force, where her job was to keep statistics on
juvenile truants and where, although a sergeant, she
supervised no one.

The ACPD divides its officers into three shifts: 8:00 a.m.
to 4:00 p.m., or "Alpha Platoon"; 4:00 p.m. to 12:00
midnight, or "Bravo Platoon"; and midnight to 8:00 a.m., or
"Charlie Platoon." After working approximately two years as
a sergeant on Alpha Platoon, Hurley was transferred in
January 1990 to desk sergeant of Charlie Platoon, where
she came under the direct command of defendant Captain
Henry Madamba. The events at the core of this case
occurred while Hurley worked in Charlie Platoon. During
her first week on this assignment, Madamba allegedly told
plaintiff that upper management sent a woman to his unit
to "break his balls," and that he "did not expect [her] to be
here on this shift very long." App. at 2749-50. Madamba
also allegedly advised Hurley to request a hardship transfer
_________________________________________________________________

3. In addition to the harassment, Hurley testified that, prior to January
of 1987, she was given "lowly positions that offered no useful experience
or potential for advancement." Hurley v. Atlantic City Police Dep't, 933
F.
Supp. 396, 405 (D.N.J. 1996). For example, she testified that she was
assigned to the Records Bureau to perform menial copying tasks. See
App. at 2420. She also testified that she was assigned to security desk
duty, which consisted of signing civilians in and out of the department
building, and fire watch, which consisted of watching one particular
building for an outbreak of fire. Hurley did not, however, include a
failure to train or promote claim in her complaint.

7
out of Charlie Platoon and gave a male officer with less
seniority a more favorable schedule.

Hurley testified that she was sexually harassed
throughout her entire tour on Charlie Platoon by her
superiors and her coworkers. This harassment included
"keying out" her radio transmissions,4 demeaning
comments by Madamba during roll call, and exclusion from
sergeants' meetings. In addition, officers placed a sanitary
napkin with sergeant's stripes over the roll call podium and
affixed a dildo either to the wall or the podium in the roll
call room. Finally, she was the subject of sexually explicit
graffiti and drawings of herself at three locations on city
property: the roll call room, the roll call bathroom, and the
bathroom of the Masonic Temple, a building used by both
employees and the public. Several of the most egregious
examples of the offensive material, of appallingly low
character, are set forth in the margin.5
_________________________________________________________________

4. "Keying out" or "clicking out" consists of depressing the "On" and
"Off " buttons of a radio transmitter to block the communications of the
officer who is using the airway.

5. Hurley was compelled to attend roll call in front of a life-size
drawing
of herself performing oral sex as her supervisor, Madamba, sat eight feet
away. In addition, the following graffiti appeared on a wall in the roll
call
bathroom, which was commonly used and open to the public:

Oh sweet Donna Hurley
With cunt hair so curley
Your blond hair seems so soft and stays in place
When I toss off my cookies in your face
I'd like to stick my cock in your ass
But when I think of Lt. Andros my cock gets soft fast
So keep up your spirits and don't get depressed
Cause even though your a cunt I'd like to press yourflesh
Though in uniform your rude and brass
Your just another sex machine with my cock in your ass

Next to this was a graphic drawing of a naked women labeled "Donna
Hurley" and bearing sergeant's stripes. Near the drawing, and apparently
written by several different hands, were the scrawled phrases "just
another fuck doll," "she should look this good." and "Lt. Andros was
here." Lieutenant Andros was a co-worker with whom Hurley was
rumored to have had an affair.

8
Hurley also testified that Madamba personally harassed
her while she was on Charlie Platoon. In addition to the
insults he directed at her during roll call and his decision
to exclude her from sergeants' meetings, Captain Madamba
allegedly refused to take action against officers who "keyed
out" plaintiff 's radio transmissions, and told her that she
was "too emotional" about the sanitary napkin incident. At
one point, he reacted to the latest sexually explicit graffiti
by rushing to see it and laughingly informing Hurley, in
front of her colleagues, that "it's really bad," but he took no
action to remove or prevent the appearance of the graffiti.
In September of 1990, he sent a memorandum to defendant
Rifice, an Inspector at the time, stating that Hurley had
abused her sick leave. As a result, then-Chief of Police
Robert McDuffie sent Hurley a memorandum requiring her
to produce a doctor's note every time she took sick leave.

Hurley testified that when she complained to Madamba
that the harassment at Charlie Platoon was becoming too
much for her, he replied that women in the private sector
are protected against such harassment because they"sleep
with their bosses." App. at 2776-77. When she attempted to
change the topic of conversation and commented on
Madamba's apparent weight loss, he stated that he lost
weight by "having sex a few times a day," and that women
came to him "when they're ready." App. at 2498-2508.
Hurley interpreted this entire conversation as a solicitation
for sex.

Hurley also testified that another sergeant on Charlie
Platoon, defendant John Mooney, sexually discriminated
against her in two ways. First, Mooney made several
sexually derogatory comments to her, some of which
Madamba witnessed yet did nothing to stop. For example,
Mooney remarked that he had heard that Hurley "liked it
hard and stiff," and suggested that, when Hurley met with
Police Captain McKenna, she was actually performing oral
sex on him. See X App. at A2516, A2514. On another
occasion, when Hurley was unable to locate her coffee mug,
Mooney asked her if she wanted to drink out of his jock
cup. See id. at A2514. Second, Mooney used his influence,
which far exceeded his position as sergeant, to transfer
Hurley to an undesirable assignment because of her sex.6
_________________________________________________________________

6. Although Hurley and Mooney shared the same rank at that time, she
alleges that

9
In particular, Hurley claims that Mooney was responsible
for her transfer from her position as Court Liaison Officer
to the Juvenile Truancy Task Force.

After Mr. Hurley's efforts to intervene on his wife's behalf
failed, Hurley submitted a memorandum to Madamba on
November 1, 1990, detailing the harassment she
experienced during her tour on Charlie Platoon and
requesting a transfer. Madamba forwarded Hurley's memo
to the Chief of Police along with a memo of his own
requesting that Internal Affairs conduct an investigation of
Hurley for allegedly lying in the memo as part of a
conspiracy to get money from the ACPD. No investigation
along these lines was ever conducted.

Shortly thereafter, Hurley was transferred to the Alpha
Platoon shift of the Property and Evidence Unit. Although
she had requested a transfer out of Charlie Platoon, Hurley
alleges that this particular transfer constituted retaliation
for her sexual harassment memorandum because the
Property and Evidence Unit was widely regarded as an
undesirable position, and the Alpha Platoon was
incompatible with the personal schedule to which she had
become adjusted while working on Charlie Platoon. Hurley
also alleges that when she was transferred to the Property
and Evidence Unit, she was denied a three percent pay
increase that ACPD officers receive when transferred to
plain clothes duty. She eventually received this increase on
April 20, 1993, retroactive to November 8, 1990. Hurley
contends that the harassment continued even after she left
Charlie Platoon.
_________________________________________________________________

Mooney had obtained power far beyond that which would otherwise
be expected to be held by a mere sergeant. As a result of his years
of acting as the former chief 's aid and confidant, the political
prominence of his councilman father, the high position of his
brother-in-law, Inspector Polk, who is married to Mooney's sister,
Captain Michelle Polk, and the widespread perception in the
department that Mooney was destined to become the Chief, Mooney
was in a position to abuse his real authority without fear of
consequences.

Appellee's Br. at 37.

10
For example, the graffiti apparently remained on the
walls well after her transfer. Rifice, who had been promoted
to Police Chief, testified at trial that he heard complaints
about the graffiti as late as March of 1992, and Mr. Hurley
took photographs of the graffiti in the summer of 1992. In
addition, an EEOC investigation concluded that there was
sexual graffiti in Hurley's work area as late as June of
1993. Moreover, on June 13, 1992, while Hurley was
attending a police seminar, Mooney, then Captain of
Charlie Platoon, allegedly approached her and called her
"the ass up from the Property Room" in front of two other
sergeants.

Hurley further avers that the Chief of Police, defendant
Rifice, was aware of her plight and failed to take steps to
protect her and discipline the perpetrators. She also
testified that Rifice personally committed several affirmative
acts of sexual discrimination against her. These acts
included: (1) transferring her to the Property and Evidence
Unit; (2) denying her access to Chief McDuffie; (3) denying
her a three percent pay raise when she transferred to
plainclothes duty; (4) denying her request for funeral leave;
and (5) condoning an improper Internal Affairs investigation
into her conduct while she was assigned to the Property
Room.

Hurley worked continuously until July 26, 1994, after
which she went on an extended paid sick leave. She asserts
that, as a result of the harassment, she has suffered severe
emotional distress that has interfered with her work, her
personal life, and her family life. Mr. Hurley alleges that the
harassment has detrimentally affected his relationship with
his wife.

On July 10, 1992, Hurley filed complaints with both the
United States Equal Employment Opportunity Commission
(EEOC) and the New Jersey Department of Law and Public
Safety, Division of Civil Rights (DCR). Both complaints
named the ACPD as the sole respondent and alleged that
Hurley had been harassed while on Charlie Platoon. Hurley
submitted an affidavit in connection with her EEOC
complaint alleging that Madamba and Mooney harassed her
during her tour on Charlie Platoon. She claimed that
obscene drawings of her remained visible as late as March

11
of 1992, and that her transfer to the Property and Evidence
Unit and denial of the three percent pay raise were in
retaliation for her complaints of sexual harassment.

On January 30, 1993, before the EEOC had issued
plaintiff a right to sue letter pursuant to 42 U.S.C. S 2000e-
(f)(1), the Hurleys filed the district court complaint which
stated all of Hurley's instant claims. Subsequently, on
October 12, 1993, the EEOC issued a determination on
Hurley's charge. The EEOC investigator found probable
cause to believe that Hurley had been sexually harassed
while she was on Charlie Platoon, but no probable cause on
retaliation charge regarding the transfer to the Property and
Evidence Unit and the denial of the three percent pay
increase. On March 7, 1994, the Hurleys filed a second
complaint. This complaint relied on the facts stated in the
previous complaint and alleged discrimination pursuant to
42 U.S.C. S 2000e-2 and retaliation pursuant to 42 U.S.C.
S 2000e-3(a). The district court subsequently consolidated
these two complaints.7

Following extensive discovery, each of the defendants
moved for summary judgment. The district court granted
Mooney's motion for summary judgment, and dismissed all
claims against Madamba and Rifice with the exception of
Hurley's aiding and abetting claims under the LAD.
Additionally, the court dismissed all claims against the
ACPD except for Hurley's hostile work environment claim
under Title VII, Section 1983, and the LAD.

The jury trial lasted more than two months. At the
conclusion of the liability portion of the trial, the jury
rendered a verdict against Madamba and the ACPD but
found Rifice not liable. The jury awarded $575,000 in
compensatory damages and awarded punitive damages
against the ACPD but not against Madamba. A punitive
damage hearing was conducted before the jury, at the end
of which the jury awarded Hurley $700,000 in punitive
damages.

The ACPD and Madamba moved for judgment as a matter
_________________________________________________________________

7. We note that the Hurleys' retaliation claims, arising from the ACPD's
acts after this lawsuit was filed, are not part of this appeal.

12
of law or, in the alternative, a new trial or a remittitur.
Hurley moved for a new trial as to Rifice, and an additur
with respect to the entire damages award. In addition,
Rifice and Mooney, as well as Hurley, moved for attorneys'
fees and costs.

The district court denied defendants' motion for a new
trial and for a remittitur as to punitive damages and also
denied plaintiff's motion for an additur. However, the court
granted defendants' motions for a remittitur with respect to
the compensatory damages award, which the court remitted
to $175,000. The court also denied the defendants' fee
petitions, but granted plaintiff's petition, subject to a
reduced hourly rate and the exclusion of hours spent in
pursuit of unsuccessful claims. Hurley accepted the
remittitur, and the court awarded counsel fees and costs in
favor of Hurley in the amount of $516,046 and $70,135,
respectively. The court then entered an amended judgment.
This appeal and cross-appeals followed.

II. The ACPD's Liability

The ACPD argues that it is entitled to a new trial for five
reasons. First, it contends that the district court abused its
discretion under Rule 403 of the Federal Rules of Evidence
by admitting "highly inflammatory and largely irrelevant
evidence regarding alleged misconduct at the ACPD to
which the plaintiff was not exposed." ACPD's Br. at 2.
Second, it contends that the district court's ruling that
plaintiff's psychiatric expert could testify about a second
diagnosis that was not contained in his reports "result[ed]
in prejudicial surprise `inconsistent with substantial
justice.' " Id. at 40 (quoting Conway v. Chemical Leaman
Tank Lines, Inc., 687 F.2d 108, 111-12 (5th Cir. 1982)).
Third, the ACPD asserts that the punitive damage award of
$700,000 against it is so excessive that it creates an
inference that the jury's liability verdict "resulted from its
passion and prejudice toward the City of Atlantic City." Id.
at 46 (citing Dunn v. HOVIC, 1 F.3d 1371, 1382 (3d Cir.) (en
banc), modified on other grounds, 13 F.3d 58 (3d Cir.
1993)). Fourth, the ACPD claims that the district court's
jury charge under the LAD was misleading, confusing, and
contrary to the law. Finally, on reargument, which we held

13
in the wake of the recently decided Supreme Court cases of
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.
Ct. 2257 (1998), and Faragher v. City of Boca Raton, 524
U.S. 775, 118 S. Ct. 2275 (1998), the ACPD submits that
these cases entitle it to a new trial on liability. We will
address these arguments in turn.

A. Evidence Not Obviously Linked to Hurley's Experience in
Charlie Platoon

During trial, and over defendants' objections, the district
court permitted a number of witnesses to testify about
alleged incidents of harassment and retaliation that were
either remote in time from the "accrual date"8 or involved
matters of which Hurley was unaware until after shefiled
suit. This testimony can be divided into three categories: (1)
testimony by four women who were associated with the
ACPD about incidents of sexual harassment and retaliation
of which Hurley had no knowledge until after commencing
suit; (2) testimony by eight male police officers about
"locker-room" conversations between men outside the
presence of women; and (3) testimony by Patrick and
Donna Hurley about several incidents of sexual harassment
against Mrs. Hurley between 1978 and 1981.

The ACPD raises several arguments to support its
contention that the district court abused its discretion by
admitting this testimony. First, the ACPD points out that
Hurley was unaware of most of these comments until after
she filed suit. Thus, the comments could not possibly
_________________________________________________________________

8. In its August 4, 1995 opinion and order, the district court concluded
that the claims that formed the basis of plaintiff 's sexual
discrimination
allegations began in late 1989 or early 1990, upon plaintiff 's transfer
to
Charlie Platoon. App. at 5752. However, at the beginning of trial, the
court expanded the time frame from which plaintiff could assert claims
of sexual discrimination to January 20, 1987, based upon the court's
conclusion that such claims would have been within the six-year statute
of limitations that the court found applicable to claims under the LAD.
In Montells v. Haynes, 627 A.2d 654, 659 (N.J. 1993), the New Jersey
Supreme Court adopted a two-year statute of limitations for claims
under the LAD. However, the Montells court also held that its decision
did not apply to cases pending at that time or to cases in which the
operative facts arose before the date of the court's decision, see id. at
662, circumstances present here.

14
contribute to a hostile work environment for her. Second, it
argues that it was impossible to rebut most of the alleged
incidents at trial because they occurred at unspecified
times and locations. Third, the ACPD asserts that incidents
from 1978 to 1981 were too remote in time to be probative.
Finally, the ACPD maintains that the district court's
limiting instructions regarding this evidence were
insufficient to offset the unfair prejudice resulting from
these rulings.

1. The Challenged Evidence

The district court permitted four women who had been
associated with the ACPD to testify regarding the
harassment of women within the department. Hurley did
not witness any of these incidents, nor did she become
aware of the alleged harassment until after she commenced
suit.

Martha Donovan, a municipal prosecutor for the City of
Atlantic City, testified about some mistreatment of Hurley
that she had observed and also testified about an incident
involving Sergeant Edward Yard of the ACPD. According to
Ms. Donovan's testimony, in the summer of 1989 Sergeant
Yard called Ms. Donovan a "cunt" and stated that he "ought
to slap [her] face" for giving him an order; the incident
occurred in front of fifty other people, including other police
officers, in the hallway of the courthouse. See IV App. at
A831. Donovan immediately complained to her supervisor
and the officer ultimately apologized. At some point
thereafter, Sergeant Yard's responsibilities were changed,
and he had minimal contacts with Ms. Donovan
thenceforth. Ms. Donovan never reported the incident to the
ACPD supervisory staff.

Julia Cardy and Lisa O'Keefe, two civilian employees of
the ACPD in the payroll department, testified that they were
generally dissatisfied with their male ACPD supervisors.
Ms. Cardy testified that in 1992, as a result of reporting her
supervisor, Sergeant Griggs, to his immediate supervisor,
Captain MacDonald, for his misbehavior, she was retaliated
against and subjected to chauvinistic remarks. Ms. Cardy
further testified that women were treated "pretty poorly" if
they "spoke out" against the mistreatment. V App. at

15
A1166, A1171. Ms. O'Keefe stated that Sergeant Griggs and
Captain MacDonald treated her with disrespect over a long
period of time extending to at least 1992, when there was
apparently some ill-feeling towards female employees as a
result of Hurley's lawsuit. See IV App. at A858-60. She also
testified that complaints to Rifice received no response, see
id. at A862, although she ultimately filed a union grievance
and the offending officers were removed from authority over
the payroll department.

Officer Deborah Rando of the ACPD testified about the
derogatory and sexually demeaning statements made to her
in 1992 by her supervisor, defendant Mooney. At one point,
Mooney referred to her conduct in profane terms and, when
she objected, informed her that no one would believe her if
she complained. See id. at A943. Despite this, she did
complain to Mooney's supervisor, who warned her to think
about her career and told her not to repeat her allegations
to anyone. See id. at A948-50.

The district court permitted eight male police officers
from the ACPD to testify at trial about derogatory
comments made about women generally. These officers
testified that, at least from 1990 to the time of trial, women
were commonly referred to as "cunts," "douche bags,"
"broads," "bitches," and, as a group, "the crack troop." App.
at A413, A768. In addition, one officer testified that most
inspectors and captains commonly referred to Hurley as
"the whacky [sic] cunt." Id. at 443. These same officers
testified, however, that these comments were always made
outside the presence of women. Hurley was unaware of
these comments until after she commenced suit.

Finally, the district court permitted both Patrick and
Donna Hurley to testify, over objection, about events
occurring well before the January 20, 1987 accrual date.
For example, Mr. Hurley testified about alleged acts of
discrimination against his wife dating back to her tenure at
the Police Academy in 1978. He also testified about
comments allegedly made by Hurley's supervisor, Sergeant
Walter Reay, between 1978 and 1980. Reay supposedly
asked Hurley about her personal hygiene and made weekly
comments during roll call.

16
Hurley also testified about various incidents that
allegedly occurred in 1981, when she was a patrol officer
and Louis Rivera was her partner. Hurley testified that she
"heard" that she was referred to as a "cunt." Id. at 2388-90.
The court also permitted her to testify that, during 1981, a
Hustler magazine was left on her patrol car seat and a
tampon was hung from her rear view mirror.

2. Admissibility of the Evidence

In the district court's view, all of the evidence was
admitted for the same purpose: to "permit[ ] the jury to
more intelligently evaluate the evidence that did create
liability." Hurley, 933 F. Supp. at 411. The court reasoned
that permitting

evidence of other women's experiences at the ACPD, of
the attitudes of male officers towards women generally,
and of Hurley's experiences prior to 1987 served
several important purposes in this trial. It allowed the
jury to gain insight into the motives, attitudes, and
intentions of the defendants. It gave them the
opportunity to evaluate the adequacy of management's
response to Hurley's complaints during the statutory
period. It provided the jury with a sense of whether the
events that took place during the statutory period were
anomalous or accidental, or instead were part of a
"pervasive and severe" pattern.

Plaintiff's treatment during the statutory period was
unquestionably influenced by and related to her
treatment throughout the course of her career at the
ACPD. Plaintiff's experience was reflective of the
general attitudes of the men around her; those
attitudes also influenced, and were revealed in, the
treatment of other women in the ACPD.

Id.

Although the district court believed that evidence of past
harassment was "crucial to the jury's evaluation of the
work environment at the ACPD," id. at 410, the court
instructed the jury not to consider the evidence directly for
purposes of liability. See id. at 411. Specifically, the court
stated:

17
 You are to consider whether each defendant has
engaged in sexual discrimination for the period from
January 20, 1987, through January 20, 1993. You
may consider evidence from before and after these
dates to help you evaluate the defendants' conduct
from January 20, 1987, through January 20, 1993,
but liability attaches, if at all, only to defendants'
conduct during this period.

Id. (alteration removed). The court believed that, "[b]y
admitting the evidence but forbidding the jury to consider
it as directly relating to liability, [it was] able to balance the
interests of the plaintiff and the defendants." Id. In
addition, the court instructed the jury that, in determining
whether or not a hostile work environment existed, it could
only consider conduct that actually altered Hurley's own
work environment during the relevant period. See App. at
A5278.

The evidence issues fall largely within the ambit of
Federal Rule of Evidence 401, which defines relevant
evidence as "evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more or less probable than it
would be without the evidence."9 Rule 401 does not raise a
high standard. See In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 782-83 (3d Cir. 1994). Also implicated in our
discussion is Rule 403, which provides, in pertinent part,
_________________________________________________________________

9. The parties have not argued that we need apply New Jersey procedure
to the New Jersey claims, and we will apply the federal rules to both. See
Purgess v. Sharrock, 33 F.3d 134, 139-40 (2d Cir. 1994); cf. Wm. T.
Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 104 (3d Cir.
1982) (holding that the federal rule favoring admissibility of relevant
evidence applies to state law claims in federal cases to which state law
privileges might otherwise apply); Salas by Salas v. Wang, 846 F.2d 897,
905-06 (3d Cir. 1988) (discussing the standard for applying state
evidentiary rules in pure diversity cases). Nor is there any indication
that
New Jersey admissibility rules differ in any relevant respect, as we think
New Jersey's law recognizes the same principles we discuss in text. See
Rendine v. Pantzer, 648 A.2d 223, 237-38 (N.J. Super. Ct. App. Div.
1994) (discussing the admissibility of evidence of discrimination against
other people to prove motive or intent under N.J.R.E. 404(b)), aff 'd in
relevant part, 661 A.2d 1202, 1213 (N.J. 1995).

18
that "[relevant] evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury
. . . ." We review evidentiary rulings for abuse of discretion,
see Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 132
(3d Cir. 1997), with substantial deference under Rule 403.10
We conclude that the district court did not abuse its
discretion under Rules 401 or 403 by admitting most of the
challenged evidence, and that the error with respect to a
portion thereof was harmless.

Evidence that women other than the plaintiff were
subjected to a hostile work environment clearly meets Rule
401's requirements in a number of situations. For example,
a plaintiff may show that, while she was not personally
subjected to harassing conduct, her working conditions
were nevertheless altered as a result of witnessing a
defendant's hostility towards other women at the
workplace. See Lehmann, 626 A.2d at 457 ("A woman's
perception that her work environment is hostile to women
will obviously be reinforced if she witnesses the harassment
of other female workers.").

A plaintiff's knowledge of harassment or pervasively
sexist attitudes is not, however, a requirement for admitting
testimony on those subjects in a harassment suit. Evidence
of harassment of other women and widespread sexism is
also probative of "whether one of the principal non-
discriminatory reasons asserted by [an employer] for its
actions was in fact a pretext for . . . discrimination." Glass
v. Philadelphia Elec. Corp., 34 F.3d 188, 194 (3d Cir. 1994);
see also Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir.
1995). In Glass, we found reversible error where the
plaintiff attempted to introduce evidence of past racial
harassment to explain negative evaluations and the trial
court excluded it because it was time-barred. Glass relied
_________________________________________________________________

10. We have held that a trial judge is given very substantial discretion
when striking a Rule 403 balance, see United States v. Eufrasio, 935
F.2d 553, 572 (3d Cir. 1991), and that "a trial judge's decision to admit
or exclude evidence under Fed. R. Evid. 403 may not be reversed unless
it is arbitrary and irrational." Bhaya v. Westinghouse Elec. Corp., 922
F.2d 184, 187 (3d Cir. 1990) (quotation marks omitted).

19
on Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th
Cir. 1988), adopting its holding that circumstantial proof of
discrimination, including evidence of past harassment and
evidence of discrimination against others in the protected
class, is admissible. Moreover, in Rule 403 terms, this
evidence is highly probative, hence it is unlikely that any
putative prejudice therefrom will be unfair or will outweigh
its value.11

The principles established by our precedent apply to this
case. Evidence of other acts of harassment is extremely
probative as to whether the harassment was sexually
discriminatory and whether the ACPD knew or should have
known that sexual harassment was occurring despite the
formal existence of an anti-harassment policy. See West v.
Philadelphia Elec. Co., 45 F.3d 744, 752 (3d Cir. 1995).
Neither of these questions depends on the plaintiff 's
knowledge of incidents; instead, they go to the motive
behind the harassment, which may help the jury interpret
otherwise ambiguous acts, and to the employer's liability.
This kind of evidence is particularly important given the
ACPD's main defenses at trial, which were that the
incidents of abuse Hurley suffered were trivial horseplay to
which both men and women were subjected and that its
written sexual harassment policy was sufficient to insulate
it from liability. Contrary to the ACPD's position, it is
implausible in the extreme that Hurley was somehow
immune from the pervasive sexism at the ACPD, as it was
described by both female and male officers. See Hurley, 933
F. Supp. at 411; see also Josey v. John R. Hollingsworth
Corp., 996 F.2d 632 (3d Cir. 1993) (holding that employees'
_________________________________________________________________

11. We note that, but for these precepts, clever discriminators might
isolate each instance of discrimination and make it seem trivial or
neutral. See Glass, 45 F.3d at 195; see also Aman v. Cort Furniture
Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (evidence of time-barred
harassment and discrimination against others in the plaintiff 's class was
relevant); Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511
(11th Cir. 1989) (acts directed at others can be evidence of
discrimination against the plaintiff). We also note apposite New Jersey
precedent that a plaintiff may present evidence about the harassment of
other women to establish employer liability. See Lehmann v. Toys `R' Us,
Inc., 626 A.2d 445, 462 (N.J. 1993).

20
remarks and racially derogatory notes sent by unidentified
people were circumstantial evidence that management
permitted an atmosphere of prejudice to infect the
workplace).

The challenged evidence creates a basis for an inference
that Hurley was targeted for abuse because she was a
woman. It also gives reason to infer that the ACPD knew or
should have known not only what was happening to its
female officers but also, and most importantly, that the
written sexual harassment policy was ineffective, and
patently so. Indeed, it is hard to imagine evidence more
relevant to the issue of whether a sexual harassment policy
was generally effective than evidence that male officers did
not respect it and that female officers were not protected by
it.

Officer Rando and Ms. Cardy, for example, both testified
about the dismissive and even retaliatory treatment they
experienced when they reported male officers' misbehavior,
and this was relevant, probative evidence that the ACPD
was consistently insensitive to female employees'
experiences of harassment. See Hunter v. Allis-Chalmers
Corp., 797 F.2d 1417 (7th Cir. 1986) (evidence of frequent
misconduct against plaintiff and others was "pertinent,
perhaps essential" to the employer liability determination);
Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985) (same),
aff'd sub nom. Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57 (1986). This evidence remains highly relevant under
Ellerth and Faragher. See Faragher, 118 S. Ct. at 2293
(discussing evidence of city's general failure to disseminate
and enforce its sexual harassment policy in rejecting the
availability of the affirmative defense in a particular case of
harassment).

Aside from its relevance to the issue of whether the ACPD
is liable for the hostile environment Hurley encountered,
the evidence is also relevant to her intentional sex
discrimination, quid pro quo, and retaliation claims. The
general atmosphere of sexism reflected by the challenged
evidence is quite probative of whether decisionmakers at
the ACPD felt free to take sex into account when making
employment decisions, when deciding whether to abuse
their positions by asking for sexual favors, and when

21
responding to sexual harassment complaints. As Glass
held, evidence of pervasive sexual harassment makes
retaliation claims more credible, because harassers may be
expected to resent attempts to curb their male prerogatives.
See Glass, 34 F.3d at 195; see also Hawkins v. Hennepin
Technical Ctr., 900 F.2d 153, 156 (8th Cir. 1990).

Evidence of sexually derogatory and sexist harassment
makes disparate treatment claims more credible as well,
since such discriminatory acts stem from similar motives.
See Glass, 34 F.3d at 192; Josey, 996 F.2d at 641;
Hawkins, 900 F.2d at 155; Hunter, 797 F.2d at 1421. Other
courts have found similarly with respect to quid pro quo
claims. See Heyne, 69 F.3d at 1479-80; Phillips v. Smalley
Maintenance Servs., Inc., 711 F.2d 1524, 1532 (11th Cir.
1983); Sowers v. Kemira, Inc., 701 F. Supp. 809, 816 (S.D.
Ga. 1988). In this case, because of its high probative value,
there was no abuse of discretion in admitting the
challenged testimony from other officers.12 Any putative
prejudice was not unfair, and at all events was outweighed
by the probative value. Nor are any of the other Rule 403
factors present to counsel exclusion.

We do believe that evidence of events from 1979 to 1981
was improperly admitted because it was too distant in time
from the events at the center of the ACPD's liability. Hurley
did not claim a continuing violation from 1979 to 1992, and
the district court abused its discretion when it admitted
evidence from that distinct period in Hurley's career. We
may find such error harmless only if "it is highly probable
that the error did not affect the outcome of the case."
Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 53 (3d
Cir. 1989); see also McQueeney v. Wilmington Trust Co.,
779 F.2d 916, 924, 927-28 (3d Cir. 1985).
_________________________________________________________________

12. We also note that the alleged vagueness in the testimony, which the
ACPD emphasizes, is limited to the testimony about general conditions
in the ACPD and not to the many specific incidents to which the
witnesses testified. This "vagueness" stems from the fact that male
officers' misconduct was apparently so common as to blend into the
background except when something particularly egregious occurred. The
extent to which witnesses' inability to identify dates and places affected
the witnesses' credibility could be, and was, addressed on cross-
examination.

22
In this case, the error was harmless. As the district court
noted:

This is a case where the plaintiff was compelled to
attend roll call in front of a life-size drawing of herself
performing oral sex as her supervisor, Madamba, sat
eight feet away; where, in addition to pervasive graffiti
directed at plaintiff, a sanitary napkin bearing
sergeant's stripes dangled over the podium from which
she spoke, and a dildo was affixed to a wall or ceiling
nearby; and where plaintiff's professionalism and
performance were constantly undermined because the
men on the force could not tolerate a women among
them. It is a case where the plaintiff's supervisor
responded to plaintiff's entreaties by insinuating that
he might be able to help her if only she would sleep
with him.

Hurley, 933 F. Supp. at 413 (citations omitted). When
viewed against the uncontestably relevant and admissible
evidence, it is highly improbable that the improperly
admitted evidence affected the judgment in this case.
Indeed, were we to hold all of the evidence challenged by
the ACPD inadmissible, we believe that its admission would
still amount to harmless error, so clear is the evidence of
the harassment Hurley experienced.

For the foregoing reasons, the ACPD's Rule 403-based
evidentiary arguments fail.

B. Dr. Hoyme's "Surprise" Testimony

Dr. Hoyme, plaintiff's psychological expert, issued his
first report on November 16, 1994. In that report, he wrote
that "[m]y diagnosis [of Donna and Patrick Hurley] is
Adjustment Disorder with mixed features of anxiety and
depressed mood (309.28 DSM IV) . . . . This diagnosis
carries an implied causal connection between their
traumatic experiences (sexual harassment, hostile work
environment, and subsequent harassment) and their
symptoms." App. at 5387. Subsequently, on February 20,
1995, Dr. Hoyme submitted another report in response to
a report issued by defendants' psychological expert, Dr.
Toborowsky. According to Dr. Hoyme's rebuttal report:

23
 Mrs. Hurley has experienced severe emotional injury
and pain as the result of sexual harassment in the
course of her work in the Atlantic City Police
Department. Contrary to Dr. Toborowsky's stance, it is
not necessary to prove that she has developed
diagnosable psychiatric disorder in order to recognize
or validate this substantial harm.

Id. at 5849.

On March 2, 1995, the magistrate judge ordered that Dr.
Hoyme's rebuttal report be barred as untimely. Hurley
appealed this decision to the district court, and the court
initially upheld the magistrate's decision. The court also
ruled, however, that Hurley could renew this motion at trial
when the court "would have a better sense of the
significance of the testimony." Hurley, 933 F. Supp. at 408.
Hurley renewed her motion at trial, and the district court
overruled the magistrate's decision "[b]ecause [the court
was] concerned that the magistrate judge's sanctions
against the plaintiff cut too close to the essential truth-
seeking function of the Court . . . ." Id. At trial, Dr. Hoyme
testified about "another diagnosis that didn't neatly fit into
the DSM criteria": a reaction to a "psychological assault."
App. at 1667-68. He further testified that the defendants'
conduct constituted an "aggressive attack on her" and a
kind of "sexual assault" which caused severe pain
comparable to a physical touching. Id. at 1726-29. In
closing, Hurley's counsel also referred to Dr. Hoyme's
"psychological assault" testimony as a basis for awarding
damages.

The ACPD argues that Dr. Hoyme's reference to a "second
diagnosis" regarding a "psychological assault" on Donna
Hurley constituted unfair surprise because the testimony
was materially different from that offered previously and
provided the defendants with no meaningful opportunity for
rebuttal. This unfair surprise, according to the ACPD, was
"inconsistent with substantial justice" and warrants a new
trial. We disagree.

A district court's decision to allow an expert to testify
beyond the scope of his report is reviewed under an abuse
of discretion standard. See Greate Bay Hotel & Casino v.

24
Tose, 34 F.3d 1227, 1236 (3d Cir. 1994). "We determine
whether there has been an abuse of discretion by
considering four factors: `(1) the prejudice or surprise in
fact to the opposing party, (2) the ability of the party to cure
the prejudice, (3) the extent of disruption of the orderly and
efficient trial of the case, and (4) the bad faith or willfulness
of the non-compliance.' " Id. (quoting Beissel v. Pittsburgh &
Lake Erie R. Co., 801 F.2d 143, 150 (3d Cir. 1986)).

We cannot conclude that the district court abused its
discretion by permitting Dr. Hoyme's so-called "second
diagnosis." First, notwithstanding Dr. Hoyme's rebuttal
report, his initial report hinted strongly at this "second
diagnosis," because it contained an explanation of the
severe harm inflicted by the extensive sexual harassment
Hurley experienced. Second, the defendants actually
received the rebuttal report and were unquestionably aware
of the appealability of the magistrate judge's order.
Moreover, the defendants had several weeks after Dr.
Hoyme's testimony to prepare rebuttal testimony and, thus,
cure any possible prejudice. Indeed, Dr. Toborowsky
testified that he had previously read both the deposition
and courtroom testimony of Dr. Hoyme. Third, there was no
need to call any witnesses out of order or any other
disruptions at trial. Finally, while this evidentiary dispute
might have been the product of "discovery-based bickering
between the lawyers" and the "institutional differences
between lawyers, who demand unvarying precision, and
psychiatrists," see Hurley, 933 F. Supp. at 408, there is no
evidence of bad faith.

C. Inference of Jury Prejudice and Passion

The ACPD contends that the $700,000 punitive damage
award was the "product of the same abandonment of`cool
reason' in favor of `outrage and disgust' which shocked the
trial court's conscience with respect to the compensatory
damages." ACPD Br. at 46. Indeed, the ACPD argues that
this "award was so excessive as to give rise to a clear
inference that the jury verdict was the result of mistake,
passion, prejudice or partiality." Id. at 43. Therefore,
according to the ACPD, we must set aside the jury's verdict
and order a new trial. Once again, we disagree.

25
In Dunn, we observed that a defendant would be entitled
to a new trial, rather than remittitur, upon showing that
"the jury verdict resulted from passion or prejudice." Dunn,
1 F.3d at 1383; see also 11 Charles Alan Wright et al.,
Federal Practice and Procedure S 2815, at 165 (2d ed. 1995)
(remittitur is "not proper if the verdict was the result of
passion and prejudice, since prejudice may have infected
the decision of the jury on liability, as well as on damages").
We further rejected the argument, however, that"the size of
the award alone was enough to prove prejudice and
passion." Dunn, 1 F.3d at 1383; see also Mason v. Texaco,
Inc., 948 F.2d 1546, 1561 (10th Cir. 1991) (reducing a
punitive damage award of $25 million by one-half because
it shocked the court's conscience, but upholding the jury's
liability determination because there was no evidence it was
tainted). Here, as in Dunn, the defendant's only evidence of
jury prejudice and passion is the amount of the punitive
damage award itself. This is insufficient, and the ACPD's
argument cannot prevail.

D. Jury Charge on Hostile Work Environment

The ACPD also argues that it is entitled to a new trial
because the district court erred in its charge to the jury on
hostile work environment by mixing different concepts from
Title VII and the LAD. Specifically, defendant contends that
the district court strayed from Lehmann v. Toys`R' Us, Inc.,
626 A.2d 445 (N.J. 1993), in which the New Jersey
Supreme Court formulated the basic standard for
determining whether acts of harassment in the workplace
constitute invidious discrimination in violation of the LAD.
Under the Lehmann standard, a plaintiff must demonstrate
that "the complained-of conduct (1) would not have
occurred but for the employee's gender; and it was (2)
severe or pervasive enough to make a (3) reasonable woman
believe that (4) the conditions of employment are altered
and the working environment is hostile or abusive." Id. at
453.

The ACPD argues that the district court erred when it
instructed the jury to consider ten factors, which the
district court primarily derived from the ABA Model Charge13
_________________________________________________________________

13. Section 104[2][b] of the ABA Model Charge provides the following list
of factors that must be considered in hostile work environment claims:

26
and Title VII caselaw, when determining whether the ACPD
was liable under the LAD. Finally, the ACPD argues that
the district court failed to instruct the jury as to precisely
how each of the factors bore on the issue of sexual
harassment. "We generally review jury instructions for
abuse of discretion to determine whether they are
misleading or inadequate." Woodson v. Scott Paper Co., 109
F.3d 913, 929 (3d Cir.), cert. denied, 118 S. Ct. 299 (1997).
"However, when the question is whether the instructions
misstate the law, our review is plenary." Id. (citing Saverese
v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989)). We review
jury instructions to determine whether, "taken as a whole,
they properly apprised the jury of the issues and the
applicable law." Dressler v. Busch Entertainment Corp., 143
F.3d 778, 780 (3d Cir. 1998) (quotation marks omitted).

Under the first prong of the Lehmann test, a plaintiff
must show "by a preponderance of the evidence that she
suffered discrimination because of her sex." Lehmann, 626
_________________________________________________________________

(1) the total physical environment of the plaintiff's work area;

(2) the degree and type of obscenity that filled the environment of
the workplace, both before and after the plaintiff arrived;

(3) the reasonable expectations of the plaintiff upon entering the
environment;

(4) the nature of the unwelcome sexual acts or words;

(5) the frequency of the offensive encounters;

(6) the severity of the conduct;

(7) the context in which the sexual harassment occurred;

(8) whether the conduct was unwelcome;

(9) the effect on the plaintiff 's psychological well-being;

(10) whether the conduct was physically threatening;

(11) whether it was merely an offensive utterance;

(12) whether it unreasonably interfered with the plaintiff 's work
performance.

ABA Model Charge S 104[2][b] (1994).

27
A.2d at 454. Because the LAD is not a fault or intent-based
statute, a plaintiff "need not show that the employer
intentionally discriminated or harassed her, or intended to
create a hostile work environment." Id. at 454.

The second prong requires that the objectionable conduct
be sufficiently "severe or pervasive" to state an actionable
claim. See id. at 455 ("We emphasize that it is the
harassing conduct that must be severe or pervasive, not its
effect on the plaintiff or on the work environment." (citing
Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991))). In
adopting this test, the court expressly rejected the "regular
and pervasive" standard set forth by this court in Andrews,
895 F.2d at 1482. The New Jersey Supreme Court
concluded that the Andrews test strayed from the United
States Supreme Court's standard in Meritor and "would bar
actions based on a single, extremely severe incident or,
perhaps, even those based on multiple but randomly-
occurring incidents of harassment." Lehmann, 626 A.2d at
455. Indeed, the New Jersey Supreme Court recently
concluded that a plaintiff created a triable issue based on
a single racial slur. See Taylor v. Metzger, 706 A.2d 685
(N.J. 1998).14

The third prong of the Lehmann test considers the
harassment from the perspective of a reasonable woman (or
man, as the case may be). Such an objective, gender-
specific standard, according to the court, "provides
flexibility" by "incorporating community standards" and
focuses attention "on the nature and legality of the
conduct, rather than on the reaction of the individual
plaintiff," Lehmann, 626 A.2d at 458, and it also
"recognize[s] and respect[s] the difference between male and
female perspectives on sexual harassment." Id. at 459.
_________________________________________________________________

14. In Taylor, the plaintiff presented evidence that her chief ranking
supervisor called her a "jungle bunny" in the presence of another
supervising officer. The court concluded that these circumstances "were
sufficient to establish the severity of the harassment and alter the
conditions of plaintiff 's work environment." Id. at 693. Severity is
measured by surrounding circumstances, see id. at 692, and " `[t]he
required showing of severity or seriousness of the harassing conduct
varies inversely with the pervasiveness or frequency of the conduct.' "
Lehmann, 626 A.2d at 455 (quoting Ellison, 924 F.2d at 878).

28
"Only an idiosyncratic response of a hypersensitive plaintiff
to conduct that a reasonable woman would not find
harassing is excluded by the reasonable woman standard."
Id. at 458-59.

Finally, under the fourth Lehmann prong, a plaintiff must
show that "her working conditions were affected by the
harassment to the point at which a reasonable woman
would consider the working environment hostile." Id. at
457. A plaintiff need not demonstrate psychological harm or
economic loss.

In this case, the district court's hostile work environment
sexual harassment charge provided as follows:

It is important to understand that, in determining
whether a hostile work environment existed at the
Atlantic City Police Department, you must consider the
evidence from the perspective of a reasonable woman
in the same position. You must look at the evidence
from the perspective of a reasonable woman's reaction
to a similar environment under similar circumstances.
That is, you must determine whether a reasonable
woman would have been offended or harmed by the
conduct in question. You must evaluate the total
circumstances and determine whether the alleged
harassing behavior could be objectively classified as
the kind of behavior that would seriously affect the
psychological or emotional well-being of a reasonable
woman. The reasonable woman is simply an average
woman of normal sensitivity and emotional make-up.

It is equally important to understand, however, that
the reasonable woman standard applies only to the
issue of liability for hostile work environment sexual
harassment. It does not apply to liability for intentional
sexual harassment, retaliation, or quid pro quo
harassment, nor to the calculation of damages.

Plaintiff has alleged that she has been subjected to a
hostile work environment because of harassment based
on her sex. To prevail on this theory, she need not
demonstrate any job benefits were conditioned on
submitting to hostile sexual conduct or were denied
because of refusing to give in to that conduct. Rather,

29
to establish a claim of hostile work environment sexual
harassment, plaintiff must prove by a preponderance of
the evidence that the conduct about which she
complains, one, would not have occurred but for the
employee's gender, and it was, two, severe or pervasive
enough to make a, three, reasonable woman believe
that, four, the conditions of employment are altered
and the working environment is hostile or abusive.

The more severe the conduct, the less extensive it
need be for you to find it is hostile.

Conversely, the less severe the conduct, the more
persuasive [sic] or regular it should be in order for you
to find that it is hostile.

Plaintiff's hostile work environment claim must be
related to conditions which actually altered her own
work environment. Statements, actions, or conditions
which occurred at the Atlantic City Police Department
outside the presence of plaintiff and plaintiff was
unaware [sic] cannot be considered part of the hostile
work environment, unless you find such statements,
actions or conditions affected the plaintiff 's own work
environment.

In evaluating plaintiff's hostile work environment
claims you should consider the following factors: one,
plaintiff's reasonable expectation upon entering the
workplace; two, the total physical environment of the
area in which plaintiff worked; three, whether plaintiff
was exposed to sexually explicit words or comments,
drawings, graffiti, or obscenity in the workplace, and, if
so, the degree, persistence, and type such [sic]
obscenity to which exposed; four, whether the sexually
explicit words or comments, drawings, graffiti or
obscenity were directed at plaintiff, and, if so, the
frequency of the offensive encounters; five[,] severity of
the conduct and the context in which it occurred; six,
whether the conduct was unwelcome, that is, conduct
plaintiff regarded as unwanted or unpleasant; seven,
the likely effect on a reasonable woman's psychological
well-being; eight, whether the conduct reasonably[sic]
interfered with plaintiff's work performance; nine, the

30
 extent to which supervisors upon learning of sexually
harassing conduct, acted promptly and effectively to
respond to such conduct; [ten], whether the
complained of conduct was directed at men and
woman alike.

It is not enough that the work environment was
generally harsh, friendly [sic], unple[a]sant, crude or
vulgar to all employees of both sexes. In order tofind
a hostile work environment sexual harassment, you
must find that plaintiff was harassed because she is a
woman. The harassing conduct may, but need not be
sexual in nature. Rather, its defining characteristic is
that the harassment occurs because of the victim's sex.

App. at 5276-79.

We conclude that the district court's hostile work
environment charge, taken as a whole, properly apprised
the jury of the issues and law under the LAD. The charge
clearly and accurately set forth the four-prong test set forth
in Lehmann. Moreover, the court's list of factors provided
additional guidance to the jury for its consideration of
whether the requisite elements of liability had been
established. Although this nonexhaustive list was largely
derived from the ABA Model Charge and Title VII caselaw,
we believe that the New Jersey Supreme Court wouldfind
many of these factors useful and relevant for deliberations
in a hostile work environment sexual harassment claim
under the LAD.15 See Lehmann, 626 A.2d at 452 ("In
construing the terms of the LAD, this Court has frequently
looked to federal precedent governing Title VII . . . as a key
source of interpretive authority." (citation and quotation
marks omitted)). As a result, we reject the ACPD's argument.16
_________________________________________________________________

15. Because certain factors may or may not be relevant in any given
case, our conclusion is necessarily limited to the facts of this case.
Moreover, we do not suggest that the New Jersey Supreme Court would
only look to the ABA Model Charge and Title VII caselaw when fashioning
a set of factors to guide the jury in its deliberations.

16. Because we conclude that the ACPD remains liable under the LAD,
we need not consider whether the district court's charge misstated the
law under Title VII.

31
We also find no merit in the ACPD's contention that one
of the factors referenced in the charge, the plaintiff's
reasonable expectation upon entering the workplace, is
inconsistent with Lehmann's requirement that the finder of
fact consider workplace hostility "from the perspective of a
reasonable woman." ACPD's Br. at 49 (quoting Lehmann,
626 A.2d at 457-58). In this case we do not see the harm
from the shifting reference. Indeed, we fail to see how this
distinction could aid the ACPD since, if anything, the
"reasonable expectation upon entering the workplace" factor
seems to give an employer extra leeway when a woman
enters what she knows to be a traditionally male preserve,
whereas the generalized reasonable woman standard is less
concerned with what a workplace has traditionally been like
and focuses on what a reasonable woman may rightfully
expect from her employers. Finally, we reject the ACPD's
contention that the district court erred in failing to instruct
the jury as to precisely how each of the factors bore on the
issue of sexual harassment.

E. Faragher v. City of Boca Raton and Burlington
Industries v. Ellerth

After the initial oral argument on this appeal, the
Supreme Court decided Faragher v. City of Boca Raton and
Burlington Industries v. Ellerth. These decisions
substantially changed the law of Title VII on employer
liability. The ACPD contends that it is entitled to a new trial
under the Ellerth/Faragher standards. For a variety of
reasons, however, we conclude that the new structure and
taxonomy of Title VII liability makes no difference to the
outcome in this case. We first address the ACPD's claim
that it was entitled to an affirmative defense, and then
discuss the effects of Ellerth and Faragher on the "quid pro
quo" claims in the case.

1. The Affirmative Defense

The ACPD claims that the trial court's jury instructions
were defective because the jury was instructed that the
existence of an effective sexual harassment policy was
merely a factor to be considered in imposing liability and
not an absolute defense. There are four problems with this
claim.

32
First, Ellerth and Faragher do not, as the defendants
seem to assume, focus mechanically on the formal
existence of a sexual harassment policy, allowing an
absolute defense to a hostile work environment claim
whenever the employer can point to an anti-harassment
policy of some sort. The necessary elements of a defense are
"(a) that the employer exercised reasonable care to prevent
and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise."
Ellerth, 118 S. Ct. at 2270. A stated policy should be
"suitable to the employment circumstances." Id.

The proof at trial focused extensively on what the ACPD
did and failed to do about the harassment--issuing written
policies but not enforcing them, painting over offensive
graffiti every few months only to see it go up again in
minutes, failing to investigate sexual harassment as it
investigated and punished other forms of misconduct.
Although it diligently attempted to convince the jury that its
policies and procedures protected it, the ACPD failed to
make a colorable case that its policies met the
Ellerth/Faragher standards. See Hurley, 933 F. Supp. at
419; cf. Payton v. New Jersey Turnpike Auth., 691 A.2d 321
(N.J. 1997) (holding that a slow remedial process or one
that leaves an employee exposed to harassment cannot be
effective). In Faragher, in fact, the Court found it
unnecessary to remand for consideration of the newly
codified defense, since the record established that Boca
Raton failed to disseminate its policies or monitor the acts
of its employees, so that as a matter of law it could not
prevail on the defense. See Faragher, 118 S. Ct. at 2293;
see also Booker v. Budget Rent-a-Car Sys., 17 F. Supp. 2d
735 (M.D. Tenn. 1998) (rejecting the affirmative defense on
a summary judgment motion because the employer had
notice of incidents of discrimination but failed to act on it).

A similar analysis applies here. The district court
commented extensively on the ACPD's failure to implement
anti-harassment policies or to inquire into the harassing
behavior of any of its employees. It was evident that
Madamba, a supervisor with the duty to stop harassment,

33
was aware of much of the harassment, even that which he
did not himself inflict. The ACPD insists that there were five
mechanisms that Hurley should have explored in full before
suing: her direct supervisor, Internal Affairs, the Affirmative
Action Officer, the Chief through his "open door policy," and
the union grievance procedure. See ACPD Letter, July 16,
1998, at 5. However, there was extensive testimony at trial
about the ineffectiveness of these mechanisms. Moreover,
Hurley had no obligation to try all these mechanisms,
because her immediate supervisor, who was responsible for
preventing and redressing harassment pursuant to the
ACPD's own policy, was on notice of the harassment. An
employer cannot "use its own policies to insulate itself from
liability by placing an increased burden on a complainant
to provide notice beyond that required by law." Williamson
v. City of Houston, 148 F.3d 462, 467 (5th Cir. 1998).17

Second, the ACPD apparently misreads the jury
instructions. The liability instructions first stated that the
ACPD would be liable for acts within the scope of a
supervisor's employment, which was to be judged by the
time, place, and foreseeability of the harassing acts. See
XXII App. at A5281-82. The instructions continued that the
existence of "a widely-disseminated anti-harassment policy
or a well-publicized and an effective formal or informal
complaint structure, training or monitoring mechanisms"
would be evidence that sexual discrimination was not
within the scope of employment. Id. at A5282.18 Then, the
_________________________________________________________________

17. See also Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998)
(holding that, if a direct supervisor who had the responsibility to stop
harassment knew of and failed to act against it, the plaintiff has no
further obligation to bring it to the employer's attention); Young v.
Bayer
Corp., 123 F.3d 672, 675 (7th Cir. 1997) (finding it sufficient for a
plaintiff to give notice to someone who should reasonably be expected to
stop the harassment or refer the complaint up the chain of command to
someone who can stop it).

18. The Ellerth/Faragher defense applies only to harassment occurring
outside the scope of employment. See Ellerth, 118 S. Ct. at 2267. For
harassment to fall within the scope of employment, the harasser must be
furthering the employer's purposes or acting in what he believes to be
his employer's interests. See id. at 2266. The Court did not discuss how
such motivations were to be determined, and we need not today address

34
instructions set forth the standard agency law on which
Faragher and Ellerth relied--the employer is not liable for
acts outside the scope of employment unless (1) the
employer intended the conduct; (2) the employer was
negligent or reckless in that it knew or should have known
about the supervisor's actions and failed to take prompt
and effective remedial measures; or (3) the supervisor was
purporting to act as a supervisor, he had authority to
control the employee's working environment, and his
actions were aided and abetted by the authority delegated
by the employer. See XXII App. at A5282-83 (tracking
Lehmann, 626 A.2d at 461-62).

Next, the instructions listed factors to consider when
determining whether the employer's negligence contributed
to a supervisor's sexual discrimination: the existence of a
formal anti-harassment policy; the presence of effective
formal or informal complaint structures, training, and/or
monitoring mechanisms; the extent to which the employee
used the existing complaint procedures; and whether the
employer took prompt and effective remedial action in
response to complaints. According to the instructions, these
factors should be evaluated together. See id. at A5283
(tracking Lehmann, 626 A.2d at 463). Finally, the
instructions stated that the ACPD would be responsible for
harassment by non-supervisory employees if it knew or
should have known that such harassment was occurring
and failed to take preventive or curative measures when it
had reason to believe that harassment may have occurred;
_________________________________________________________________

whether a patently ineffective harassment policy might communicate to
male employees that harassment was an acceptable, expected means to
interact with female officers. Rather, if the jury decided that the lack
of
an effective harassment policy justified holding the ACPD liable under a
scope of employment theory, the same result would have been mandated
under the Ellerth/Faragher standards for holding employers liable for
negligence or for imposing vicarious liability when supervisory
harassment creates a hostile work environment. The overlap between the
standards was made clear by the instructions on negligence, which we
describe infra in text. Thus, although this section of the instructions
would no longer be appropriate to describe the scope of employment in
a Title VII case, it did not mistakenly allow liability to be imposed in
any
circumstances in which an employer should properly be absolved.

35
the jury was instructed to consider whether the ACPD took
"all reasonable steps necessary to address sexual
harassment." Id. at A5284.

The ACPD has failed to identify how these instructions
conflict with Faragher and Ellerth, which relied on the same
agency principles as Lehmann. Indeed the able trial judge
quite presciently anticipated Faragher and Ellerth. The
ACPD argues that the instructions allowed the jury to find
it liable if the jury concluded that some factors outweighed
the existence of an effective sexual harassment policy. See
ACPD Letter, July 16, 1998, at 8. The ACPD presumably
means that the jury could have used the extent of the
harassment to discount the ACPD's anti-harassment policy,
although the ACPD is not clear on this issue. Of course,
under Faragher, the extent of the harassment would be
helpful evidence of the actual effectiveness of a formal
policy, which is a necessary element of the Faragher
defense. But that is beside the point, as the ACPD has
confused the part of the instructions that sets forth a ten-
factor test for determining whether a hostile environment
existed, see supra Section II.A.4, with the part of the
instructions that dealt with the ACPD's liability assuming
that the jury found a hostile environment existed, see XXII
App. at A5282-84. If anything, the ACPD got to double-dip
on its harassment policy, because the jury was told to
factor it into the initial hostile environment determination
and then to use it again when considering liability. See
Payton, 691 A.2d at 327 (approving this dual use).

A third reason to reject the ACPD's contention is that
Faragher and Ellerth establish that the defense of employer
due care is an affirmative one. See Ellerth, 118 S. Ct. at
2270. Thus, the employer bears the burden of proof. The
instructions given at trial put the burden on Hurley to
prove that the ACPD was liable for negligence despite its
harassment policy and other remedial measures. Any error,
therefore, worked in favor of the ACPD and could not justify
a new trial.

Finally, Faragher and Ellerth do not necessarily control
this case, which was also brought under the New Jersey
LAD. Even if the jury instructions are not quite right with
respect to Faragher, there is no colorable argument that

36
they misstated New Jersey law. For all these reasons, we
conclude that these recent additions to Title VII
jurisprudence do not require us to reverse the judgment of
the district court.

2. The Quid Pro Quo Instruction

Hurley's quid pro quo claim was based on Madamba's
alleged sexual invitations to her. She testified that when
she complained about harassment to Madamba, he replied
that women in the private sector avoided harassment
because they "sleep with their bosses." When she attempted
to change the subject and commented on Madamba's
apparent weight loss, he stated that he lost weight by
"having sex a few times a day," and that women came to
him "when they're ready." Hurley interpreted this entire
conversation as a solicitation for sex.

The dissent argues that Ellerth and Faragher require us
to reverse because those cases held that there could be no
quid pro quo claim as such if the plaintiff neither submitted
to sexual demands nor suffered retaliatory action when she
refused to submit. The jury instructions, however, required
only that the jury find either that a supervisor conditioned
tangible job benefits on submission to unwelcome sexual
conduct, or that a supervisor penalized Hurley for refusing
to participate in such conduct. It is possible, though not
certain, that such instructions could be read to cover
threats that were not acted upon. We agree with the dissent
that Ellerth and Faragher largely eliminated the distinction
between hostile work environment claims and quid pro quo
claims, focusing instead on the presence or absence of
tangible adverse employment actions. See Durham Life Ins.
Co. v. Evans, ___ F.3d ___, 1999 U.S. App. LEXIS 587 (3d
Cir. Jan. 22, 1999). However, we conclude that the
judgment should nonetheless be upheld.

The dissent persuasively identifies the reasons that the
quid pro quo claim was the least tenable of Hurley's claims,
at least under Faragher and Ellerth. 19 In fact, the conduct
_________________________________________________________________

19. We have no doubt that Madamba's suggestive remarks could be
interpreted as a threat, and we do not mean to suggest that remarks of
this sort cannot found a quid pro quo claim, though we agree with the

37
of which she complained was part of the hostile work
environment she experienced, and this would necessarily
have been apparent to the jury.20 But in light of the total
record here, we are satisfied that no jury would have found
the defendants liable solely on the basis of the quid pro quo
instruction. Multiple sources--including physical evidence
--corroborated the most egregious examples of sexual
harassment, including the tampon incident and the
obscene graffiti, see, e.g., infra n.5, while the only evidence
of Madamba's suggestion came from Hurley's testimony. To
us, it is inconceivable that a jury would have believed her
testimony on this one issue, concluded that the ACPD was
vicariously liable for one advance, and discounted the other
incidents, which were sufficiently pervasive to consitute a
hostile environment. Juries may be unpredictable, but we
are not willing to posit total illogic, which would be contrary
to our faith in the jury system as a whole. We are thus
persuaded that any error was harmless.

We addressed a similar issue in Murray v. United of
Omaha Life Insurance Co., 145 F.3d 143 (3d Cir. 1998):

We agree that the jury charge as given by the district
court did not conform to New Jersey law as we predict
it. Nonetheless, we will not reverse a judgment where
_________________________________________________________________

dissent that the evidence of retaliation for refusal to accede is
gossamer.
Nor need we predict how New Jersey will react to Faragher and Ellerth.
The LAD is a remedial statute, in some respects broader and more
flexible than Title VII. See Lehmann, 626 A.2d at 452; id. at 460 (holding
employers strictly liable for equitable damages and relief). This is so
even
though New Jersey often looks to the federal system for interpretive
authority. See id. at 452. We thus believe it quite possible that New
Jersey might retain a quid pro quo cause of action as such even after
Ellerth and Faragher. The District Court's instructions, as the dissent
notes, see Dissent at 66, are consistent with Lehmann. See Lehmann,
626 A.2d at 452; see also Pukowsky v. Caruso, 711 A.2d 398, 403 (N.J.
Super. Ct. App. Div. 1998).

20. Madamba's alleged conduct is the kind of conduct for which the
ACPD could attempt to interpose its affirmative defense, but, as we have
already held, that defense would fail because the ACPD's dereliction was
even worse than that in Faragher, in which the Court declined to offer
the defendants an opportunity to make out the defense on remand.

38
 "it is highly probable that the error did not contribute
to the judgment," McQueeney v. Wilmington Trust Co.,
779 F.2d 916, 924 (3d Cir. 1985), i.e., where the
challenged error was harmless.

Id. at 156 (footnote omitted). An issue similar to that in this
case arose in American Airlines, Inc. v. United States, 418
F.2d 180 (5th Cir. 1969), in which the District Court
instructed the jury that it could return a verdict for the
plaintiff if it found negligence in any one or more of thirty
particulars. Each was supported by substantial evidence
except one, and on that one count it was factually
impossible that liability could appropriately be found. The
court found that "it is . . . inconceivable that in the mass
of testimony so clearly establishing negligence in thirty
other particulars this issue could have influenced the
verdict against American." Id. at 195 (citing Fed. R. Civ. P.
61). Although there were fewer than thirty viable theories in
this case, the weight of evidence and argument on the other
theories of liability leads us to the same conclusion here.

We concede the general correctness of the dissent's
proposition that faulty instructions on which a general
verdict could have been based require reversal. The
foundational case of Maryland v. Baldwin, 112 U.S. 490
(1884), addressed itself equally to faulty instructions and to
erroneous admission of evidence, and announced that such
errors require reversal. See id. at 493 ("If . . . upon any one
issue error was committed, either in the admission of
evidence or in the charge of the court, the verdict cannot be
upheld . . . ."). It has long been acknowledged, however,
that Baldwin does not speak to the harmless error
situation. See Asbill v. Housing Auth. of the Choctaw Nation,
726 F.2d 1499, 1504 (10th Cir. 1984) ("We note[Baldwin]
does not paint with as broad a brush as appears from the
language quoted. As with all errors committed at trial, a
litmus test for reversal is whether the appellant was
thereby unjustly prejudiced."). Evidentiary errors are
subject to harmless error analysis, and the same is true for
errors in instruction. See id.

Given Federal Rule of Civil Procedure 61's command to
disregard "any error" that does not affect "the substantial
rights of the parties," and the authorities set forth in the

39
margin,21 we do not believe that we are creating a new rule.
The cases cited by the dissent for the proposition that we
must reverse are distinguishable because they deal with
instances in which the record rendered it impossible to
determine the basis for the jury's decision. We discuss
them, too, in the margin.22 To the extent that the dissent is
_________________________________________________________________

21. See also Pressley v. Haeger, 977 F.2d 295, 298 (7th Cir. 1992)
(applying harmless error analysis to faulty instructions that, given the
evidence, were unlikely to have influenced the jury); Kern v. Levolor
Lorentzen, Inc., 899 F.2d 772, 777 (9th Cir. 1990) (where the relevant
facts were the same for all theories, the evidence and argument focused
on a legally correct theory, and it was unlikely that the incorrect theory
influenced the jury, a verdict could be upheld despite one erroneous
instruction); Kassel v. Gannett Co., 875 F.2d 935, 950 (1st Cir. 1989)
(invoking harmless error rule for faulty instructions but rejecting it on
the merits because of the evidence and arguments at trial); Lusby v. T.G.
& Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir. 1986) (finding that an
improper instruction, identical to one rejected by the Supreme Court
because it did not contain all the necessary elements, did not mandate
reversal because there was "substantial evidence" supporting the correct
theory of liability, and holding harmless error analysis appropriate to
jury instructions "when the erroneous instruction could not have
changed the result of the case"); Square Liner 360, Inc. v. Chisum, 691
F.2d 362, 377 (8th Cir. 1982) (applying Baldwin with harmless error
analysis); Horne v. Georgia S. & Fla. Ry. Co., 421 F.2d 975, 980 (5th Cir.
1970) (finding a charge, if erroneous, harmless because the underlying
facts so firmly supported the verdict on a proper charge); Roginsky v.
Richardson-Merrell, Inc., 378 F.2d 832, 837-38 (2d Cir. 1967) (applying
similar reasoning when one theory was improperly submitted to the
jury); 11 Wright et al., Federal Practice & Procedure S 2886, at 467-70
("Errors in instructions routinely are ignored if a motion for a directed
verdict should have been granted, or if the erroneous instruction went to
an issue that is immaterial in light of the jury's verdict, or if it is
otherwise apparent that the error could not have changed the result."
(footnotes omitted)).

22. See Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494,
534 (3d Cir. 1998) (portion of instructions invited the jury to use
impermissible factors, and, given the focus of the trial evidence, "such
infection almost certainly occurred"); Wilburn v. Maritrans GP Inc., 139
F.3d 350, 361 (3d Cir. 1998) (jury could have based liability on incidents
of alleged negligence for which the standard of care was beyond common
knowledge, and there was no expert testimony to guide them as to those
incidents); Avins v. White, 627 F.2d 637, 646 (3d Cir. 1980) (reversing a

40
concerned about broad application of the harmless error
rule, we agree entirely, and emphasize that our decision is
founded on the extreme facts of this case. Because any
error in the quid pro quo instruction could not by any
stretch of the imagination change the verdict, we need not
reverse.

III. Punitive Damages

The ACPD argues that the district court erred by failing
to instruct the jury that punitive damages could only be
awarded against the ACPD "if there was `actual
participation by upper management or willful indifference.' "
ACPD's Br. at 12 (quoting Lehmann, 626 A.2d at 464).23
_________________________________________________________________

judgment based on the "distinct possibility" that the jury imposed
liability based on incidents of defamation that should not have been
submitted to the jury); cf. McKenna v. Pacific Rail Serv., 32 F.3d 820,
831-32 (3d Cir. 1994) (reversing judgment when an erroneous portion of
the jury instructions "more than likely" guided the jury's deliberations).
Carden v. Westinghouse Electric Corp., 850 F.2d 996 (3d Cir. 1988), on
which the dissent relies, concerned a situation in which the verdict could
have been based on erroneously admitted "direct" evidence of
discrimination; here, the instructions did not require the jury to look at
evidence it should not have considered. Indeed, even Simko v. C & C
Marine Maintenance Co., 594 F.2d 960 (3d Cir. 1979), while setting forth
the general rule that errors in instruction require reversal, also cited
with approval Morrissey v. National Maritime Union, 544 F.2d 19, 26-27
(2d Cir. 1976), describing its holding as follows: "[T]he general rule . .
.
must be followed unless it can be stated with confidence that the same
verdict would have been returned even if the invalid claim had not been
submitted to the jury." Simko, 594 F.2d at 967.

23. The ACPD raises two other arguments concerning the punitive
damage award, but they need not detain us long. First, the ACPD argues
that plaintiff 's punitive damage award must be vacated as a matter of
law because "both public policy and the most reasonable interpretation
of the statutes [i.e., the Tort Claims Act and the LAD] support the
conclusion that punitive damages should not be available against a
public entity under the [LAD]." ACPD's Br. at 20. However, we explicitly
rejected this argument in Gares v. Willingboro Township, 90 F.3d 720 (3d
Cir. 1996), and we are unaware of any developments that call this
decision into question. Second, the ACPD contends that the punitive
damage award must be vacated because the jury acted inconsistently

41
Because the ACPD did not object to the district court's
charge on this ground, we will review this claim for plain
error.

The ACPD asserts that our plain error analysis should be
guided by the New Jersey Appellate Division's decision in
Maiorino v. Schering-Plough Corp., 695 A.2d 353 (N.J.
Super. Ct. App. Div.), certif. denied, 704 A.2d 19 (N.J.
1997). In Maiorino, the court observed that"a jury charge
on punitive damages must include the instruction that
upper management has to have . . . participated in or
shown willful indifference to the situation." Id. at 368-69
(emphasis added) (citing Rendine v. Pantzer, 661 A.2d 1202
(N.J. 1995)). In fact, the court held that this concept is so
essential to a fair trial that "the failure to charge the jury
with the necessity of finding upper management's
involvement to justify a punitive award is such a
fundamental flaw that [an appellate court] must recognize
it as a matter of plain error." Id. at 368 (citation omitted).
While the Maiorino decision provides persuasive authority
regarding the substantive correctness of a jury charge in a
diversity case such as this, it is well established that the
question of whether error is plain is one of federal law. See
Hinds v. General Motors Corp., 988 F.2d 1039, 1046 (10th
Cir. 1993) (discussing harmless error); see also Beardshall
v. Minuteman Press Int'l, Inc., 664 F.2d 23, 27 (3d Cir.
1981) ("[T]he failure to object to jury instructions and the
consequences thereof are procedural and are to be
governed by federal law."). Accordingly, we must look to this
_________________________________________________________________

when it imposed punitive damage liability on the ACPD but not on
Madamba, the principal upper manager who was involved. This
argument is also without merit. Punitive damages are awarded to deter
and punish, and the jury could easily have concluded that the ACPD
should pay punitive damages because both its potential for harm and its
responsibility for the widespread harassment were far greater than
Madamba's alone. Contrary to the ACPD's portrait of the facts, the
testimony indicated that Madamba was far from a lone bad apple
poisoning the ACPD. Moreover, the district court properly instructed the
jury that an award of punitive damages was purely discretionary. We
need not inquire further about why the jury chose to exercise its
discretion in this manner.

42
court's plain error jurisprudence when considering the
ACPD's appeal with respect to the punitive damage award.

We have repeatedly stated that, "[i]n the absence of a
party's preservation of an assigned error for appeal, we
review only for plain error, and our power to reverse is
discretionary." Chemical Leaman Tank Lines, Inc. v. Aetna
Cas. & Sur. Co., 89 F.3d 976, 993 (3d Cir.) (quoting
Fashauer v. New Jersey Transit Rail Operations, Inc., 57
F.3d 1269, 1289 (3d Cir. 1995)), cert. denied sub nom.
Jackson v. Chemical Leaman Tank Lines, Inc., 117 S. Ct.
485 (1996). However, we should exercise our discretion
sparingly so that Rule 51 and the beneficial policy goals it
serves are not emasculated. See Chemical Leaman, 89 F.3d
at 993-94; McAdam v. Dean Witter Reynolds, Inc., 896 F.2d
750, 770 n.31 (3d Cir. 1990). "Thus, we should notice the
error only if [it] is fundamental and highly prejudicial or if
the instructions are such that the jury is without adequate
guidance on a fundamental question and our failure to
consider the error would result in a miscarriage of justice."
Fashauer, 57 F.3d at 1289 (quoting Bereda v. Pickering
Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989))
(alteration in original) (internal quotation marks omitted).

In the present matter, there can be no doubt that the
district court's charge was erroneous. The New Jersey
Supreme Court has instructed that two distinct conditions
must be satisfied before punitive damages may be awarded
under the LAD. First, "punitive damages can only be
assessed against an employer if there was `actual
participation by upper management or willful indifference.' "
Maiorino, 695 A.2d at 368 (emphasis added) (quoting
Lehmann, 626 A.2d at 464); see also Maczik v. Gilford Park
Yacht Club, 638 A.2d 1322, 1326 (N.J. Super. Ct. App. Div.
1994). Second, a plaintiff must also set forth "proof that the
offending conduct [is] `especially egregious.' " Rendine, 661
A.2d at 1215 (quoting Leimgruber v. Claridge Assocs., Ltd.,
375 A.2d 652 (N.J. 1977)). Conduct may be sufficiently
egregious if it is "intentional, malicious, and`evil-minded.' "
Gares v. Willingboro Twp., 90 F.3d 720, 728 (3d Cir. 1996)
(quoting Rendine, 661 A.2d at 1215); see also Rendine, 661
A.2d at 1215 ("Our cases indicate that the requirement [of
willfulness or wantonness] may be satisfied upon a showing

43
that there has been a deliberate act or omission with
knowledge of a high degree of probability of harm and
reckless indifference to consequences." (citation and
internal quotation marks omitted)).

By contrast, the district court's punitive damage charge
clearly failed to instruct the jury on the upper management
requirement:

If you find that plaintiff has established that either
the Atlantic City Police Department or Henry Madamba
is responsible for having engaged in acts of sexual
discrimination against the plaintiff, you must consider
whether to award punitive damages. You are not to
consider the issue of punitive damages against
Nicholas Rifice.

. . . .

It is not sufficient to award punitive damages solely
on the basis that a defendant has engaged in acts of
sexual discrimination.

You may award plaintiff punitive damages solely on
the basis that a particular defendant maliciously or
wantonly violated plaintiff's rights, and an act is done
maliciously if it is prompted by ill will or spite toward
the injured person, an evil-minded act. An act is done
wantonly if it is done with a reckless, callous or
deliberate disregard of the injured person's rights. The
plaintiff must prove by a preponderance of the evidence
that the defendant acted maliciously or wantonly.

. . . .

In making your decision you should consider the
purpose of punitive damages. You may consider
whether the punitive damages are appropriate in order
to punish the defendant adequately, whether punitive
damages are necessary to prevent the defendant from
committing these acts again, or whether punitive
damages are likely to prevent others from committing
similar acts.

If you find the plaintiff is entitled to an award of
punitive damages, the court will hold a further
proceeding to determine the amount of that award.

44
App. at 5287-89 (emphasis added).

We conclude that the district court committed plain error
when it failed to instruct the jury that punitive damages
could only be assessed if there was "actual participation by
upper management or willful indifference." The court's
instructions failed to provide proper guidance for the jury
on a fundamental question. Moreover, our failure to
consider the error would result in a miscarriage of justice.
There was also serious disagreement at oral argument and
in the parties' briefs about whether Madamba was actually
part of upper management during the relevant times. 24
Accordingly, we will vacate the punitive damage award
against the ACPD.

IV. The Individual Defendants

A. Madamba

1. Assorted Challenges

Madamba raises a number of arguments on appeal. First,
he contends that he was entitled to judgment as a matter
of law because the jury's finding of individual liability under
N.J.S.A. 10:5-12(a) was against the weight of the evidence.
Implicit in this argument is Madamba's assumption that
the jury returned a verdict of individual liability under
N.J.S.A. 10:5-12(a). We do not agree with this assumption.
The district court's charge in this case clearly stated that
the individual defendants were liable, if at all, for aiding
and abetting the employer's violation of the Act.

Hurley argues that supervisors may be individually liable
as employers under the LAD. The New Jersey courts have
not specifically addressed the issue. The dissent makes a
cogent argument for individual liability, and it is clear that
reasonable people can disagree on this point. But the New
_________________________________________________________________

24. On remand, the district court must determine whether Madamba
was part of upper management. The ACPD claims that Madamba was a
captain, along with numerous others with that rank. Although Madamba
clearly was a supervisor of the personnel under his command, the ACPD
contends that he did not establish policy and was not at the top tier of
the department so as to be part of upper management. If a factual
dispute should arise, however, the issue would be reserved for the jury.

45
Jersey decisions cited by the dissent, see Dissent at 74-77,
did not rule on individual supervisory liability, and hence
we do not find them controlling. Nor do we think the
statutory text offers guidance. While an "employer" may be
"one or more individuals" under N.J.S.A. 10:5-5(a), that
does not necessarily mean that supervisors, themselves
employed by individuals or corporations, are "employers."
Title VII defines "employer" to include "a person . . . who
has fifteen or more employees" or "any agent" of such a
person, 42 U.S.C. S 2000e(b), and it could be subjected to
the same analysis the dissent uses to find individual
liability possible under LAD.

We also note that imposing direct liability on supervisors,
who are likely to be substantially judgment-proof, will not
significantly add to the force of anti-discrimination law,
which already gives employers incentives to ban
discrimination and monitor supervisors' activities. We think
that there is insufficient reason to predict that New Jersey
would diverge from the federal scheme on this point. See,
e.g., Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d
1061, 1077-78 (3d Cir. 1996). In sum, while the point is
close, as well as unclear, we are simply not willing to
predict that New Jersey would include supervisors in the
statutory definition of "employer."25

Second, Madamba joins the ACPD's evidentiary
challenges and its attack on the hostile work environment
charge, which we have already rejected. Third, he objects
that the court permitted the jury to find liability against
Madamba on four separate theories of liability when they
should have only considered liability for hostile work
environment sexual harassment. We do not agree, because
the various theories of liability were properly submitted to
the jury. There was sufficient evidence on all theories to go
to the jury, and the instructions clearly indicated that the
mere presentation of a possible theory to the jury did not
mean that any defendant was liable on that theory, or on
any theory. We reiterate that the instructions indicated that
_________________________________________________________________

25. Trends may change, however, and a panel looking at this issue a
year from now might see New Jersey pursuing a different course on
supervisory liability through section 10:5-5(a).

46
the individual defendants were liable, if at all, for aiding
and abetting the employer's violation of the Act. 26

Fourth, Madamba argues that the court's compensatory
damages charge failed to instruct the jury "that it cannot
award damages for any conduct that plaintiff was not
subjected to, aware of, or with respect to Madamba, which
occurred prior to 1990." Madamba Br. at 49-50. But the
relevant section of the instructions adequately limited
Madamba's exposure by setting forth the time limits on
recovery and the purposes for which the jury could use
evidence of acts not directed at Hurley, even though it did
not specifically mention Madamba at that point. See supra
Section II.B.

2. Aiding and Abetting

Finally, Madamba contends that the court's aiding and
abetting instruction permitted the jury to impose individual
liability under an erroneous standard. The LAD provides
that it is unlawful for "any person, whether an employer or
an employee or not, to aid, abet, incite, compel or coerce
the doing of any of the acts forbidden under this act, or to
attempt to do so." N.J.S.A. 10:5-12(e). In our decision in
Failla v. City of Passaic, issued after the verdict in this
case, we held that individual supervisors may be liable for
aiding and abetting under the LAD. In reaching this
_________________________________________________________________

26. Madamba particularly assails the availability of a quid pro quo
instruction, which we discuss in greater detail supra Section II.E.2. The
evidence to support Hurley's quid pro quo theory was a conversation she
had with Madamba in which she complained about harassment and he
responded that women in the private sector protect themselves from
harassment by "sleeping with" their bosses and that women approached
Madamba for sex "when they're ready." After she made no response to
these suggestive comments, he allegedly took further discriminatory
action against her by transferring her to a less desirable position.
However, as we suggested above, this is less a quid pro quo case than
a hostile environment case, inter alia because it seems more plausible
that the transfer, if retaliatory, was based on Hurley's memo alleging
harassment and not on her rejection of Madamba's putative advances. At
all events, as discussed below in Section IV.A.2, we conclude that a
reasonable jury could impose aiding and abetting liability on Madamba
for his substantial contribution to the hostile work environment; his
putative advances could be evidence of aiding and abetting.

47
conclusion, we predicted that the New Jersey Supreme
Court would follow the Restatement (Second) of Torts
S 876(b) to define aiding and abetting liability under the
LAD. See Failla, 146 F.3d at 158. That section provides
"that a person is liable for harm resulting to a third person
from the conduct of another when he `knows that the
other's conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to
conduct himself . . . .' " Id. (quoting Restatement (Second)
of Torts S 876(b)). We also predicted that, under New Jersey
law, "inaction can form the basis of aiding and abetting
liability if it rises to the level of providing substantial
assistance or encouragement." Id. at 158 n.11 (citing Dici v.
Pennsylvania, 91 F.3d 542, 553 (3d Cir. 1996)).

While we have rejected a requirement that an individual
and an employer share the same discriminatory intent in
order to find aiding and abetting liability, see Failla, 146
F.3d at 157, we have not fully elucidated the principles that
might allow a harassing supervisor to be individually liable
for aiding and abetting the actionable conduct of his
employer, when the challenged conduct is failing to stop the
supervisor's own harassment. Cf. United States v. Sain, 141
F.3d 463, 474 (3d Cir. 1998) (finding that a person can aid
and abet a corporation that he or she fully owns and
controls). This is a somewhat awkward theory of liability.
We believe, however, that it can be explained in this
manner: A supervisor, under New Jersey law, has a duty to
act against harassment. See Taylor, 706 A.2d at 691. This
duty can be violated by deliberate indifference or
affirmatively harassing acts. When a supervisorflouts this
duty, he subjects himself and his employer to liability. Cf.
Judson v. Peoples Bank & Trust Co., 134 A.2d 761 (N.J.
1957) (holding that both agent and principal will be liable
when the agent acts within the scope of his employment
but for his own purposes).

The ACPD's wrongful conduct in this case was inaction --
its tolerance of sexual harassment. The jury had evidence
before it that Madamba assisted this tolerance by tolerating
and even encouraging the harassment. As part of the chain
of command that Hurley was expected to follow, he
controlled her access to the most effective potential

48
solutions to the harassment. Instead of taking steps to
assist her, he told her that she should stop complaining or
it would only get worse; he suggested that sleeping with
him might protect her; he laughed at the drawings and
graffiti about her; and he demeaned her as an officer on a
daily basis. When she finally went over his head and
requested a transfer because of the harassment, he gave
his superior a memo accusing her of lying. We are also
mindful of the moral authority of a police captain over his
officers. When Madamba laughed at Hurley's discomfort
and denigrated her, his officers could easily learn the
lesson that harassing women was part of being an ACPD
officer.

Madamba arguably failed to stop the harassment because
he wanted it to continue. But, as Failla held, there is no
requirement of "shared intent" between the primary
wrongdoer and the aider and abettor. If Madamba's malice
substantially assisted the ACPD's inaction, then he is an
aider and abettor despite any difference in state of mind,
assuming that the ACPD can be said to have a mental
state. His liability can be grounded in his failure to stop the
harassment, which included both active and passive
components.

Because we conclude that Madamba could be liable for
aiding and abetting, we must decide whether the jury
instructions adequately set forth the applicable law. Based
on Restatement S 876(b), courts have determined that the
tort of aiding and abetting involves three elements: "(1) the
party whom the defendant aids must perform a wrongful
act that causes an injury; (2) the defendant must be
generally aware of his role as part of an overall illegal or
tortious activity at the time that he provides the assistance;
(3) the defendant must knowingly and substantially assist
the principal violation." Halberstam v. Welch, 705 F.2d 472,
477 (D.C. Cir. 1983); see also In re Temporomandibular
Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484,
1495 (8th Cir. 1997); Metge v. Baehler, 762 F.2d 621, 624
(8th Cir. 1985).27
_________________________________________________________________

27. To determine whether a defendant provided "substantial assistance,"
the comments to section 876 of the Restatement provide a list of five

49
The district court provided the following charge for aiding
and abetting:

[I]ndividual defendants . . . may be held liable only for
their individual, affirmative wrongful acts. They may
not be held liable for the conduct of others, nor for
their inaction or delay in responding to such conduct.
An individual defendant may be held liable, however, if
he aids, abets, incites, compels or coerces another
person's unlawful acts of discrimination.

. . . .

Aid is defined as meaning to assist, support or
supplement the efforts of another. Abet is defined as
meaning to encourage, counsel, incite or instigate the
commission of unlawful conduct.

In order the [sic] aid or abet another to commit an
unlawful act, it is necessary that the defendant
willfully and knowingly associate himself in some way
with the unlawful act, and that he willfully and
knowingly seek by some act to make the unlawful act
succeed.

App. at 5284, 5314.

Although the district court's charge is compatible in some
respects with the substance of section 876(b), the court
misstates the law in two crucial respects: First, the charge
does not allow for liability based on inaction. To be sure,
Madamba can hardly claim he was prejudiced by this
particular omission, because the jury concluded that he
committed affirmative, harassing conduct. But the
instructions also allowed the jury to impose liability for
mere assistance, rather than substantial assistance. This
was incorrect. Moreover, we cannot conclude that it is
highly probable that the absence of a substantial assistance
_________________________________________________________________

factors: "the nature of the act encouraged, the amount of assistance
given by the defendant, his presence or absence at the time of the tort,
his relation to the other and his state of mind." Restatement (Second) of
Torts S 876(b) cmt. d. (1979). Additionally, the court in Halberstam
provided a sixth factor, the duration of the assistance provided. See
Halberstam, 705 F.2d at 484.

50
requirement did not affect the jury's verdict. See
McQueeney, 779 F.2d at 924. Accordingly, we must vacate
the judgment against Madamba and order a new trial. 28

B. Rifice

Hurley argues in her cross-appeal that the district court's
aiding and abetting charge misstated the law under the
LAD by requiring a finding of affirmative sexual harassment
before Rifice could be found individually liable. She also
argues that the district court erred by striking her punitive
damage claim against Rifice. We agree.

As noted above, the district court's aiding and abetting
charge provided that the "individual defendants such as
Nicholas Rifice and Henry Madamba . . . may only be held
liable for their individual, affirmative wrongful acts." XXII
App. at 5284. However, in Failla, we expressly rejected this
view and concluded that "inaction can form the basis of
aiding and abetting liability if it rises to the level of
providing substantial assistance or encouragement." Failla,
146 F.3d at 158 n.11. Accordingly, the district court's
charge misstated the law under the LAD. The district court
noted that the charge might well have determined the jury's
verdict. See Hurley, 933 F. Supp. at 417-18.

The evidence against Rifice mainly concerned his
awareness of and apparent indifference to the harassment.
Rifice testified that he did nothing to stop the harassment
because the harassers should already have known better
_________________________________________________________________

28. Madamba additionally argues that the jury instructions were flawed
because they covered aiding and abetting "another person's unlawful
acts" and then, when the jury inquired further, the court stated that the
defendant had to "willfully and knowingly associate himself with the
unlawful act." Madamba Letter at 8. He argues that this is erroneous
because the instruction should have required association with the
employer and not the act. This is a misreading of Failla, which rejected
a shared intent requirement. Moreover, Madamba was associated with
his employer as a matter of course. Finally, the New Jersey Appellate
Division case of Baliko v. Stecker, 645 A.2d 1218 (N.J. Super. Ct. App.
Div. 1994), undermines Madamba's position. Baliko held that aiding and
abetting liability could exist when one union member aided other union
members and the sum total of acts was sufficient to cause the union to
be liable.

51
and he did not believe that he could do anything about it.
This kind of knowing inaction by a high-level employee with
responsibility over Hurley and her harassers could, we
think, rise to the level of substantial assistance. We will
therefore vacate the judgment in favor of Rifice and the
district court's order striking plaintiff's punitive damage
claim against Rifice.

C. Mooney

Hurley next argues that the district court erred by
granting summary judgment in favor of defendant Mooney.29
Mooney argued, and the district court agreed, that he was
entitled to summary judgment on Hurley's LAD claim
because, as a non-supervisory co-employee, he was not an
"employer" for purposes of N.J. Stat. Ann.S 10:5-5(e).30 See
Hurley v. Atlantic City Police Dept., 1995 WL 854478, at *10
(D.N.J. Aug. 4, 1995). The court reached this conclusion, in
part, because "non-supervisory co-employees cannot be
held liable under Title VII, and New Jersey courts have
often looked to that statute to resolve questions under the
NJLAD." Id. (citing Lehmann, 626 A.2d at 452). Although
Mooney may have had considerable unofficial power
because of his well-known promotion prospects and high-
ranking relatives, he was not an "employer."
_________________________________________________________________

29. We review the district court's decision granting summary judgment
de novo, and we apply the same test the district court should have
applied in the first instance. See Olson v. General Elec. Astrospace, 101
F.3d 947, 951 (3d Cir. 1996); Helen L. v. DiDario, 46 F.3d 325, 329 (3d
Cir. 1995). We must determine, therefore, whether the record, when
viewed in the light most favorable to Hurley, shows that there is no
genuine issue of material fact and that Mooney was entitled to summary
judgment as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986).

30. The Act provides that an employer "includes all persons as defined in
subsection a. of this section unless otherwise specifically exempt under
another section of this act, and includes the State, any political or
civil
subdivision thereof, and all public officers, agencies, boards or bodies."
N.J. Stat. Ann. S 10:5-5(e). Subsection (a) provides that the term
"[p]erson includes one or more individuals, partnerships, associations,
organizations, labor organizations, corporations, legal representatives,
trustees, trustees in bankruptcy, receivers, and fiduciaries." N.J. Stat.
Ann. S 10:5-5(a).

52
Hurley argues that S 10:5-5(e) is not relevant because
Mooney was individually liable under the LAD as an aider
and abettor. We predict that, under New Jersey law, a
nonsupervisory employee cannot be held liable as an aider
and abettor for his own affirmative acts of harassment,
because such affirmative acts do not substantially assist
the employer in its wrong, which is its failure to prevent
and redress harassment by individual employees. 31 Rather,
a nonsupervisory employee's harassment takes advantage
of the employer's wrongful conduct; it is the employee who
seems to be "aided and abetted" by the employer.32 A
supervisor, by contrast, may be liable as an aider and
abettor for active harassment or knowing and willful
inaction, because in either case the supervisor violates his
or her duty as a supervisor to prevent and halt harassment.33
_________________________________________________________________

31. The dissent argues that the employer's wrong can also consist of the
wrongs of its supervisors who commit willful harassment. This is a
thorny question of agency law; usually, the employer is said to be
vicariously liable for certain acts of its agents, as in Ellerth and
Faragher,
and directly liable for its own negligence, if any, in allowing its agents
to
behave badly. Query whether vicarious liability means that a person who
aids and abets an agent also aids and abets the principal? We need not
resolve this nice question, however, because the dissent's argument
presupposes that Madamba can be held individually liable as a harasser
under N.J.S.A. S 10:5-5(a), a proposition we have already predicted that
New Jersey courts would reject. Moreover, if the claim were that Mooney
substantially assisted Madamba's harassment, no reasonable jury could
find that Mooney's conduct rose to the level of substantial assistance
based only on the two incidents recited by the dissent.

32. Mooney claims that a nonsupervisor cannot aid and abet because
only supervisors can create liability for an employer. As cases imposing
liability for coworker harassment demonstrate, that statement of the law
is erroneous. We also note that, under the LAD, "any person" may aid
and abet; no ability to bind the employer is necessary. New Jersey may
ultimately decide, contrary to our prediction, that harassment by a
nonsupervisory employee can constitute aiding and abetting, in which
case we would of course follow its interpretation of state law.

33. We note that the claims against the individual defendants are largely
symbolic. Hurley's monetary recovery will come from the ACPD, and in
practical terms the liability of the individual defendants is not that
significant.

53