Opinion

Hurley v. Atl Cty Pol Dept

Court: Court of Appeals for the Third Circuit
Filed: Mar 18, 1999
Cited by: 0 cases
Authority: More cited than 40.1%

evidence of frequent misconduct against plaintiff and others was "pertinent, perhaps essential" to the employer liability determination

How later courts described this case

evidence of frequent misconduct against plaintiff and others was "pertinent, perhaps essential" to the employer liability determination
evidence of time-barred harassment and discrimination against others in the plaintiff 's class was relevant
applying harmless error analysis to faulty instructions that, given the evidence, were unlikely to have influenced the jury
holding that both agent and principal will be liable when the agent acts within the scope of his employment but for his own purposes

Written by the judges who cited it.

The opinion

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Precedential or Non-Precedential: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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation

"Hurley v. Atl Cty Pol Dept" (1999). 1999 Decisions. Paper 66.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/66

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

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,

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

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,

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

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,

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

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,

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

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)

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

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

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.

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

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.

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.

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

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.

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

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.

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

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

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.

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

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.

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:

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).

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).

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).

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

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.

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:

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.

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.

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:

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).

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).

"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,

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

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.

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.

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,

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

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

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.

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

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

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.

"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

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

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

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.

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

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.

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.

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).

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.

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

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

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.

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.

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).

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

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.