1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-18-1999

Hurley v. Atl Cty Pol Dept

Precedential or Non-Precedential:

Docket 96-5633,96-5661

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Recommended Citation

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

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Volume 1 of 2 

Filed March 18, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

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

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, 

husband and wife, 

v. 

THE ATLANTIC CITY POLICE DEPARTMENT, 

a subdivision of the City of Atlantic City; 

HENRY MADAMBA; NICHOLAS V. RIFICE; 

JOHN MOONEY; JOHN DOES 1 THROUGH 50 

inclusive, fictitious name defendants, jointly, 

severally, and in the alternative 

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

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, 

wife and husband 

v. 

THE ATLANTIC CITY POLICE DEPARTMENT, 

a subdivision of the City of Atlantic City; 

HENRY MADAMBA; NICHOLAS V. RIFICE; 

JOHN MOONEY; JOHN DOES 1 THROUGH 50, 

inclusive, jointly, severally, and in the alternative 

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

Atlantic City Police Department, 

 Appellant No. 96-5633 

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, 

husband and wife, 

v. 
THE ATLANTIC CITY POLICE DEPARTMENT, 

a subdivision of the City of Atlantic City; 

HENRY MADAMBA; NICHOLAS V. RIFICE; 

JOHN MOONEY; JOHN DOES 1 THROUGH 50, 

inclusive, fictitious name defendants, jointly, 

severally, and in the alternative 

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

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, 

wife and husband 

v. 

THE ATLANTIC CITY POLICE DEPARTMENT, 

a subdivision of the City of Atlantic City; 

HENRY MADAMBA; NICHOLAS V. RIFICE; 

JOHN MOONEY; JOHN DOES 1 THROUGH 50, 

inclusive, jointly, severally, and in the alternative 

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

Henry Madamba, 

 Appellant No. 96-5634 

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, 

husband and wife, 

v. 

THE ATLANTIC CITY POLICE DEPARTMENT, 

a subdivision of the City of Atlantic City; 

HENRY MADAMBA; NICHOLAS V. RIFICE; 

JOHN MOONEY; JOHN DOES 1 THROUGH 50, 

inclusive, fictitious name defendants, jointly, 

severally, and in the alternative 

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

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, 

wife and husband 

v. 

 2 
THE ATLANTIC CITY POLICE DEPARTMENT, 

a subdivision of the City of Atlantic City; 

HENRY MADAMBA; NICHOLAS V. RIFICE; 

JOHN MOONEY; JOHN DOES 1 THROUGH 50, 

inclusive, jointly, severally, and in the alternative 

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

Donna M. Hurley, and Patrick K. Hurley, 

 Appellants No. 96-5661 

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, 

husband and wife, 

v. 

THE ATLANTIC CITY POLICE DEPARTMENT, 

a subdivision of the City of Atlantic City; 

HENRY MADAMBA; NICHOLAS V. RIFICE; 

JOHN MOONEY; JOHN DOES 1 THROUGH 50, 

inclusive, fictitious name defendants, jointly, 

severally, and in the alternative 

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

SERGEANT DONNA M. HURLEY; PATRICK K. HURLEY, 

wife and husband 

v. 

THE ATLANTIC CITY POLICE DEPARTMENT, 

a subdivision of the City of Atlantic City; 

HENRY MADAMBA; NICHOLAS V. RIFICE; 

JOHN MOONEY; JOHN DOES 1 THROUGH 50, 

inclusive, jointly, severally, and in the alternative 

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

Donna M. Hurley, and Patrick K. Hurley, 

 Appellants No. 96-5738 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Nos. 93-cv-00260, 94-cv-01122) 

 3 
Argued May 4, 1998 

Reargued October 5, 1998 

BEFORE: BECKER, Chief Judge, SCIRICA and COWEN, 

Circuit Judges 

(Filed March 18, 1999) 

 Clifford L. Van Syoc, Esq. (Argued) 

 Van Syoc Law Offices 

 200 Lake Drive East, Suite 110 

 Woodland Falls Park 

 Cherry Hill, New Jersey 08002 

 Counsel for Plaintiffs-Appellees/ 

 Cross-Appellants 

 Dennis M. Tuohy, Esq. (Argued) 

 Tuohy & Tuohy 

 20 South Tennessee Avenue 

 Atlantic City, New Jersey 08401 

 Counsel for Defendant-Appellant/ 

 Cross-Appellee, Atlantic City Police 

 Department 

 Mark Falk, Esq. (Argued) 

 Barry & McMoran 

 One Newark Center, 18th Floor 

 Newark, New Jersey 07102 

 Counsel for Defendant-Appellant/ 

 Cross-Appellee, Henry Madamba 

 Richard L. Goldstein, Esq. (Argued) 

 Marshall, Dennehey, Warner, 

 Coleman & Goggin 

 Three Greentree Center, Suite 304 

 Marlton, New Jersey 08053-3405 

 Counsel for Defendant/Cross- 

 Appellee, Nicholas V. Rifice 

 4 
 Thomas F. Bradley, Esq. (Argued) 

 Hankin, Sandson & Sandman 

 30 South New York Avenue 

 Atlantic City, New Jersey 08401 

 Counsel for Defendant/Cross- 

 Appellee, John J. Mooney 

OPINION OF THE COURT 

BECKER, Chief Judge. 

This is an appeal by defendants Henry Madamba and the 

Atlantic City Police Department (ACPD) from an amended 

judgment entered upon a jury's determination that 

Madamba discriminated against plaintiff Donna Hurley on 

the basis of her sex in violation of the New Jersey Law 

Against Discrimination (LAD), N.J. Stat. Ann. 10:5-1 et 

seq., and that the ACPD discriminated against her on the 

basis of her sex in violation of the LAD and Title VII of the 

Civil Rights Act of 1964 (Title VII), 42 U.S.C.S 2000e et seq. 

Donna Hurley cross-appeals from an amended judgment

entered upon the jury's determination that defendant 

Nicholas Rifice did not discriminate against her in violation 

of the LAD. She also cross-appeals from the district court's 

order granting defendant John Mooney's motion for 

summary judgment and the district court's order denying 

her motions for prejudgment interest and an additur and 

granting her motion for attorney's fees subject to a reduced 

hourly rate. In addition, plaintiff Patrick Hurley appeals 

from the district court's order granting defendants' motion 

for summary judgment on his loss of consortium claim. 

Because the harassing conduct tolerated by the ACPD

was longstanding and egregious, and because the trial 

court did not commit reversible error in its evidentiary 

decisions or its jury instructions, we will affirm the 

amended judgment insofar as it imposes liability and 

compensatory damages on the ACPD. However, because the 

punitive damages instructions did not require actual 

participation by upper management or willful indifference 

as required by New Jersey law, we will vacate the amended 

 5 
judgment to the extent it imposes punitive damages against 

the ACPD and order a new trial on that issue. 

Our recent decision in Failla v. City of Passaic, 146 F.3d 

149 (3d Cir. 1998), set forth our understanding of liability 

for aiding and abetting under the New Jersey LAD. In light 

of Failla, it is evident that the jury instructions on aiding 

and abetting erred in two critical respects. We will therefore 

reverse the amended judgment entered against Madamba 

because the instructions failed to require a finding that 

Madamba substantially assisted the harassment. We will 

also vacate the judgment entered in favor of Rifice because 

the instructions wrongly directed the jury to absolve Rifice 

unless he took affirmative harassing acts. However, we will 

affirm the district court's order granting Mooney's motion 

for summary judgment because, as we understand New 

Jersey law, he could not, as a nonsupervisory employee, be 

liable for aiding and abetting the ACPD's failure to prevent 

and redress harassment even if he affirmatively harassed 

Donna Hurley. We will also affirm the district court's order 

denying plaintiff's motions for prejudgment interest and an 

additur and granting plaintiff's motion for attorney's fees 

subject to a reduced hourly rate.1 

I. Facts and Procedural History2 

Plaintiff Donna Hurley has been an officer with the ACPD 

since February of 1978. She joined the force shortly after 

becoming the first female graduate of the Atlantic City 

Police Academy. Her husband, plaintiff Patrick Hurley, is 

also an officer with the ACPD. For purposes of clarity, we 

will refer to Donna Hurley as "Hurley," to Patrick Hurley as 

"Mr. Hurley," and to Mrs. and Mr. Hurley collectively as the 

"Hurleys" or "plaintiffs." The Hurleys met while training at 

the Police Academy and married in 1980. Hurley alleges 

that she was subjected to sexual harassment as early as 

her training at the Police Academy in the late 1970s. In 

1981 her then-supervisor, Sergeant Walter Reay, harassed 

_________________________________________________________________ 

1. The district court had jurisdiction over this case pursuant to 28 

U.S.C. SS 1331, 1343, and 1367. We have jurisdiction over this appeal 

pursuant to 28 U.S.C. S 1291. 

2. The facts recited were all adduced at trial. 

 6 
her by making sexually derogatory comments about her 

hygiene during roll call, disturbed her while she was 

changing in the drill room, spoke to her in condescending 

tones during radio transmissions, and held her to stricter 

standards than male officers. During that year, fellow 

officers allegedly referred to Hurley as "the cunt" and placed 

a tampon and a copy of Hustler magazine in her squad car. 

Despite these and other obstacles,3 Hurley was promoted 

in November of 1987 and became the first female sergeant 

at the ACPD. Although her title changed as a result of this 

promotion, Hurley claims that her assignments continued 

to be menial and provided no useful experience. At one 

point, for example, Hurley was assigned to the Juvenile 

Truancy Task Force, where her job was to keep statistics on 

juvenile truants and where, although a sergeant, she 

supervised no one. 

The ACPD divides its officers into three shifts: 8:00 a.m. 

to 4:00 p.m., or "Alpha Platoon"; 4:00 p.m. to 12:00 

midnight, or "Bravo Platoon"; and midnight to 8:00 a.m., or 

"Charlie Platoon." After working approximately two years as 

a sergeant on Alpha Platoon, Hurley was transferred in 

January 1990 to desk sergeant of Charlie Platoon, where 

she came under the direct command of defendant Captain 

Henry Madamba. The events at the core of this case 

occurred while Hurley worked in Charlie Platoon. During 

her first week on this assignment, Madamba allegedly told 

plaintiff that upper management sent a woman to his unit 

to "break his balls," and that he "did not expect [her] to be 

here on this shift very long." App. at 2749-50. Madamba 

also allegedly advised Hurley to request a hardship transfer 

_________________________________________________________________ 

3. In addition to the harassment, Hurley testified that, prior to January 

of 1987, she was given "lowly positions that offered no useful experience 

or potential for advancement." Hurley v. Atlantic City Police Dep't, 933 

F. 

Supp. 396, 405 (D.N.J. 1996). For example, she testified that she was 

assigned to the Records Bureau to perform menial copying tasks. See 

App. at 2420. She also testified that she was assigned to security desk 

duty, which consisted of signing civilians in and out of the department 

building, and fire watch, which consisted of watching one particular 

building for an outbreak of fire. Hurley did not, however, include a 

failure to train or promote claim in her complaint.

 7 
out of Charlie Platoon and gave a male officer with less 

seniority a more favorable schedule. 

Hurley testified that she was sexually harassed 

throughout her entire tour on Charlie Platoon by her 

superiors and her coworkers. This harassment included 

"keying out" her radio transmissions,4 demeaning 

comments by Madamba during roll call, and exclusion from 

sergeants' meetings. In addition, officers placed a sanitary 

napkin with sergeant's stripes over the roll call podium and 

affixed a dildo either to the wall or the podium in the roll 

call room. Finally, she was the subject of sexually explicit 

graffiti and drawings of herself at three locations on city 

property: the roll call room, the roll call bathroom, and the 

bathroom of the Masonic Temple, a building used by both 

employees and the public. Several of the most egregious 

examples of the offensive material, of appallingly low 

character, are set forth in the margin.5 

_________________________________________________________________ 

4. "Keying out" or "clicking out" consists of depressing the "On" and 

"Off " buttons of a radio transmitter to block the communications of the 

officer who is using the airway. 

5. Hurley was compelled to attend roll call in front of a life-size 

drawing 

of herself performing oral sex as her supervisor, Madamba, sat eight feet 

away. In addition, the following graffiti appeared on a wall in the roll 

call 

bathroom, which was commonly used and open to the public: 

 Oh sweet Donna Hurley 

 With cunt hair so curley 

 Your blond hair seems so soft and stays in place 

 When I toss off my cookies in your face 

 I'd like to stick my cock in your ass 

 But when I think of Lt. Andros my cock gets soft fast 

 So keep up your spirits and don't get depressed 

 Cause even though your a cunt I'd like to press yourflesh 

 Though in uniform your rude and brass 

 Your just another sex machine with my cock in your ass 

Next to this was a graphic drawing of a naked women labeled "Donna 

Hurley" and bearing sergeant's stripes. Near the drawing, and apparently 

written by several different hands, were the scrawled phrases "just 

another fuck doll," "she should look this good." and "Lt. Andros was 

here." Lieutenant Andros was a co-worker with whom Hurley was 

rumored to have had an affair. 

 8 
Hurley also testified that Madamba personally harassed 

her while she was on Charlie Platoon. In addition to the 

insults he directed at her during roll call and his decision 

to exclude her from sergeants' meetings, Captain Madamba 

allegedly refused to take action against officers who "keyed 

out" plaintiff 's radio transmissions, and told her that she 

was "too emotional" about the sanitary napkin incident. At 

one point, he reacted to the latest sexually explicit graffiti 

by rushing to see it and laughingly informing Hurley, in 

front of her colleagues, that "it's really bad," but he took no 

action to remove or prevent the appearance of the graffiti. 

In September of 1990, he sent a memorandum to defendant 

Rifice, an Inspector at the time, stating that Hurley had 

abused her sick leave. As a result, then-Chief of Police 

Robert McDuffie sent Hurley a memorandum requiring her 

to produce a doctor's note every time she took sick leave. 

Hurley testified that when she complained to Madamba 

that the harassment at Charlie Platoon was becoming too 

much for her, he replied that women in the private sector 

are protected against such harassment because they"sleep 

with their bosses." App. at 2776-77. When she attempted to 

change the topic of conversation and commented on 

Madamba's apparent weight loss, he stated that he lost 

weight by "having sex a few times a day," and that women 

came to him "when they're ready." App. at 2498-2508. 

Hurley interpreted this entire conversation as a solicitation 

for sex. 

Hurley also testified that another sergeant on Charlie 

Platoon, defendant John Mooney, sexually discriminated 

against her in two ways. First, Mooney made several

sexually derogatory comments to her, some of which 

Madamba witnessed yet did nothing to stop. For example, 

Mooney remarked that he had heard that Hurley "liked it 

hard and stiff," and suggested that, when Hurley met with 

Police Captain McKenna, she was actually performing oral 

sex on him. See X App. at A2516, A2514. On another 

occasion, when Hurley was unable to locate her coffee mug, 

Mooney asked her if she wanted to drink out of his jock 

cup. See id. at A2514. Second, Mooney used his influence, 

which far exceeded his position as sergeant, to transfer 

Hurley to an undesirable assignment because of her sex.6 

_________________________________________________________________ 

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

alleges that 

 9 
In particular, Hurley claims that Mooney was responsible 

for her transfer from her position as Court Liaison Officer 

to the Juvenile Truancy Task Force. 

After Mr. Hurley's efforts to intervene on his wife's behalf 

failed, Hurley submitted a memorandum to Madamba on

November 1, 1990, detailing the harassment she 

experienced during her tour on Charlie Platoon and 

requesting a transfer. Madamba forwarded Hurley's memo 

to the Chief of Police along with a memo of his own

requesting that Internal Affairs conduct an investigation of 

Hurley for allegedly lying in the memo as part of a

conspiracy to get money from the ACPD. No investigation 

along these lines was ever conducted. 

Shortly thereafter, Hurley was transferred to the Alpha 

Platoon shift of the Property and Evidence Unit. Although 

she had requested a transfer out of Charlie Platoon, Hurley 

alleges that this particular transfer constituted retaliation 

for her sexual harassment memorandum because the 

Property and Evidence Unit was widely regarded as an 

undesirable position, and the Alpha Platoon was 

incompatible with the personal schedule to which she had 

become adjusted while working on Charlie Platoon. Hurley 

also alleges that when she was transferred to the Property 

and Evidence Unit, she was denied a three percent pay 

increase that ACPD officers receive when transferred to 

plain clothes duty. She eventually received this increase on 

April 20, 1993, retroactive to November 8, 1990. Hurley 

contends that the harassment continued even after she left 

Charlie Platoon. 

_________________________________________________________________ 

 Mooney had obtained power far beyond that which would otherwise 

 be expected to be held by a mere sergeant. As a result of his years 

 of acting as the former chief 's aid and confidant, the political 

 prominence of his councilman father, the high position of his 

 brother-in-law, Inspector Polk, who is married to Mooney's sister, 

 Captain Michelle Polk, and the widespread perception in the 

 department that Mooney was destined to become the Chief, Mooney 

 was in a position to abuse his real authority without fear of 

 consequences. 

Appellee's Br. at 37. 

 10 
For example, the graffiti apparently remained on the 

walls well after her transfer. Rifice, who had been promoted 

to Police Chief, testified at trial that he heard complaints 

about the graffiti as late as March of 1992, and Mr. Hurley 

took photographs of the graffiti in the summer of 1992. In 

addition, an EEOC investigation concluded that there was 

sexual graffiti in Hurley's work area as late as June of 

1993. Moreover, on June 13, 1992, while Hurley was 

attending a police seminar, Mooney, then Captain of

Charlie Platoon, allegedly approached her and called her 

"the ass up from the Property Room" in front of two other 

sergeants. 

Hurley further avers that the Chief of Police, defendant 

Rifice, was aware of her plight and failed to take steps to 

protect her and discipline the perpetrators. She also 

testified that Rifice personally committed several affirmative 

acts of sexual discrimination against her. These acts 

included: (1) transferring her to the Property and Evidence 

Unit; (2) denying her access to Chief McDuffie; (3) denying 

her a three percent pay raise when she transferred to 

plainclothes duty; (4) denying her request for funeral leave; 

and (5) condoning an improper Internal Affairs investigation 

into her conduct while she was assigned to the Property 

Room. 

Hurley worked continuously until July 26, 1994, after 

which she went on an extended paid sick leave. She asserts 

that, as a result of the harassment, she has suffered severe 

emotional distress that has interfered with her work, her 

personal life, and her family life. Mr. Hurley alleges that the 

harassment has detrimentally affected his relationship with 

his wife. 

On July 10, 1992, Hurley filed complaints with both the 

United States Equal Employment Opportunity Commission 

(EEOC) and the New Jersey Department of Law and Public 

Safety, Division of Civil Rights (DCR). Both complaints 

named the ACPD as the sole respondent and alleged that 

Hurley had been harassed while on Charlie Platoon. Hurley 

submitted an affidavit in connection with her EEOC 

complaint alleging that Madamba and Mooney harassed her 

during her tour on Charlie Platoon. She claimed that 

obscene drawings of her remained visible as late as March 

 11 
of 1992, and that her transfer to the Property and Evidence 

Unit and denial of the three percent pay raise were in 

retaliation for her complaints of sexual harassment. 

On January 30, 1993, before the EEOC had issued 

plaintiff a right to sue letter pursuant to 42 U.S.C. S 2000e- 

(f)(1), the Hurleys filed the district court complaint which 

stated all of Hurley's instant claims. Subsequently, on 

October 12, 1993, the EEOC issued a determination on 

Hurley's charge. The EEOC investigator found probable 

cause to believe that Hurley had been sexually harassed 

while she was on Charlie Platoon, but no probable cause on 

retaliation charge regarding the transfer to the Property and 

Evidence Unit and the denial of the three percent pay 

increase. On March 7, 1994, the Hurleys filed a second 

complaint. This complaint relied on the facts stated in the 

previous complaint and alleged discrimination pursuant to 

42 U.S.C. S 2000e-2 and retaliation pursuant to 42 U.S.C. 

S 2000e-3(a). The district court subsequently consolidated 

these two complaints.7 

Following extensive discovery, each of the defendants 

moved for summary judgment. The district court granted 

Mooney's motion for summary judgment, and dismissed all 

claims against Madamba and Rifice with the exception of 

Hurley's aiding and abetting claims under the LAD. 

Additionally, the court dismissed all claims against the 

ACPD except for Hurley's hostile work environment claim 

under Title VII, Section 1983, and the LAD. 

The jury trial lasted more than two months. At the 

conclusion of the liability portion of the trial, the jury 

rendered a verdict against Madamba and the ACPD but

found Rifice not liable. The jury awarded $575,000 in 

compensatory damages and awarded punitive damages 

against the ACPD but not against Madamba. A punitive 

damage hearing was conducted before the jury, at the end 

of which the jury awarded Hurley $700,000 in punitive 

damages. 

The ACPD and Madamba moved for judgment as a matter

_________________________________________________________________ 

7. We note that the Hurleys' retaliation claims, arising from the ACPD's 

acts after this lawsuit was filed, are not part of this appeal. 

 12 
of law or, in the alternative, a new trial or a remittitur. 

Hurley moved for a new trial as to Rifice, and an additur 

with respect to the entire damages award. In addition, 

Rifice and Mooney, as well as Hurley, moved for attorneys' 

fees and costs. 

The district court denied defendants' motion for a new 

trial and for a remittitur as to punitive damages and also 

denied plaintiff's motion for an additur. However, the court 

granted defendants' motions for a remittitur with respect to 

the compensatory damages award, which the court remitted 

to $175,000. The court also denied the defendants' fee 

petitions, but granted plaintiff's petition, subject to a 

reduced hourly rate and the exclusion of hours spent in 

pursuit of unsuccessful claims. Hurley accepted the

remittitur, and the court awarded counsel fees and costs in 

favor of Hurley in the amount of $516,046 and $70,135, 

respectively. The court then entered an amended judgment. 

This appeal and cross-appeals followed. 

II. The ACPD's Liability 

The ACPD argues that it is entitled to a new trial for five 

reasons. First, it contends that the district court abused its 

discretion under Rule 403 of the Federal Rules of Evidence 

by admitting "highly inflammatory and largely irrelevant 

evidence regarding alleged misconduct at the ACPD to 

which the plaintiff was not exposed." ACPD's Br. at 2. 

Second, it contends that the district court's ruling that 

plaintiff's psychiatric expert could testify about a second 

diagnosis that was not contained in his reports "result[ed] 

in prejudicial surprise `inconsistent with substantial 

justice.' " Id. at 40 (quoting Conway v. Chemical Leaman 

Tank Lines, Inc., 687 F.2d 108, 111-12 (5th Cir. 1982)). 

Third, the ACPD asserts that the punitive damage award of 

$700,000 against it is so excessive that it creates an 

inference that the jury's liability verdict "resulted from its 

passion and prejudice toward the City of Atlantic City." Id. 

at 46 (citing Dunn v. HOVIC, 1 F.3d 1371, 1382 (3d Cir.) (en 

banc), modified on other grounds, 13 F.3d 58 (3d Cir. 

1993)). Fourth, the ACPD claims that the district court's 

jury charge under the LAD was misleading, confusing, and 

contrary to the law. Finally, on reargument, which we held 

 13 
in the wake of the recently decided Supreme Court cases of 

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. 

Ct. 2257 (1998), and Faragher v. City of Boca Raton, 524 

U.S. 775, 118 S. Ct. 2275 (1998), the ACPD submits that 

these cases entitle it to a new trial on liability. We will 

address these arguments in turn. 

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

 Charlie Platoon 

During trial, and over defendants' objections, the district 

court permitted a number of witnesses to testify about 

alleged incidents of harassment and retaliation that were 

either remote in time from the "accrual date"8 or involved 

matters of which Hurley was unaware until after shefiled 

suit. This testimony can be divided into three categories: (1) 

testimony by four women who were associated with the 

ACPD about incidents of sexual harassment and retaliation 

of which Hurley had no knowledge until after commencing 

suit; (2) testimony by eight male police officers about 

"locker-room" conversations between men outside the

presence of women; and (3) testimony by Patrick and

Donna Hurley about several incidents of sexual harassment 

against Mrs. Hurley between 1978 and 1981. 

The ACPD raises several arguments to support its 

contention that the district court abused its discretion by 

admitting this testimony. First, the ACPD points out that 

Hurley was unaware of most of these comments until after 

she filed suit. Thus, the comments could not possibly 

_________________________________________________________________ 

8. In its August 4, 1995 opinion and order, the district court concluded 

that the claims that formed the basis of plaintiff 's sexual 

discrimination 

allegations began in late 1989 or early 1990, upon plaintiff 's transfer 

to 

Charlie Platoon. App. at 5752. However, at the beginning of trial, the 

court expanded the time frame from which plaintiff could assert claims 

of sexual discrimination to January 20, 1987, based upon the court's 

conclusion that such claims would have been within the six-year statute 

of limitations that the court found applicable to claims under the LAD. 

In Montells v. Haynes, 627 A.2d 654, 659 (N.J. 1993), the New Jersey 

Supreme Court adopted a two-year statute of limitations for claims 

under the LAD. However, the Montells court also held that its decision 

did not apply to cases pending at that time or to cases in which the 

operative facts arose before the date of the court's decision, see id. at 

662, circumstances present here. 

 14 
contribute to a hostile work environment for her. Second, it 

argues that it was impossible to rebut most of the alleged 

incidents at trial because they occurred at unspecified 

times and locations. Third, the ACPD asserts that incidents 

from 1978 to 1981 were too remote in time to be probative. 

Finally, the ACPD maintains that the district court's 

limiting instructions regarding this evidence were 

insufficient to offset the unfair prejudice resulting from 

these rulings. 

1. The Challenged Evidence 

The district court permitted four women who had been 

associated with the ACPD to testify regarding the 

harassment of women within the department. Hurley did 

not witness any of these incidents, nor did she become 

aware of the alleged harassment until after she commenced 

suit. 

Martha Donovan, a municipal prosecutor for the City of 

Atlantic City, testified about some mistreatment of Hurley 

that she had observed and also testified about an incident 

involving Sergeant Edward Yard of the ACPD. According to 

Ms. Donovan's testimony, in the summer of 1989 Sergeant 

Yard called Ms. Donovan a "cunt" and stated that he "ought 

to slap [her] face" for giving him an order; the incident 

occurred in front of fifty other people, including other police 

officers, in the hallway of the courthouse. See IV App. at 

A831. Donovan immediately complained to her supervisor 

and the officer ultimately apologized. At some point 

thereafter, Sergeant Yard's responsibilities were changed, 

and he had minimal contacts with Ms. Donovan 

thenceforth. Ms. Donovan never reported the incident to the 

ACPD supervisory staff. 

Julia Cardy and Lisa O'Keefe, two civilian employees of 

the ACPD in the payroll department, testified that they were 

generally dissatisfied with their male ACPD supervisors. 

Ms. Cardy testified that in 1992, as a result of reporting her 

supervisor, Sergeant Griggs, to his immediate supervisor, 

Captain MacDonald, for his misbehavior, she was retaliated 

against and subjected to chauvinistic remarks. Ms. Cardy 

further testified that women were treated "pretty poorly" if 

they "spoke out" against the mistreatment. V App. at 

 15 
A1166, A1171. Ms. O'Keefe stated that Sergeant Griggs and 

Captain MacDonald treated her with disrespect over a long 

period of time extending to at least 1992, when there was 

apparently some ill-feeling towards female employees as a 

result of Hurley's lawsuit. See IV App. at A858-60. She also 

testified that complaints to Rifice received no response, see 

id. at A862, although she ultimately filed a union grievance 

and the offending officers were removed from authority over 

the payroll department. 

Officer Deborah Rando of the ACPD testified about the 

derogatory and sexually demeaning statements made to her 

in 1992 by her supervisor, defendant Mooney. At one point, 

Mooney referred to her conduct in profane terms and, when 

she objected, informed her that no one would believe her if 

she complained. See id. at A943. Despite this, she did 

complain to Mooney's supervisor, who warned her to think 

about her career and told her not to repeat her allegations 

to anyone. See id. at A948-50. 

The district court permitted eight male police officers 

from the ACPD to testify at trial about derogatory 

comments made about women generally. These officers

testified that, at least from 1990 to the time of trial, women 

were commonly referred to as "cunts," "douche bags," 

"broads," "bitches," and, as a group, "the crack troop." App. 

at A413, A768. In addition, one officer testified that most 

inspectors and captains commonly referred to Hurley as 

"the whacky [sic] cunt." Id. at 443. These same officers 

testified, however, that these comments were always made 

outside the presence of women. Hurley was unaware of 

these comments until after she commenced suit. 

Finally, the district court permitted both Patrick and 

Donna Hurley to testify, over objection, about events 

occurring well before the January 20, 1987 accrual date. 

For example, Mr. Hurley testified about alleged acts of 

discrimination against his wife dating back to her tenure at 

the Police Academy in 1978. He also testified about

comments allegedly made by Hurley's supervisor, Sergeant 

Walter Reay, between 1978 and 1980. Reay supposedly

asked Hurley about her personal hygiene and made weekly 

comments during roll call. 

 16 
Hurley also testified about various incidents that 

allegedly occurred in 1981, when she was a patrol officer 

and Louis Rivera was her partner. Hurley testified that she 

"heard" that she was referred to as a "cunt." Id. at 2388-90. 

The court also permitted her to testify that, during 1981, a 

Hustler magazine was left on her patrol car seat and a 

tampon was hung from her rear view mirror. 

2. Admissibility of the Evidence 

In the district court's view, all of the evidence was 

admitted for the same purpose: to "permit[ ] the jury to 

more intelligently evaluate the evidence that did create 

liability." Hurley, 933 F. Supp. at 411. The court reasoned 

that permitting 

 evidence of other women's experiences at the ACPD, of 

 the attitudes of male officers towards women generally, 

 and of Hurley's experiences prior to 1987 served 

 several important purposes in this trial. It allowed the 

 jury to gain insight into the motives, attitudes, and 

 intentions of the defendants. It gave them the 

 opportunity to evaluate the adequacy of management's 

 response to Hurley's complaints during the statutory 

 period. It provided the jury with a sense of whether the 

 events that took place during the statutory period were 

 anomalous or accidental, or instead were part of a 

 "pervasive and severe" pattern. 

 Plaintiff's treatment during the statutory period was 

 unquestionably influenced by and related to her 

 treatment throughout the course of her career at the 

 ACPD. Plaintiff's experience was reflective of the 

 general attitudes of the men around her; those 

 attitudes also influenced, and were revealed in, the 

 treatment of other women in the ACPD. 

Id. 

Although the district court believed that evidence of past 

harassment was "crucial to the jury's evaluation of the 

work environment at the ACPD," id. at 410, the court 

instructed the jury not to consider the evidence directly for 

purposes of liability. See id. at 411. Specifically, the court 

stated: 

 17 
 You are to consider whether each defendant has 

 engaged in sexual discrimination for the period from 

 January 20, 1987, through January 20, 1993. You 

 may consider evidence from before and after these 

 dates to help you evaluate the defendants' conduct 

 from January 20, 1987, through January 20, 1993, 

 but liability attaches, if at all, only to defendants' 

 conduct during this period. 

Id. (alteration removed). The court believed that, "[b]y 

admitting the evidence but forbidding the jury to consider 

it as directly relating to liability, [it was] able to balance the 

interests of the plaintiff and the defendants." Id. In 

addition, the court instructed the jury that, in determining 

whether or not a hostile work environment existed, it could 

only consider conduct that actually altered Hurley's own 

work environment during the relevant period. See App. at 

A5278. 

The evidence issues fall largely within the ambit of 

Federal Rule of Evidence 401, which defines relevant 

evidence as "evidence having any tendency to make the 

existence of any fact that is of consequence to the

determination of the action more or less probable than it 

would be without the evidence."9 Rule 401 does not raise a 

high standard. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 

717, 782-83 (3d Cir. 1994). Also implicated in our 

discussion is Rule 403, which provides, in pertinent part, 

_________________________________________________________________ 

9. The parties have not argued that we need apply New Jersey procedure 

to the New Jersey claims, and we will apply the federal rules to both. See 

Purgess v. Sharrock, 33 F.3d 134, 139-40 (2d Cir. 1994); cf. Wm. T. 

Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 104 (3d Cir. 

1982) (holding that the federal rule favoring admissibility of relevant 

evidence applies to state law claims in federal cases to which state law 

privileges might otherwise apply); Salas by Salas v. Wang, 846 F.2d 897, 

905-06 (3d Cir. 1988) (discussing the standard for applying state 

evidentiary rules in pure diversity cases). Nor is there any indication 

that 

New Jersey admissibility rules differ in any relevant respect, as we think 

New Jersey's law recognizes the same principles we discuss in text. See 

Rendine v. Pantzer, 648 A.2d 223, 237-38 (N.J. Super. Ct. App. Div. 

1994) (discussing the admissibility of evidence of discrimination against 

other people to prove motive or intent under N.J.R.E. 404(b)), aff 'd in 

relevant part, 661 A.2d 1202, 1213 (N.J. 1995). 

 18 
that "[relevant] evidence may be excluded if its probative 

value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury 

. . . ." We review evidentiary rulings for abuse of discretion, 

see Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 132 

(3d Cir. 1997), with substantial deference under Rule 403.10 

We conclude that the district court did not abuse its 

discretion under Rules 401 or 403 by admitting most of the 

challenged evidence, and that the error with respect to a 

portion thereof was harmless. 

Evidence that women other than the plaintiff were 

subjected to a hostile work environment clearly meets Rule 

401's requirements in a number of situations. For example, 

a plaintiff may show that, while she was not personally 

subjected to harassing conduct, her working conditions 

were nevertheless altered as a result of witnessing a 

defendant's hostility towards other women at the 

workplace. See Lehmann, 626 A.2d at 457 ("A woman's

perception that her work environment is hostile to women 

will obviously be reinforced if she witnesses the harassment 

of other female workers."). 

A plaintiff's knowledge of harassment or pervasively 

sexist attitudes is not, however, a requirement for admitting 

testimony on those subjects in a harassment suit. Evidence 

of harassment of other women and widespread sexism is 

also probative of "whether one of the principal nondiscriminatory reasons asserted by [an employer] for its 

actions was in fact a pretext for . . . discrimination." Glass 

v. Philadelphia Elec. Corp., 34 F.3d 188, 194 (3d Cir. 1994); 

see also Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 

1995). In Glass, we found reversible error where the 

plaintiff attempted to introduce evidence of past racial 

harassment to explain negative evaluations and the trial 

court excluded it because it was time-barred. Glass relied 

_________________________________________________________________ 

10. We have held that a trial judge is given very substantial discretion 

when striking a Rule 403 balance, see United States v. Eufrasio, 935 

F.2d 553, 572 (3d Cir. 1991), and that "a trial judge's decision to admit 

or exclude evidence under Fed. R. Evid. 403 may not be reversed unless 

it is arbitrary and irrational." Bhaya v. Westinghouse Elec. Corp., 922 

F.2d 184, 187 (3d Cir. 1990) (quotation marks omitted). 

 19 
on Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th 

Cir. 1988), adopting its holding that circumstantial proof of 

discrimination, including evidence of past harassment and 

evidence of discrimination against others in the protected 

class, is admissible. Moreover, in Rule 403 terms, this 

evidence is highly probative, hence it is unlikely that any 

putative prejudice therefrom will be unfair or will outweigh 

its value.11 

The principles established by our precedent apply to this 

case. Evidence of other acts of harassment is extremely 

probative as to whether the harassment was sexually

discriminatory and whether the ACPD knew or should have 

known that sexual harassment was occurring despite the 

formal existence of an anti-harassment policy. See West v. 

Philadelphia Elec. Co., 45 F.3d 744, 752 (3d Cir. 1995). 

Neither of these questions depends on the plaintiff 's 

knowledge of incidents; instead, they go to the motive 

behind the harassment, which may help the jury interpret 

otherwise ambiguous acts, and to the employer's liability. 

This kind of evidence is particularly important given the 

ACPD's main defenses at trial, which were that the 

incidents of abuse Hurley suffered were trivial horseplay to 

which both men and women were subjected and that its 

written sexual harassment policy was sufficient to insulate 

it from liability. Contrary to the ACPD's position, it is 

implausible in the extreme that Hurley was somehow 

immune from the pervasive sexism at the ACPD, as it was 

described by both female and male officers. See Hurley, 933 

F. Supp. at 411; see also Josey v. John R. Hollingsworth 

Corp., 996 F.2d 632 (3d Cir. 1993) (holding that employees' 

_________________________________________________________________ 

11. We note that, but for these precepts, clever discriminators might 

isolate each instance of discrimination and make it seem trivial or 

neutral. See Glass, 45 F.3d at 195; see also Aman v. Cort Furniture 

Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (evidence of time-barred 

harassment and discrimination against others in the plaintiff 's class was 

relevant); Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 

(11th Cir. 1989) (acts directed at others can be evidence of 

discrimination against the plaintiff). We also note apposite New Jersey 

precedent that a plaintiff may present evidence about the harassment of 

other women to establish employer liability. See Lehmann v. Toys `R' Us, 

Inc., 626 A.2d 445, 462 (N.J. 1993). 

 20 
remarks and racially derogatory notes sent by unidentified 

people were circumstantial evidence that management

permitted an atmosphere of prejudice to infect the 

workplace). 

The challenged evidence creates a basis for an inference 

that Hurley was targeted for abuse because she was a 

woman. It also gives reason to infer that the ACPD knew or 

should have known not only what was happening to its 

female officers but also, and most importantly, that the 

written sexual harassment policy was ineffective, and 

patently so. Indeed, it is hard to imagine evidence more 

relevant to the issue of whether a sexual harassment policy 

was generally effective than evidence that male officers did 

not respect it and that female officers were not protected by 

it. 

Officer Rando and Ms. Cardy, for example, both testified 

about the dismissive and even retaliatory treatment they 

experienced when they reported male officers' misbehavior, 

and this was relevant, probative evidence that the ACPD 

was consistently insensitive to female employees' 

experiences of harassment. See Hunter v. Allis-Chalmers 

Corp., 797 F.2d 1417 (7th Cir. 1986) (evidence of frequent 

misconduct against plaintiff and others was "pertinent, 

perhaps essential" to the employer liability determination); 

Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985) (same), 

aff'd sub nom. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 

57 (1986). This evidence remains highly relevant under 

Ellerth and Faragher. See Faragher, 118 S. Ct. at 2293 

(discussing evidence of city's general failure to disseminate 

and enforce its sexual harassment policy in rejecting the 

availability of the affirmative defense in a particular case of 

harassment). 

Aside from its relevance to the issue of whether the ACPD 

is liable for the hostile environment Hurley encountered, 

the evidence is also relevant to her intentional sex 

discrimination, quid pro quo, and retaliation claims. The 

general atmosphere of sexism reflected by the challenged 

evidence is quite probative of whether decisionmakers at 

the ACPD felt free to take sex into account when making 

employment decisions, when deciding whether to abuse 

their positions by asking for sexual favors, and when 

 21 
responding to sexual harassment complaints. As Glass 

held, evidence of pervasive sexual harassment makes

retaliation claims more credible, because harassers may be 

expected to resent attempts to curb their male prerogatives. 

See Glass, 34 F.3d at 195; see also Hawkins v. Hennepin 

Technical Ctr., 900 F.2d 153, 156 (8th Cir. 1990). 

Evidence of sexually derogatory and sexist harassment 

makes disparate treatment claims more credible as well, 

since such discriminatory acts stem from similar motives. 

See Glass, 34 F.3d at 192; Josey, 996 F.2d at 641; 

Hawkins, 900 F.2d at 155; Hunter, 797 F.2d at 1421. Other 

courts have found similarly with respect to quid pro quo 

claims. See Heyne, 69 F.3d at 1479-80; Phillips v. Smalley 

Maintenance Servs., Inc., 711 F.2d 1524, 1532 (11th Cir. 

1983); Sowers v. Kemira, Inc., 701 F. Supp. 809, 816 (S.D. 

Ga. 1988). In this case, because of its high probative value, 

there was no abuse of discretion in admitting the 

challenged testimony from other officers.12 Any putative 

prejudice was not unfair, and at all events was outweighed 

by the probative value. Nor are any of the other Rule 403 

factors present to counsel exclusion. 

We do believe that evidence of events from 1979 to 1981 

was improperly admitted because it was too distant in time 

from the events at the center of the ACPD's liability. Hurley 

did not claim a continuing violation from 1979 to 1992, and 

the district court abused its discretion when it admitted 

evidence from that distinct period in Hurley's career. We 

may find such error harmless only if "it is highly probable 

that the error did not affect the outcome of the case." 

Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 53 (3d 

Cir. 1989); see also McQueeney v. Wilmington Trust Co., 

779 F.2d 916, 924, 927-28 (3d Cir. 1985). 

_________________________________________________________________ 

12. We also note that the alleged vagueness in the testimony, which the 

ACPD emphasizes, is limited to the testimony about general conditions 

in the ACPD and not to the many specific incidents to which the 

witnesses testified. This "vagueness" stems from the fact that male 

officers' misconduct was apparently so common as to blend into the 

background except when something particularly egregious occurred. The 

extent to which witnesses' inability to identify dates and places affected 

the witnesses' credibility could be, and was, addressed on crossexamination. 

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

noted: 

 This is a case where the plaintiff was compelled to 

 attend roll call in front of a life-size drawing of herself 

 performing oral sex as her supervisor, Madamba, sat 

 eight feet away; where, in addition to pervasive graffiti 

 directed at plaintiff, a sanitary napkin bearing 

 sergeant's stripes dangled over the podium from which 

 she spoke, and a dildo was affixed to a wall or ceiling 

 nearby; and where plaintiff's professionalism and 

 performance were constantly undermined because the 

 men on the force could not tolerate a women among 

 them. It is a case where the plaintiff's supervisor 

 responded to plaintiff's entreaties by insinuating that 

 he might be able to help her if only she would sleep 

 with him. 

Hurley, 933 F. Supp. at 413 (citations omitted). When 

viewed against the uncontestably relevant and admissible 

evidence, it is highly improbable that the improperly 

admitted evidence affected the judgment in this case. 

Indeed, were we to hold all of the evidence challenged by 

the ACPD inadmissible, we believe that its admission would 

still amount to harmless error, so clear is the evidence of 

the harassment Hurley experienced. 

For the foregoing reasons, the ACPD's Rule 403-based 

evidentiary arguments fail. 

B. Dr. Hoyme's "Surprise" Testimony 

Dr. Hoyme, plaintiff's psychological expert, issued his 

first report on November 16, 1994. In that report, he wrote 

that "[m]y diagnosis [of Donna and Patrick Hurley] is 

Adjustment Disorder with mixed features of anxiety and 

depressed mood (309.28 DSM IV) . . . . This diagnosis 

carries an implied causal connection between their 

traumatic experiences (sexual harassment, hostile work 

environment, and subsequent harassment) and their 

symptoms." App. at 5387. Subsequently, on February 20, 

1995, Dr. Hoyme submitted another report in response to 

a report issued by defendants' psychological expert, Dr. 

Toborowsky. According to Dr. Hoyme's rebuttal report: 

 23 
 Mrs. Hurley has experienced severe emotional injury 

 and pain as the result of sexual harassment in the 

 course of her work in the Atlantic City Police 

 Department. Contrary to Dr. Toborowsky's stance, it is 

 not necessary to prove that she has developed 

 diagnosable psychiatric disorder in order to recognize 

 or validate this substantial harm. 

Id. at 5849. 

On March 2, 1995, the magistrate judge ordered that Dr. 

Hoyme's rebuttal report be barred as untimely. Hurley 

appealed this decision to the district court, and the court 

initially upheld the magistrate's decision. The court also 

ruled, however, that Hurley could renew this motion at trial 

when the court "would have a better sense of the 

significance of the testimony." Hurley, 933 F. Supp. at 408. 

Hurley renewed her motion at trial, and the district court 

overruled the magistrate's decision "[b]ecause [the court 

was] concerned that the magistrate judge's sanctions 

against the plaintiff cut too close to the essential truthseeking function of the Court . . . ." Id. At trial, Dr. Hoyme 

testified about "another diagnosis that didn't neatly fit into 

the DSM criteria": a reaction to a "psychological assault." 

App. at 1667-68. He further testified that the defendants' 

conduct constituted an "aggressive attack on her" and a 

kind of "sexual assault" which caused severe pain 

comparable to a physical touching. Id. at 1726-29. In 

closing, Hurley's counsel also referred to Dr. Hoyme's 

"psychological assault" testimony as a basis for awarding 

damages. 

The ACPD argues that Dr. Hoyme's reference to a "second 

diagnosis" regarding a "psychological assault" on Donna 

Hurley constituted unfair surprise because the testimony 

was materially different from that offered previously and 

provided the defendants with no meaningful opportunity for 

rebuttal. This unfair surprise, according to the ACPD, was 

"inconsistent with substantial justice" and warrants a new 

trial. We disagree. 

A district court's decision to allow an expert to testify 

beyond the scope of his report is reviewed under an abuse 

of discretion standard. See Greate Bay Hotel & Casino v. 

 24 
Tose, 34 F.3d 1227, 1236 (3d Cir. 1994). "We determine 

whether there has been an abuse of discretion by 

considering four factors: `(1) the prejudice or surprise in 

fact to the opposing party, (2) the ability of the party to cure 

the prejudice, (3) the extent of disruption of the orderly and 

efficient trial of the case, and (4) the bad faith or willfulness 

of the non-compliance.' " Id. (quoting Beissel v. Pittsburgh & 

Lake Erie R. Co., 801 F.2d 143, 150 (3d Cir. 1986)). 

We cannot conclude that the district court abused its 

discretion by permitting Dr. Hoyme's so-called "second 

diagnosis." First, notwithstanding Dr. Hoyme's rebuttal 

report, his initial report hinted strongly at this "second 

diagnosis," because it contained an explanation of the 

severe harm inflicted by the extensive sexual harassment 

Hurley experienced. Second, the defendants actually

received the rebuttal report and were unquestionably aware 

of the appealability of the magistrate judge's order. 

Moreover, the defendants had several weeks after Dr. 

Hoyme's testimony to prepare rebuttal testimony and, thus, 

cure any possible prejudice. Indeed, Dr. Toborowsky

testified that he had previously read both the deposition 

and courtroom testimony of Dr. Hoyme. Third, there was no 

need to call any witnesses out of order or any other 

disruptions at trial. Finally, while this evidentiary dispute 

might have been the product of "discovery-based bickering 

between the lawyers" and the "institutional differences 

between lawyers, who demand unvarying precision, and 

psychiatrists," see Hurley, 933 F. Supp. at 408, there is no 

evidence of bad faith. 

C. Inference of Jury Prejudice and Passion 

The ACPD contends that the $700,000 punitive damage

award was the "product of the same abandonment of`cool 

reason' in favor of `outrage and disgust' which shocked the 

trial court's conscience with respect to the compensatory 

damages." ACPD Br. at 46. Indeed, the ACPD argues that 

this "award was so excessive as to give rise to a clear 

inference that the jury verdict was the result of mistake, 

passion, prejudice or partiality." Id. at 43. Therefore, 

according to the ACPD, we must set aside the jury's verdict 

and order a new trial. Once again, we disagree. 

 25 
In Dunn, we observed that a defendant would be entitled 

to a new trial, rather than remittitur, upon showing that 

"the jury verdict resulted from passion or prejudice." Dunn, 

1 F.3d at 1383; see also 11 Charles Alan Wright et al., 

Federal Practice and Procedure S 2815, at 165 (2d ed. 1995) 

(remittitur is "not proper if the verdict was the result of 

passion and prejudice, since prejudice may have infected 

the decision of the jury on liability, as well as on damages"). 

We further rejected the argument, however, that"the size of 

the award alone was enough to prove prejudice and 

passion." Dunn, 1 F.3d at 1383; see also Mason v. Texaco, 

Inc., 948 F.2d 1546, 1561 (10th Cir. 1991) (reducing a 

punitive damage award of $25 million by one-half because 

it shocked the court's conscience, but upholding the jury's 

liability determination because there was no evidence it was 

tainted). Here, as in Dunn, the defendant's only evidence of 

jury prejudice and passion is the amount of the punitive 

damage award itself. This is insufficient, and the ACPD's 

argument cannot prevail. 

D. Jury Charge on Hostile Work Environment 

The ACPD also argues that it is entitled to a new trial 

because the district court erred in its charge to the jury on 

hostile work environment by mixing different concepts from 

Title VII and the LAD. Specifically, defendant contends that 

the district court strayed from Lehmann v. Toys`R' Us, Inc., 

626 A.2d 445 (N.J. 1993), in which the New Jersey 

Supreme Court formulated the basic standard for 

determining whether acts of harassment in the workplace 

constitute invidious discrimination in violation of the LAD. 

Under the Lehmann standard, a plaintiff must demonstrate 

that "the complained-of conduct (1) would not have 

occurred but for the employee's gender; and it was (2) 

severe or pervasive enough to make a (3) reasonable woman 

believe that (4) the conditions of employment are altered 

and the working environment is hostile or abusive." Id. at 

453. 

The ACPD argues that the district court erred when it 

instructed the jury to consider ten factors, which the 

district court primarily derived from the ABA Model Charge13 

_________________________________________________________________ 

13. Section 104[2][b] of the ABA Model Charge provides the following list 

of factors that must be considered in hostile work environment claims: 

 26 
and Title VII caselaw, when determining whether the ACPD 

was liable under the LAD. Finally, the ACPD argues that 

the district court failed to instruct the jury as to precisely 

how each of the factors bore on the issue of sexual

harassment. "We generally review jury instructions for 

abuse of discretion to determine whether they are 

misleading or inadequate." Woodson v. Scott Paper Co., 109 

F.3d 913, 929 (3d Cir.), cert. denied, 118 S. Ct. 299 (1997). 

"However, when the question is whether the instructions 

misstate the law, our review is plenary." Id. (citing Saverese 

v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989)). We review 

jury instructions to determine whether, "taken as a whole, 

they properly apprised the jury of the issues and the 

applicable law." Dressler v. Busch Entertainment Corp., 143 

F.3d 778, 780 (3d Cir. 1998) (quotation marks omitted). 

Under the first prong of the Lehmann test, a plaintiff 

must show "by a preponderance of the evidence that she 

suffered discrimination because of her sex." Lehmann, 626 

_________________________________________________________________ 

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

 (2) the degree and type of obscenity that filled the environment of 

 the workplace, both before and after the plaintiff arrived; 

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

 environment; 

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

 (5) the frequency of the offensive encounters; 

 (6) the severity of the conduct; 

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

 (8) whether the conduct was unwelcome; 

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

 (10) whether the conduct was physically threatening; 

 (11) whether it was merely an offensive utterance; 

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

 performance. 

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

 27 
A.2d at 454. Because the LAD is not a fault or intent-based 

statute, a plaintiff "need not show that the employer 

intentionally discriminated or harassed her, or intended to 

create a hostile work environment." Id. at 454. 

The second prong requires that the objectionable conduct 

be sufficiently "severe or pervasive" to state an actionable 

claim. See id. at 455 ("We emphasize that it is the

harassing conduct that must be severe or pervasive, not its 

effect on the plaintiff or on the work environment." (citing 

Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991))). In 

adopting this test, the court expressly rejected the "regular 

and pervasive" standard set forth by this court in Andrews, 

895 F.2d at 1482. The New Jersey Supreme Court 

concluded that the Andrews test strayed from the United 

States Supreme Court's standard in Meritor and "would bar 

actions based on a single, extremely severe incident or, 

perhaps, even those based on multiple but randomlyoccurring 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, genderspecific standard, according to the court, "provides 

flexibility" by "incorporating community standards" and 

focuses attention "on the nature and legality of the 

conduct, rather than on the reaction of the individual 

plaintiff," Lehmann, 626 A.2d at 458, and it also 

"recognize[s] and respect[s] the difference between male and 

female perspectives on sexual harassment." Id. at 459. 

_________________________________________________________________ 

14. In Taylor, the plaintiff presented evidence that her chief ranking 

supervisor called her a "jungle bunny" in the presence of another 

supervising officer. The court concluded that these circumstances "were 

sufficient to establish the severity of the harassment and alter the 

conditions of plaintiff 's work environment." Id. at 693. Severity is 

measured by surrounding circumstances, see id. at 692, and " `[t]he 

required showing of severity or seriousness of the harassing conduct 

varies inversely with the pervasiveness or frequency of the conduct.' " 

Lehmann, 626 A.2d at 455 (quoting Ellison, 924 F.2d at 878). 

 28 
"Only an idiosyncratic response of a hypersensitive plaintiff 

to conduct that a reasonable woman would not find 

harassing is excluded by the reasonable woman standard." 

Id. at 458-59. 

Finally, under the fourth Lehmann prong, a plaintiff must 

show that "her working conditions were affected by the 

harassment to the point at which a reasonable woman

would consider the working environment hostile." Id. at 

457. A plaintiff need not demonstrate psychological harm or 

economic loss. 

In this case, the district court's hostile work environment 

sexual harassment charge provided as follows: 

 It is important to understand that, in determining 

 whether a hostile work environment existed at the 

 Atlantic City Police Department, you must consider the 

 evidence from the perspective of a reasonable woman 

 in the same position. You must look at the evidence 

 from the perspective of a reasonable woman's reaction 

 to a similar environment under similar circumstances. 

 That is, you must determine whether a reasonable 

 woman would have been offended or harmed by the 

 conduct in question. You must evaluate the total 

 circumstances and determine whether the alleged 

 harassing behavior could be objectively classified as 

 the kind of behavior that would seriously affect the 

 psychological or emotional well-being of a reasonable 

 woman. The reasonable woman is simply an average 

 woman of normal sensitivity and emotional make-up. 

 It is equally important to understand, however, that 

 the reasonable woman standard applies only to the 

 issue of liability for hostile work environment sexual 

 harassment. It does not apply to liability for intentional 

 sexual harassment, retaliation, or quid pro quo 

 harassment, nor to the calculation of damages. 

 Plaintiff has alleged that she has been subjected to a 

 hostile work environment because of harassment based 

 on her sex. To prevail on this theory, she need not 

 demonstrate any job benefits were conditioned on 

 submitting to hostile sexual conduct or were denied 

 because of refusing to give in to that conduct. Rather, 

 29 
 to establish a claim of hostile work environment sexual 

 harassment, plaintiff must prove by a preponderance of 

 the evidence that the conduct about which she 

 complains, one, would not have occurred but for the 

 employee's gender, and it was, two, severe or pervasive 

 enough to make a, three, reasonable woman believe 

 that, four, the conditions of employment are altered 

 and the working environment is hostile or abusive. 

 The more severe the conduct, the less extensive it 

 need be for you to find it is hostile. 

 Conversely, the less severe the conduct, the more 

 persuasive [sic] or regular it should be in order for you 

 to find that it is hostile. 

 Plaintiff's hostile work environment claim must be 

 related to conditions which actually altered her own 

 work environment. Statements, actions, or conditions 

 which occurred at the Atlantic City Police Department 

 outside the presence of plaintiff and plaintiff was 

 unaware [sic] cannot be considered part of the hostile 

 work environment, unless you find such statements, 

 actions or conditions affected the plaintiff 's own work 

 environment. 

 In evaluating plaintiff's hostile work environment 

 claims you should consider the following factors: one, 

 plaintiff's reasonable expectation upon entering the 

 workplace; two, the total physical environment of the 

 area in which plaintiff worked; three, whether plaintiff 

 was exposed to sexually explicit words or comments, 

 drawings, graffiti, or obscenity in the workplace, and, if 

 so, the degree, persistence, and type such [sic] 

 obscenity to which exposed; four, whether the sexually 

 explicit words or comments, drawings, graffiti or 

 obscenity were directed at plaintiff, and, if so, the 

 frequency of the offensive encounters; five[,] severity of 

 the conduct and the context in which it occurred; six, 

 whether the conduct was unwelcome, that is, conduct 

 plaintiff regarded as unwanted or unpleasant; seven, 

 the likely effect on a reasonable woman's psychological 

 well-being; eight, whether the conduct reasonably[sic] 

 interfered with plaintiff's work performance; nine, the 

 30 
 extent to which supervisors upon learning of sexually 

 harassing conduct, acted promptly and effectively to 

 respond to such conduct; [ten], whether the 

 complained of conduct was directed at men and 

 woman alike. 

 It is not enough that the work environment was 

 generally harsh, friendly [sic], unple[a]sant, crude or 

 vulgar to all employees of both sexes. In order tofind 

 a hostile work environment sexual harassment, you 

 must find that plaintiff was harassed because she is a 

 woman. The harassing conduct may, but need not be 

 sexual in nature. Rather, its defining characteristic is 

 that the harassment occurs because of the victim's sex. 

App. at 5276-79. 

We conclude that the district court's hostile work 

environment charge, taken as a whole, properly apprised 

the jury of the issues and law under the LAD. The charge 

clearly and accurately set forth the four-prong test set forth 

in Lehmann. Moreover, the court's list of factors provided 

additional guidance to the jury for its consideration of 

whether the requisite elements of liability had been 

established. Although this nonexhaustive list was largely 

derived from the ABA Model Charge and Title VII caselaw, 

we believe that the New Jersey Supreme Court wouldfind 

many of these factors useful and relevant for deliberations 

in a hostile work environment sexual harassment claim 

under the LAD.15 See Lehmann, 626 A.2d at 452 ("In 

construing the terms of the LAD, this Court has frequently 

looked to federal precedent governing Title VII . . . as a key 

source of interpretive authority." (citation and quotation 

marks omitted)). As a result, we reject the ACPD's argument.16 

_________________________________________________________________ 

15. Because certain factors may or may not be relevant in any given 

case, our conclusion is necessarily limited to the facts of this case. 

Moreover, we do not suggest that the New Jersey Supreme Court would 

only look to the ABA Model Charge and Title VII caselaw when fashioning 

a set of factors to guide the jury in its deliberations. 

16. Because we conclude that the ACPD remains liable under the LAD, 

we need not consider whether the district court's charge misstated the 

law under Title VII. 

 31 
We also find no merit in the ACPD's contention that one 

of the factors referenced in the charge, the plaintiff's 

reasonable expectation upon entering the workplace, is 

inconsistent with Lehmann's requirement that the finder of 

fact consider workplace hostility "from the perspective of a 

reasonable woman." ACPD's Br. at 49 (quoting Lehmann, 

626 A.2d at 457-58). In this case we do not see the harm 

from the shifting reference. Indeed, we fail to see how this 

distinction could aid the ACPD since, if anything, the 

"reasonable expectation upon entering the workplace" factor 

seems to give an employer extra leeway when a woman

enters what she knows to be a traditionally male preserve, 

whereas the generalized reasonable woman standard is less 

concerned with what a workplace has traditionally been like 

and focuses on what a reasonable woman may rightfully 

expect from her employers. Finally, we reject the ACPD's 

contention that the district court erred in failing to instruct 

the jury as to precisely how each of the factors bore on the 

issue of sexual harassment. 

E. Faragher v. City of Boca Raton and Burlington 

Industries v. Ellerth 

After the initial oral argument on this appeal, the

Supreme Court decided Faragher v. City of Boca Raton and 

Burlington Industries v. Ellerth. These decisions 

substantially changed the law of Title VII on employer 

liability. The ACPD contends that it is entitled to a new trial 

under the Ellerth/Faragher standards. For a variety of 

reasons, however, we conclude that the new structure and 

taxonomy of Title VII liability makes no difference to the 

outcome in this case. We first address the ACPD's claim 

that it was entitled to an affirmative defense, and then 

discuss the effects of Ellerth and Faragher on the "quid pro 

quo" claims in the case. 

1. The Affirmative Defense 

The ACPD claims that the trial court's jury instructions 

were defective because the jury was instructed that the 

existence of an effective sexual harassment policy was 

merely a factor to be considered in imposing liability and 

not an absolute defense. There are four problems with this 

claim. 

 32 
First, Ellerth and Faragher do not, as the defendants 

seem to assume, focus mechanically on the formal 

existence of a sexual harassment policy, allowing an 

absolute defense to a hostile work environment claim 

whenever the employer can point to an anti-harassment 

policy of some sort. The necessary elements of a defense are 

"(a) that the employer exercised reasonable care to prevent 

and correct promptly any sexually harassing behavior, and 

(b) that the plaintiff employee unreasonably failed to take 

advantage of any preventive or corrective opportunities 

provided by the employer or to avoid harm otherwise." 

Ellerth, 118 S. Ct. at 2270. A stated policy should be 

"suitable to the employment circumstances." Id. 

The proof at trial focused extensively on what the ACPD 

did and failed to do about the harassment--issuing written 

policies but not enforcing them, painting over offensive 

graffiti every few months only to see it go up again in 

minutes, failing to investigate sexual harassment as it 

investigated and punished other forms of misconduct. 

Although it diligently attempted to convince the jury that its 

policies and procedures protected it, the ACPD failed to 

make a colorable case that its policies met the 

Ellerth/Faragher standards. See Hurley, 933 F. Supp. at 

419; cf. Payton v. New Jersey Turnpike Auth., 691 A.2d 321 

(N.J. 1997) (holding that a slow remedial process or one 

that leaves an employee exposed to harassment cannot be 

effective). In Faragher, in fact, the Court found it 

unnecessary to remand for consideration of the newly 

codified defense, since the record established that Boca 

Raton failed to disseminate its policies or monitor the acts 

of its employees, so that as a matter of law it could not 

prevail on the defense. See Faragher, 118 S. Ct. at 2293; 

see also Booker v. Budget Rent-a-Car Sys., 17 F. Supp. 2d 

735 (M.D. Tenn. 1998) (rejecting the affirmative defense on 

a summary judgment motion because the employer had 

notice of incidents of discrimination but failed to act on it). 

A similar analysis applies here. The district court

commented extensively on the ACPD's failure to implement 

anti-harassment policies or to inquire into the harassing 

behavior of any of its employees. It was evident that 

Madamba, a supervisor with the duty to stop harassment, 

 33 
was aware of much of the harassment, even that which he 

did not himself inflict. The ACPD insists that there were five 

mechanisms that Hurley should have explored in full before 

suing: her direct supervisor, Internal Affairs, the Affirmative 

Action Officer, the Chief through his "open door policy," and 

the union grievance procedure. See ACPD Letter, July 16, 

1998, at 5. However, there was extensive testimony at trial 

about the ineffectiveness of these mechanisms. Moreover, 

Hurley had no obligation to try all these mechanisms, 

because her immediate supervisor, who was responsible for 

preventing and redressing harassment pursuant to the 

ACPD's own policy, was on notice of the harassment. An 

employer cannot "use its own policies to insulate itself from 

liability by placing an increased burden on a complainant 

to provide notice beyond that required by law." Williamson 

v. City of Houston, 148 F.3d 462, 467 (5th Cir. 1998).17 

Second, the ACPD apparently misreads the jury 

instructions. The liability instructions first stated that the 

ACPD would be liable for acts within the scope of a

supervisor's employment, which was to be judged by the 

time, place, and foreseeability of the harassing acts. See 

XXII App. at A5281-82. The instructions continued that the 

existence of "a widely-disseminated anti-harassment policy 

or a well-publicized and an effective formal or informal 

complaint structure, training or monitoring mechanisms" 

would be evidence that sexual discrimination was not 

within the scope of employment. Id. at A5282.18 Then, the 

_________________________________________________________________ 

17. See also Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) 

(holding that, if a direct supervisor who had the responsibility to stop 

harassment knew of and failed to act against it, the plaintiff has no 

further obligation to bring it to the employer's attention); Young v. 

Bayer 

Corp., 123 F.3d 672, 675 (7th Cir. 1997) (finding it sufficient for a 

plaintiff to give notice to someone who should reasonably be expected to 

stop the harassment or refer the complaint up the chain of command to 

someone who can stop it). 

18. The Ellerth/Faragher defense applies only to harassment occurring 

outside the scope of employment. See Ellerth, 118 S. Ct. at 2267. For 

harassment to fall within the scope of employment, the harasser must be 

furthering the employer's purposes or acting in what he believes to be 

his employer's interests. See id. at 2266. The Court did not discuss how 

such motivations were to be determined, and we need not today address 

 34 
instructions set forth the standard agency law on which 

Faragher and Ellerth relied--the employer is not liable for 

acts outside the scope of employment unless (1) the

employer intended the conduct; (2) the employer was

negligent or reckless in that it knew or should have known 

about the supervisor's actions and failed to take prompt 

and effective remedial measures; or (3) the supervisor was 

purporting to act as a supervisor, he had authority to 

control the employee's working environment, and his

actions were aided and abetted by the authority delegated 

by the employer. See XXII App. at A5282-83 (tracking 

Lehmann, 626 A.2d at 461-62). 

Next, the instructions listed factors to consider when 

determining whether the employer's negligence contributed 

to a supervisor's sexual discrimination: the existence of a 

formal anti-harassment policy; the presence of effective 

formal or informal complaint structures, training, and/or 

monitoring mechanisms; the extent to which the employee 

used the existing complaint procedures; and whether the 

employer took prompt and effective remedial action in 

response to complaints. According to the instructions, these 

factors should be evaluated together. See id. at A5283 

(tracking Lehmann, 626 A.2d at 463). Finally, the 

instructions stated that the ACPD would be responsible for 

harassment by non-supervisory employees if it knew or 

should have known that such harassment was occurring 

and failed to take preventive or curative measures when it 

had reason to believe that harassment may have occurred; 

_________________________________________________________________ 

whether a patently ineffective harassment policy might communicate to 

male employees that harassment was an acceptable, expected means to 

interact with female officers. Rather, if the jury decided that the lack 

of 

an effective harassment policy justified holding the ACPD liable under a 

scope of employment theory, the same result would have been mandated 

under the Ellerth/Faragher standards for holding employers liable for 

negligence or for imposing vicarious liability when supervisory 

harassment creates a hostile work environment. The overlap between the 

standards was made clear by the instructions on negligence, which we 

describe infra in text. Thus, although this section of the instructions 

would no longer be appropriate to describe the scope of employment in 

a Title VII case, it did not mistakenly allow liability to be imposed in 

any 

circumstances in which an employer should properly be absolved. 

 35 
the jury was instructed to consider whether the ACPD took 

"all reasonable steps necessary to address sexual 

harassment." Id. at A5284. 

The ACPD has failed to identify how these instructions 

conflict with Faragher and Ellerth, which relied on the same 

agency principles as Lehmann. Indeed the able trial judge 

quite presciently anticipated Faragher and Ellerth. The 

ACPD argues that the instructions allowed the jury to find 

it liable if the jury concluded that some factors outweighed 

the existence of an effective sexual harassment policy. See 

ACPD Letter, July 16, 1998, at 8. The ACPD presumably 

means that the jury could have used the extent of the 

harassment to discount the ACPD's anti-harassment policy, 

although the ACPD is not clear on this issue. Of course, 

under Faragher, the extent of the harassment would be 

helpful evidence of the actual effectiveness of a formal 

policy, which is a necessary element of the Faragher 

defense. But that is beside the point, as the ACPD has 

confused the part of the instructions that sets forth a tenfactor test for determining whether a hostile environment 

existed, see supra Section II.A.4, with the part of the 

instructions that dealt with the ACPD's liability assuming 

that the jury found a hostile environment existed, see XXII 

App. at A5282-84. If anything, the ACPD got to double-dip 

on its harassment policy, because the jury was told to 

factor it into the initial hostile environment determination 

and then to use it again when considering liability. See 

Payton, 691 A.2d at 327 (approving this dual use). 

A third reason to reject the ACPD's contention is that 

Faragher and Ellerth establish that the defense of employer 

due care is an affirmative one. See Ellerth, 118 S. Ct. at 

2270. Thus, the employer bears the burden of proof. The 

instructions given at trial put the burden on Hurley to 

prove that the ACPD was liable for negligence despite its 

harassment policy and other remedial measures. Any error, 

therefore, worked in favor of the ACPD and could not justify 

a new trial. 

Finally, Faragher and Ellerth do not necessarily control 

this case, which was also brought under the New Jersey 

LAD. Even if the jury instructions are not quite right with 

respect to Faragher, there is no colorable argument that 

 36 
they misstated New Jersey law. For all these reasons, we 

conclude that these recent additions to Title VII 

jurisprudence do not require us to reverse the judgment of 

the district court. 

2. The Quid Pro Quo Instruction 

Hurley's quid pro quo claim was based on Madamba's 

alleged sexual invitations to her. She testified that when 

she complained about harassment to Madamba, he replied 

that women in the private sector avoided harassment

because they "sleep with their bosses." When she attempted 

to change the subject and commented on Madamba's 

apparent weight loss, he stated that he lost weight by 

"having sex a few times a day," and that women came to 

him "when they're ready." Hurley interpreted this entire 

conversation as a solicitation for sex. 

The dissent argues that Ellerth and Faragher require us 

to reverse because those cases held that there could be no 

quid pro quo claim as such if the plaintiff neither submitted 

to sexual demands nor suffered retaliatory action when she 

refused to submit. The jury instructions, however, required 

only that the jury find either that a supervisor conditioned 

tangible job benefits on submission to unwelcome sexual 

conduct, or that a supervisor penalized Hurley for refusing 

to participate in such conduct. It is possible, though not 

certain, that such instructions could be read to cover 

threats that were not acted upon. We agree with the dissent 

that Ellerth and Faragher largely eliminated the distinction 

between hostile work environment claims and quid pro quo 

claims, focusing instead on the presence or absence of 

tangible adverse employment actions. See Durham Life Ins. 

Co. v. Evans, ___ F.3d ___, 1999 U.S. App. LEXIS 587 (3d 

Cir. Jan. 22, 1999). However, we conclude that the 

judgment should nonetheless be upheld. 

The dissent persuasively identifies the reasons that the 

quid pro quo claim was the least tenable of Hurley's claims, 

at least under Faragher and Ellerth. 19 In fact, the conduct 

_________________________________________________________________ 

19. We have no doubt that Madamba's suggestive remarks could be 

interpreted as a threat, and we do not mean to suggest that remarks of 

this sort cannot found a quid pro quo claim, though we agree with the 

 37 
of which she complained was part of the hostile work 

environment she experienced, and this would necessarily 

have been apparent to the jury.20 But in light of the total 

record here, we are satisfied that no jury would have found 

the defendants liable solely on the basis of the quid pro quo 

instruction. Multiple sources--including physical evidence 

--corroborated the most egregious examples of sexual 

harassment, including the tampon incident and the 

obscene graffiti, see, e.g., infra n.5, while the only evidence 

of Madamba's suggestion came from Hurley's testimony. To 

us, it is inconceivable that a jury would have believed her 

testimony on this one issue, concluded that the ACPD was 

vicariously liable for one advance, and discounted the other 

incidents, which were sufficiently pervasive to consitute a 

hostile environment. Juries may be unpredictable, but we 

are not willing to posit total illogic, which would be contrary 

to our faith in the jury system as a whole. We are thus 

persuaded that any error was harmless. 

We addressed a similar issue in Murray v. United of

Omaha Life Insurance Co., 145 F.3d 143 (3d Cir. 1998): 

 We agree that the jury charge as given by the district 

 court did not conform to New Jersey law as we predict 

 it. Nonetheless, we will not reverse a judgment where 

_________________________________________________________________ 

dissent that the evidence of retaliation for refusal to accede is 

gossamer. 

Nor need we predict how New Jersey will react to Faragher and Ellerth. 

The LAD is a remedial statute, in some respects broader and more 

flexible than Title VII. See Lehmann, 626 A.2d at 452; id. at 460 (holding 

employers strictly liable for equitable damages and relief). This is so 

even 

though New Jersey often looks to the federal system for interpretive 

authority. See id. at 452. We thus believe it quite possible that New 

Jersey might retain a quid pro quo cause of action as such even after 

Ellerth and Faragher. The District Court's instructions, as the dissent 

notes, see Dissent at 66, are consistent with Lehmann. See Lehmann, 

626 A.2d at 452; see also Pukowsky v. Caruso, 711 A.2d 398, 403 (N.J. 

Super. Ct. App. Div. 1998). 

20. Madamba's alleged conduct is the kind of conduct for which the 

ACPD could attempt to interpose its affirmative defense, but, as we have 

already held, that defense would fail because the ACPD's dereliction was 

even worse than that in Faragher, in which the Court declined to offer 

the defendants an opportunity to make out the defense on remand. 

 38 
 "it is highly probable that the error did not contribute 

 to the judgment," McQueeney v. Wilmington Trust Co., 

 779 F.2d 916, 924 (3d Cir. 1985), i.e., where the 

 challenged error was harmless. 

Id. at 156 (footnote omitted). An issue similar to that in this 

case arose in American Airlines, Inc. v. United States, 418 

F.2d 180 (5th Cir. 1969), in which the District Court 

instructed the jury that it could return a verdict for the 

plaintiff if it found negligence in any one or more of thirty 

particulars. Each was supported by substantial evidence 

except one, and on that one count it was factually 

impossible that liability could appropriately be found. The 

court found that "it is . . . inconceivable that in the mass 

of testimony so clearly establishing negligence in thirty 

other particulars this issue could have influenced the 

verdict against American." Id. at 195 (citing Fed. R. Civ. P. 

61). Although there were fewer than thirty viable theories in 

this case, the weight of evidence and argument on the other 

theories of liability leads us to the same conclusion here. 

We concede the general correctness of the dissent's

proposition that faulty instructions on which a general 

verdict could have been based require reversal. The

foundational case of Maryland v. Baldwin, 112 U.S. 490 

(1884), addressed itself equally to faulty instructions and to 

erroneous admission of evidence, and announced that such 

errors require reversal. See id. at 493 ("If . . . upon any one 

issue error was committed, either in the admission of 

evidence or in the charge of the court, the verdict cannot be 

upheld . . . ."). It has long been acknowledged, however, 

that Baldwin does not speak to the harmless error 

situation. See Asbill v. Housing Auth. of the Choctaw Nation, 

726 F.2d 1499, 1504 (10th Cir. 1984) ("We note[Baldwin] 

does not paint with as broad a brush as appears from the 

language quoted. As with all errors committed at trial, a 

litmus test for reversal is whether the appellant was 

thereby unjustly prejudiced."). Evidentiary errors are 

subject to harmless error analysis, and the same is true for 

errors in instruction. See id. 

Given Federal Rule of Civil Procedure 61's command to 

disregard "any error" that does not affect "the substantial 

rights of the parties," and the authorities set forth in the 

 39 
margin,21 we do not believe that we are creating a new rule. 

The cases cited by the dissent for the proposition that we 

must reverse are distinguishable because they deal with 

instances in which the record rendered it impossible to 

determine the basis for the jury's decision. We discuss 

them, too, in the margin.22 To the extent that the dissent is 

_________________________________________________________________ 

21. See also Pressley v. Haeger, 977 F.2d 295, 298 (7th Cir. 1992) 

(applying harmless error analysis to faulty instructions that, given the 

evidence, were unlikely to have influenced the jury); Kern v. Levolor 

Lorentzen, Inc., 899 F.2d 772, 777 (9th Cir. 1990) (where the relevant 

facts were the same for all theories, the evidence and argument focused 

on a legally correct theory, and it was unlikely that the incorrect theory 

influenced the jury, a verdict could be upheld despite one erroneous 

instruction); Kassel v. Gannett Co., 875 F.2d 935, 950 (1st Cir. 1989) 

(invoking harmless error rule for faulty instructions but rejecting it on 

the merits because of the evidence and arguments at trial); Lusby v. T.G. 

& Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir. 1986) (finding that an 

improper instruction, identical to one rejected by the Supreme Court 

because it did not contain all the necessary elements, did not mandate 

reversal because there was "substantial evidence" supporting the correct 

theory of liability, and holding harmless error analysis appropriate to 

jury instructions "when the erroneous instruction could not have 

changed the result of the case"); Square Liner 360, Inc. v. Chisum, 691 

F.2d 362, 377 (8th Cir. 1982) (applying Baldwin with harmless error 

analysis); Horne v. Georgia S. & Fla. Ry. Co., 421 F.2d 975, 980 (5th Cir. 

1970) (finding a charge, if erroneous, harmless because the underlying 

facts so firmly supported the verdict on a proper charge); Roginsky v. 

Richardson-Merrell, Inc., 378 F.2d 832, 837-38 (2d Cir. 1967) (applying 

similar reasoning when one theory was improperly submitted to the 

jury); 11 Wright et al., Federal Practice & Procedure S 2886, at 467-70 

("Errors in instructions routinely are ignored if a motion for a directed 

verdict should have been granted, or if the erroneous instruction went to 

an issue that is immaterial in light of the jury's verdict, or if it is 

otherwise apparent that the error could not have changed the result." 

(footnotes omitted)). 

22. See Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 

534 (3d Cir. 1998) (portion of instructions invited the jury to use 

impermissible factors, and, given the focus of the trial evidence, "such 

infection almost certainly occurred"); Wilburn v. Maritrans GP Inc., 139 

F.3d 350, 361 (3d Cir. 1998) (jury could have based liability on incidents 

of alleged negligence for which the standard of care was beyond common 

knowledge, and there was no expert testimony to guide them as to those 

incidents); Avins v. White, 627 F.2d 637, 646 (3d Cir. 1980) (reversing a 

 40 
concerned about broad application of the harmless error 

rule, we agree entirely, and emphasize that our decision is 

founded on the extreme facts of this case. Because any 

error in the quid pro quo instruction could not by any 

stretch of the imagination change the verdict, we need not 

reverse. 

III. Punitive Damages 

The ACPD argues that the district court erred by failing 

to instruct the jury that punitive damages could only be 

awarded against the ACPD "if there was `actual 

participation by upper management or willful indifference.' " 

ACPD's Br. at 12 (quoting Lehmann, 626 A.2d at 464).23 

_________________________________________________________________ 

judgment based on the "distinct possibility" that the jury imposed 

liability based on incidents of defamation that should not have been 

submitted to the jury); cf. McKenna v. Pacific Rail Serv., 32 F.3d 820, 

831-32 (3d Cir. 1994) (reversing judgment when an erroneous portion of 

the jury instructions "more than likely" guided the jury's deliberations). 

Carden v. Westinghouse Electric Corp., 850 F.2d 996 (3d Cir. 1988), on 

which the dissent relies, concerned a situation in which the verdict could 

have been based on erroneously admitted "direct" evidence of 

discrimination; here, the instructions did not require the jury to look at 

evidence it should not have considered. Indeed, even Simko v. C & C 

Marine Maintenance Co., 594 F.2d 960 (3d Cir. 1979), while setting forth 

the general rule that errors in instruction require reversal, also cited 

with approval Morrissey v. National Maritime Union, 544 F.2d 19, 26-27 

(2d Cir. 1976), describing its holding as follows: "[T]he general rule . . 

. 

must be followed unless it can be stated with confidence that the same 

verdict would have been returned even if the invalid claim had not been 

submitted to the jury." Simko, 594 F.2d at 967. 

23. The ACPD raises two other arguments concerning the punitive 

damage award, but they need not detain us long. First, the ACPD argues 

that plaintiff 's punitive damage award must be vacated as a matter of 

law because "both public policy and the most reasonable interpretation 

of the statutes [i.e., the Tort Claims Act and the LAD] support the 

conclusion that punitive damages should not be available against a 

public entity under the [LAD]." ACPD's Br. at 20. However, we explicitly 

rejected this argument in Gares v. Willingboro Township, 90 F.3d 720 (3d 

Cir. 1996), and we are unaware of any developments that call this 

decision into question. Second, the ACPD contends that the punitive 

damage award must be vacated because the jury acted inconsistently 

 41 
Because the ACPD did not object to the district court's 

charge on this ground, we will review this claim for plain 

error. 

The ACPD asserts that our plain error analysis should be 

guided by the New Jersey Appellate Division's decision in 

Maiorino v. Schering-Plough Corp., 695 A.2d 353 (N.J. 

Super. Ct. App. Div.), certif. denied, 704 A.2d 19 (N.J. 

1997). In Maiorino, the court observed that"a jury charge 

on punitive damages must include the instruction that 

upper management has to have . . . participated in or 

shown willful indifference to the situation." Id. at 368-69 

(emphasis added) (citing Rendine v. Pantzer, 661 A.2d 1202 

(N.J. 1995)). In fact, the court held that this concept is so 

essential to a fair trial that "the failure to charge the jury 

with the necessity of finding upper management's 

involvement to justify a punitive award is such a 

fundamental flaw that [an appellate court] must recognize 

it as a matter of plain error." Id. at 368 (citation omitted). 

While the Maiorino decision provides persuasive authority 

regarding the substantive correctness of a jury charge in a 

diversity case such as this, it is well established that the 

question of whether error is plain is one of federal law. See 

Hinds v. General Motors Corp., 988 F.2d 1039, 1046 (10th 

Cir. 1993) (discussing harmless error); see also Beardshall 

v. Minuteman Press Int'l, Inc., 664 F.2d 23, 27 (3d Cir. 

1981) ("[T]he failure to object to jury instructions and the 

consequences thereof are procedural and are to be 

governed by federal law."). Accordingly, we must look to this 

_________________________________________________________________ 

when it imposed punitive damage liability on the ACPD but not on 

Madamba, the principal upper manager who was involved. This 

argument is also without merit. Punitive damages are awarded to deter 

and punish, and the jury could easily have concluded that the ACPD 

should pay punitive damages because both its potential for harm and its 

responsibility for the widespread harassment were far greater than 

Madamba's alone. Contrary to the ACPD's portrait of the facts, the 

testimony indicated that Madamba was far from a lone bad apple 

poisoning the ACPD. Moreover, the district court properly instructed the 

jury that an award of punitive damages was purely discretionary. We 

need not inquire further about why the jury chose to exercise its 

discretion in this manner. 

 42 
court's plain error jurisprudence when considering the 

ACPD's appeal with respect to the punitive damage award. 

We have repeatedly stated that, "[i]n the absence of a 

party's preservation of an assigned error for appeal, we 

review only for plain error, and our power to reverse is 

discretionary." Chemical Leaman Tank Lines, Inc. v. Aetna 

Cas. & Sur. Co., 89 F.3d 976, 993 (3d Cir.) (quoting 

Fashauer v. New Jersey Transit Rail Operations, Inc., 57 

F.3d 1269, 1289 (3d Cir. 1995)), cert. denied sub nom. 

Jackson v. Chemical Leaman Tank Lines, Inc., 117 S. Ct. 

485 (1996). However, we should exercise our discretion 

sparingly so that Rule 51 and the beneficial policy goals it 

serves are not emasculated. See Chemical Leaman, 89 F.3d 

at 993-94; McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 

750, 770 n.31 (3d Cir. 1990). "Thus, we should notice the 

error only if [it] is fundamental and highly prejudicial or if 

the instructions are such that the jury is without adequate 

guidance on a fundamental question and our failure to 

consider the error would result in a miscarriage of justice." 

Fashauer, 57 F.3d at 1289 (quoting Bereda v. Pickering 

Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989)) 

(alteration in original) (internal quotation marks omitted). 

In the present matter, there can be no doubt that the 

district court's charge was erroneous. The New Jersey 

Supreme Court has instructed that two distinct conditions 

must be satisfied before punitive damages may be awarded 

under the LAD. First, "punitive damages can only be

assessed against an employer if there was `actual 

participation by upper management or willful indifference.' " 

Maiorino, 695 A.2d at 368 (emphasis added) (quoting

Lehmann, 626 A.2d at 464); see also Maczik v. Gilford Park 

Yacht Club, 638 A.2d 1322, 1326 (N.J. Super. Ct. App. Div. 

1994). Second, a plaintiff must also set forth "proof that the 

offending conduct [is] `especially egregious.' " Rendine, 661 

A.2d at 1215 (quoting Leimgruber v. Claridge Assocs., Ltd., 

375 A.2d 652 (N.J. 1977)). Conduct may be sufficiently 

egregious if it is "intentional, malicious, and`evil-minded.' " 

Gares v. Willingboro Twp., 90 F.3d 720, 728 (3d Cir. 1996) 

(quoting Rendine, 661 A.2d at 1215); see also Rendine, 661 

A.2d at 1215 ("Our cases indicate that the requirement [of 

willfulness or wantonness] may be satisfied upon a showing 

 43 
that there has been a deliberate act or omission with 

knowledge of a high degree of probability of harm and 

reckless indifference to consequences." (citation and 

internal quotation marks omitted)). 

By contrast, the district court's punitive damage charge 

clearly failed to instruct the jury on the upper management 

requirement: 

 If you find that plaintiff has established that either 

 the Atlantic City Police Department or Henry Madamba 

 is responsible for having engaged in acts of sexual 

 discrimination against the plaintiff, you must consider 

 whether to award punitive damages. You are not to 

 consider the issue of punitive damages against 

 Nicholas Rifice. 

 . . . . 

 It is not sufficient to award punitive damages solely 

 on the basis that a defendant has engaged in acts of 

 sexual discrimination. 

 You may award plaintiff punitive damages solely on 

 the basis that a particular defendant maliciously or 

 wantonly violated plaintiff's rights, and an act is done 

 maliciously if it is prompted by ill will or spite toward 

 the injured person, an evil-minded act. An act is done 

 wantonly if it is done with a reckless, callous or 

 deliberate disregard of the injured person's rights. The 

 plaintiff must prove by a preponderance of the evidence 

 that the defendant acted maliciously or wantonly. 

 . . . . 

 In making your decision you should consider the 

 purpose of punitive damages. You may consider 

 whether the punitive damages are appropriate in order 

 to punish the defendant adequately, whether punitive 

 damages are necessary to prevent the defendant from 

 committing these acts again, or whether punitive 

 damages are likely to prevent others from committing 

 similar acts. 

 If you find the plaintiff is entitled to an award of 

 punitive damages, the court will hold a further 

 proceeding to determine the amount of that award. 

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

We conclude that the district court committed plain error 

when it failed to instruct the jury that punitive damages 

could only be assessed if there was "actual participation by 

upper management or willful indifference." The court's 

instructions failed to provide proper guidance for the jury 

on a fundamental question. Moreover, our failure to

consider the error would result in a miscarriage of justice. 

There was also serious disagreement at oral argument and 

in the parties' briefs about whether Madamba was actually 

part of upper management during the relevant times. 24 

Accordingly, we will vacate the punitive damage award 

against the ACPD. 

IV. The Individual Defendants 

A. Madamba 

1. Assorted Challenges 

Madamba raises a number of arguments on appeal. First, 

he contends that he was entitled to judgment as a matter 

of law because the jury's finding of individual liability under 

N.J.S.A. 10:5-12(a) was against the weight of the evidence. 

Implicit in this argument is Madamba's assumption that 

the jury returned a verdict of individual liability under 

N.J.S.A. 10:5-12(a). We do not agree with this assumption. 

The district court's charge in this case clearly stated that 

the individual defendants were liable, if at all, for aiding 

and abetting the employer's violation of the Act. 

Hurley argues that supervisors may be individually liable 

as employers under the LAD. The New Jersey courts have 

not specifically addressed the issue. The dissent makes a 

cogent argument for individual liability, and it is clear that 

reasonable people can disagree on this point. But the New 

_________________________________________________________________ 

24. On remand, the district court must determine whether Madamba 

was part of upper management. The ACPD claims that Madamba was a 

captain, along with numerous others with that rank. Although Madamba 

clearly was a supervisor of the personnel under his command, the ACPD 

contends that he did not establish policy and was not at the top tier of 

the department so as to be part of upper management. If a factual 

dispute should arise, however, the issue would be reserved for the jury. 

 45 
Jersey decisions cited by the dissent, see Dissent at 74-77, 

did not rule on individual supervisory liability, and hence 

we do not find them controlling. Nor do we think the 

statutory text offers guidance. While an "employer" may be 

"one or more individuals" under N.J.S.A. 10:5-5(a), that 

does not necessarily mean that supervisors, themselves 

employed by individuals or corporations, are "employers." 

Title VII defines "employer" to include "a person . . . who 

has fifteen or more employees" or "any agent" of such a 

person, 42 U.S.C. S 2000e(b), and it could be subjected to 

the same analysis the dissent uses to find individual 

liability possible under LAD. 

We also note that imposing direct liability on supervisors, 

who are likely to be substantially judgment-proof, will not 

significantly add to the force of anti-discrimination law, 

which already gives employers incentives to ban 

discrimination and monitor supervisors' activities. We think 

that there is insufficient reason to predict that New Jersey 

would diverge from the federal scheme on this point. See, 

e.g., Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 

1061, 1077-78 (3d Cir. 1996). In sum, while the point is 

close, as well as unclear, we are simply not willing to 

predict that New Jersey would include supervisors in the 

statutory definition of "employer."25 

Second, Madamba joins the ACPD's evidentiary 

challenges and its attack on the hostile work environment 

charge, which we have already rejected. Third, he objects 

that the court permitted the jury to find liability against 

Madamba on four separate theories of liability when they 

should have only considered liability for hostile work 

environment sexual harassment. We do not agree, because 

the various theories of liability were properly submitted to 

the jury. There was sufficient evidence on all theories to go 

to the jury, and the instructions clearly indicated that the 

mere presentation of a possible theory to the jury did not 

mean that any defendant was liable on that theory, or on 

any theory. We reiterate that the instructions indicated that 

_________________________________________________________________ 

25. Trends may change, however, and a panel looking at this issue a 

year from now might see New Jersey pursuing a different course on 

supervisory liability through section 10:5-5(a). 

 46 
the individual defendants were liable, if at all, for aiding 

and abetting the employer's violation of the Act. 26 

Fourth, Madamba argues that the court's compensatory 

damages charge failed to instruct the jury "that it cannot 

award damages for any conduct that plaintiff was not 

subjected to, aware of, or with respect to Madamba, which 

occurred prior to 1990." Madamba Br. at 49-50. But the 

relevant section of the instructions adequately limited 

Madamba's exposure by setting forth the time limits on 

recovery and the purposes for which the jury could use 

evidence of acts not directed at Hurley, even though it did 

not specifically mention Madamba at that point. See supra 

Section II.B. 

2. Aiding and Abetting 

Finally, Madamba contends that the court's aiding and 

abetting instruction permitted the jury to impose individual 

liability under an erroneous standard. The LAD provides 

that it is unlawful for "any person, whether an employer or 

an employee or not, to aid, abet, incite, compel or coerce 

the doing of any of the acts forbidden under this act, or to 

attempt to do so." N.J.S.A. 10:5-12(e). In our decision in 

Failla v. City of Passaic, issued after the verdict in this 

case, we held that individual supervisors may be liable for 

aiding and abetting under the LAD. In reaching this

_________________________________________________________________ 

26. Madamba particularly assails the availability of a quid pro quo 

instruction, which we discuss in greater detail supra Section II.E.2. The 

evidence to support Hurley's quid pro quo theory was a conversation she 

had with Madamba in which she complained about harassment and he 

responded that women in the private sector protect themselves from 

harassment by "sleeping with" their bosses and that women approached 

Madamba for sex "when they're ready." After she made no response to 

these suggestive comments, he allegedly took further discriminatory 

action against her by transferring her to a less desirable position. 

However, as we suggested above, this is less a quid pro quo case than 

a hostile environment case, inter alia because it seems more plausible 

that the transfer, if retaliatory, was based on Hurley's memo alleging 

harassment and not on her rejection of Madamba's putative advances. At 

all events, as discussed below in Section IV.A.2, we conclude that a 

reasonable jury could impose aiding and abetting liability on Madamba 

for his substantial contribution to the hostile work environment; his 

putative advances could be evidence of aiding and abetting. 

 47 
conclusion, we predicted that the New Jersey Supreme 

Court would follow the Restatement (Second) of Torts 

S 876(b) to define aiding and abetting liability under the 

LAD. See Failla, 146 F.3d at 158. That section provides 

"that a person is liable for harm resulting to a third person 

from the conduct of another when he `knows that the

other's conduct constitutes a breach of duty and gives 

substantial assistance or encouragement to the other so to 

conduct himself . . . .' " Id. (quoting Restatement (Second) 

of Torts S 876(b)). We also predicted that, under New Jersey 

law, "inaction can form the basis of aiding and abetting 

liability if it rises to the level of providing substantial 

assistance or encouragement." Id. at 158 n.11 (citing Dici v. 

Pennsylvania, 91 F.3d 542, 553 (3d Cir. 1996)). 

While we have rejected a requirement that an individual 

and an employer share the same discriminatory intent in 

order to find aiding and abetting liability, see Failla, 146 

F.3d at 157, we have not fully elucidated the principles that 

might allow a harassing supervisor to be individually liable 

for aiding and abetting the actionable conduct of his 

employer, when the challenged conduct is failing to stop the 

supervisor's own harassment. Cf. United States v. Sain, 141 

F.3d 463, 474 (3d Cir. 1998) (finding that a person can aid 

and abet a corporation that he or she fully owns and 

controls). This is a somewhat awkward theory of liability. 

We believe, however, that it can be explained in this 

manner: A supervisor, under New Jersey law, has a duty to 

act against harassment. See Taylor, 706 A.2d at 691. This 

duty can be violated by deliberate indifference or 

affirmatively harassing acts. When a supervisorflouts this 

duty, he subjects himself and his employer to liability. Cf. 

Judson v. Peoples Bank & Trust Co., 134 A.2d 761 (N.J. 

1957) (holding that both agent and principal will be liable 

when the agent acts within the scope of his employment 

but for his own purposes). 

The ACPD's wrongful conduct in this case was inaction -- 

its tolerance of sexual harassment. The jury had evidence 

before it that Madamba assisted this tolerance by tolerating 

and even encouraging the harassment. As part of the chain 

of command that Hurley was expected to follow, he 

controlled her access to the most effective potential 

 48 
solutions to the harassment. Instead of taking steps to 

assist her, he told her that she should stop complaining or 

it would only get worse; he suggested that sleeping with 

him might protect her; he laughed at the drawings and 

graffiti about her; and he demeaned her as an officer on a 

daily basis. When she finally went over his head and 

requested a transfer because of the harassment, he gave 

his superior a memo accusing her of lying. We are also 

mindful of the moral authority of a police captain over his 

officers. When Madamba laughed at Hurley's discomfort 

and denigrated her, his officers could easily learn the 

lesson that harassing women was part of being an ACPD 

officer. 

Madamba arguably failed to stop the harassment because 

he wanted it to continue. But, as Failla held, there is no 

requirement of "shared intent" between the primary 

wrongdoer and the aider and abettor. If Madamba's malice 

substantially assisted the ACPD's inaction, then he is an 

aider and abettor despite any difference in state of mind, 

assuming that the ACPD can be said to have a mental

state. His liability can be grounded in his failure to stop the 

harassment, which included both active and passive 

components. 

Because we conclude that Madamba could be liable for 

aiding and abetting, we must decide whether the jury 

instructions adequately set forth the applicable law. Based 

on Restatement S 876(b), courts have determined that the 

tort of aiding and abetting involves three elements: "(1) the 

party whom the defendant aids must perform a wrongful 

act that causes an injury; (2) the defendant must be 

generally aware of his role as part of an overall illegal or 

tortious activity at the time that he provides the assistance; 

(3) the defendant must knowingly and substantially assist 

the principal violation." Halberstam v. Welch, 705 F.2d 472, 

477 (D.C. Cir. 1983); see also In re Temporomandibular 

Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 

1495 (8th Cir. 1997); Metge v. Baehler, 762 F.2d 621, 624 

(8th Cir. 1985).27 

_________________________________________________________________ 

27. To determine whether a defendant provided "substantial assistance," 

the comments to section 876 of the Restatement provide a list of five 

 49 
The district court provided the following charge for aiding 

and abetting: 

 [I]ndividual defendants . . . may be held liable only for 

 their individual, affirmative wrongful acts. They may 

 not be held liable for the conduct of others, nor for 

 their inaction or delay in responding to such conduct. 

 An individual defendant may be held liable, however, if 

 he aids, abets, incites, compels or coerces another 

 person's unlawful acts of discrimination. 

 . . . . 

 Aid is defined as meaning to assist, support or 

 supplement the efforts of another. Abet is defined as 

 meaning to encourage, counsel, incite or instigate the 

 commission of unlawful conduct. 

 In order the [sic] aid or abet another to commit an 

 unlawful act, it is necessary that the defendant 

 willfully and knowingly associate himself in some way 

 with the unlawful act, and that he willfully and 

 knowingly seek by some act to make the unlawful act 

 succeed. 

App. at 5284, 5314. 

Although the district court's charge is compatible in some 

respects with the substance of section 876(b), the court 

misstates the law in two crucial respects: First, the charge 

does not allow for liability based on inaction. To be sure, 

Madamba can hardly claim he was prejudiced by this 

particular omission, because the jury concluded that he 

committed affirmative, harassing conduct. But the 

instructions also allowed the jury to impose liability for 

mere assistance, rather than substantial assistance. This 

was incorrect. Moreover, we cannot conclude that it is 

highly probable that the absence of a substantial assistance 

_________________________________________________________________ 

factors: "the nature of the act encouraged, the amount of assistance 

given by the defendant, his presence or absence at the time of the tort, 

his relation to the other and his state of mind." Restatement (Second) of 

Torts S 876(b) cmt. d. (1979). Additionally, the court in Halberstam 

provided a sixth factor, the duration of the assistance provided. See 

Halberstam, 705 F.2d at 484. 

 50 
requirement did not affect the jury's verdict. See 

McQueeney, 779 F.2d at 924. Accordingly, we must vacate 

the judgment against Madamba and order a new trial. 28 

B. Rifice 

Hurley argues in her cross-appeal that the district court's 

aiding and abetting charge misstated the law under the 

LAD by requiring a finding of affirmative sexual harassment 

before Rifice could be found individually liable. She also 

argues that the district court erred by striking her punitive 

damage claim against Rifice. We agree. 

As noted above, the district court's aiding and abetting 

charge provided that the "individual defendants such as 

Nicholas Rifice and Henry Madamba . . . may only be held 

liable for their individual, affirmative wrongful acts." XXII 

App. at 5284. However, in Failla, we expressly rejected this 

view and concluded that "inaction can form the basis of 

aiding and abetting liability if it rises to the level of 

providing substantial assistance or encouragement." Failla, 

146 F.3d at 158 n.11. Accordingly, the district court's 

charge misstated the law under the LAD. The district court 

noted that the charge might well have determined the jury's 

verdict. See Hurley, 933 F. Supp. at 417-18. 

The evidence against Rifice mainly concerned his 

awareness of and apparent indifference to the harassment. 

Rifice testified that he did nothing to stop the harassment 

because the harassers should already have known better 

_________________________________________________________________ 

28. Madamba additionally argues that the jury instructions were flawed 

because they covered aiding and abetting "another person's unlawful 

acts" and then, when the jury inquired further, the court stated that the 

defendant had to "willfully and knowingly associate himself with the 

unlawful act." Madamba Letter at 8. He argues that this is erroneous 

because the instruction should have required association with the 

employer and not the act. This is a misreading of Failla, which rejected 

a shared intent requirement. Moreover, Madamba was associated with 

his employer as a matter of course. Finally, the New Jersey Appellate 

Division case of Baliko v. Stecker, 645 A.2d 1218 (N.J. Super. Ct. App. 

Div. 1994), undermines Madamba's position. Baliko held that aiding and 

abetting liability could exist when one union member aided other union 

members and the sum total of acts was sufficient to cause the union to 

be liable. 

 51 
and he did not believe that he could do anything about it. 

This kind of knowing inaction by a high-level employee with 

responsibility over Hurley and her harassers could, we 

think, rise to the level of substantial assistance. We will 

therefore vacate the judgment in favor of Rifice and the 

district court's order striking plaintiff's punitive damage 

claim against Rifice. 

C. Mooney 

Hurley next argues that the district court erred by

granting summary judgment in favor of defendant Mooney.29 

Mooney argued, and the district court agreed, that he was 

entitled to summary judgment on Hurley's LAD claim 

because, as a non-supervisory co-employee, he was not an 

"employer" for purposes of N.J. Stat. Ann.S 10:5-5(e).30 See 

Hurley v. Atlantic City Police Dept., 1995 WL 854478, at *10 

(D.N.J. Aug. 4, 1995). The court reached this conclusion, in 

part, because "non-supervisory co-employees cannot be 

held liable under Title VII, and New Jersey courts have 

often looked to that statute to resolve questions under the 

NJLAD." Id. (citing Lehmann, 626 A.2d at 452). Although 

Mooney may have had considerable unofficial power 

because of his well-known promotion prospects and highranking relatives, he was not an "employer." 

_________________________________________________________________ 

29. We review the district court's decision granting summary judgment 

de novo, and we apply the same test the district court should have 

applied in the first instance. See Olson v. General Elec. Astrospace, 101 

F.3d 947, 951 (3d Cir. 1996); Helen L. v. DiDario, 46 F.3d 325, 329 (3d 

Cir. 1995). We must determine, therefore, whether the record, when 

viewed in the light most favorable to Hurley, shows that there is no 

genuine issue of material fact and that Mooney was entitled to summary 

judgment as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 

317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249- 

50 (1986). 

30. The Act provides that an employer "includes all persons as defined in 

subsection a. of this section unless otherwise specifically exempt under 

another section of this act, and includes the State, any political or 

civil 

subdivision thereof, and all public officers, agencies, boards or bodies." 

N.J. Stat. Ann. S 10:5-5(e). Subsection (a) provides that the term 

"[p]erson includes one or more individuals, partnerships, associations, 

organizations, labor organizations, corporations, legal representatives, 

trustees, trustees in bankruptcy, receivers, and fiduciaries." N.J. Stat. 

Ann. S 10:5-5(a). 

 52 
Hurley argues that S 10:5-5(e) is not relevant because 

Mooney was individually liable under the LAD as an aider 

and abettor. We predict that, under New Jersey law, a 

nonsupervisory employee cannot be held liable as an aider 

and abettor for his own affirmative acts of harassment, 

because such affirmative acts do not substantially assist 

the employer in its wrong, which is its failure to prevent 

and redress harassment by individual employees. 31 Rather, 

a nonsupervisory employee's harassment takes advantage 

of the employer's wrongful conduct; it is the employee who 

seems to be "aided and abetted" by the employer.32 A 

supervisor, by contrast, may be liable as an aider and 

abettor for active harassment or knowing and willful 

inaction, because in either case the supervisor violates his 

or her duty as a supervisor to prevent and halt harassment.33 

_________________________________________________________________ 

31. The dissent argues that the employer's wrong can also consist of the 

wrongs of its supervisors who commit willful harassment. This is a 

thorny question of agency law; usually, the employer is said to be 

vicariously liable for certain acts of its agents, as in Ellerth and 

Faragher, 

and directly liable for its own negligence, if any, in allowing its agents 

to 

behave badly. Query whether vicarious liability means that a person who 

aids and abets an agent also aids and abets the principal? We need not 

resolve this nice question, however, because the dissent's argument 

presupposes that Madamba can be held individually liable as a harasser 

under N.J.S.A. S 10:5-5(a), a proposition we have already predicted that 

New Jersey courts would reject. Moreover, if the claim were that Mooney 

substantially assisted Madamba's harassment, no reasonable jury could 

find that Mooney's conduct rose to the level of substantial assistance 

based only on the two incidents recited by the dissent. 

32. Mooney claims that a nonsupervisor cannot aid and abet because 

only supervisors can create liability for an employer. As cases imposing 

liability for coworker harassment demonstrate, that statement of the law 

is erroneous. We also note that, under the LAD, "any person" may aid 

and abet; no ability to bind the employer is necessary. New Jersey may 

ultimately decide, contrary to our prediction, that harassment by a 

nonsupervisory employee can constitute aiding and abetting, in which 

case we would of course follow its interpretation of state law. 

33. We note that the claims against the individual defendants are largely 

symbolic. Hurley's monetary recovery will come from the ACPD, and in 

practical terms the liability of the individual defendants is not that 

significant. 

 53