Full opinion text
IRENAS, District Judge: Following a sexual discrimination trial which lasted from November 27, 1995, through February 13,1996, and which resulted in a jury verdict finding liability against defendants Henry Madamba and the Atlantic City Police Department (“ACPD”), defendants move for a new trial based on insufficiency of the evidence and alleged errors in evidentiary rulings, legal decisions, and the jury charge. In the alternative, defendants seek remittitur of the $575,000 in compensatory damages awarded against Madamba and the ACPD and the $700,000 in punitive damages awarded against the ACPD. Because the findings of the jury were supported by substantial evidence and the trial was not infected by prejudicial error, defendants’ motions for a new trial will be denied. Their motions for remittitur will be granted with respect to the compensatory damages, which shall be remitted from $575,000 to $175,000, but denied as to punitive damages. Defendants Rifice and Mooney, as well as plaintiff, move for counsel fees as prevailing parties under the relevant fee-shifting statutes. Both defendants’ fee petitions will be denied because plaintiffs suit against them was not baseless, but plaintiffs application will be granted, subject to its submission to the Court, within three weeks of the date of this opinion, of revised timesheets which exclude hours spent in pursuit of unsuccessful claims and parties. I. INTRODUCTION At the heart of Donna Hurley’s case is the claim that she faced a hostile work environment. Unlike other forms of sexual discrimination, employer liability for a hostile work environment is created not by the random crude acts of employees, but rather by the employer’s reaction or non-reaction to these acts. As women increasingly enter workplaces historically reserved for men, particularly those which value traditionally “male” virtues such as physical strength and courage, it is not surprising that some male employees will by word or deed display their displeasure at this female “intrusion.” An employer cannot sit back and adopt a “boys will be boys” attitude when this happens; it must move promptly and forcibly to make it clear to the entire workforce that conduct which demeans women or makes them feel unwelcome will not be tolerated. The jury’s verdict in this case suggests that the ACPD did not understand its obligation to its female employees. At trial, defendant Henry Madamba referred to the bulk of the harassment Donna Hurley faced as “childish stuff,” and his attorneys continue to insist that although the conduct to which Donna Hurley was exposed during her career at the ACPD “was childish, it was not egregious.” This characterization exemplifies the attitude Donna Hurley faced from the day she joined the ACPD. The ACPD leadership ignored the misogyny that pervaded her working environment, underestimated its hurtfulness, and failed to take appropriate remedial action. The ACPD’s apathetic attitude was apparent even at trial. The ACPD referred extensively to its written anti-harassment policies, which were developed, for the most part, after the events at issue in the case. But written policies do not change behavior; actions do. The ACPD is a disciplined, hierarchical organization with the authority to enforce its policies. Unfortunately, it appears to have drafted the policies primarily in order to hide behind them, not. to change behavior. The ACPD pointed out repeatedly during trial that every time Hurley complained of bathroom graffiti, the ACPD painted over the wall. Yet it concedes that it never conducted an investigation into the harassment. (Tr. 152.) It never punished anyone. (Tr. 262.) It never even asked the patrol officers, as a group, to stop. And the pace at which the ACPD painted over the graffiti was measured in weeks or months rather than, as it should have been, in minutes. Indeed, throughout the trial the ACPD’s attorney, by his questions to witnesses, repeatedly suggested that sexual graffiti was not even an issue of sexual harassment, but merely a matter of defacing public property. The ACPD argues that it could never have caught the culprits behind the drawings. Whether true or not, this misses the point. Until 1992, when technology improved, the ACPD could not catch the malefactors (Tr. 3182) who engaged in the ubiquitous practice of using their hand-held radios to disconnect the radio conversations of their colleagues and supervisors, known as “keying out” or “clicking out.” But this did not prevent the ACPD from trying, especially when senior supervisors were affected. Unlike lewd drawings and vile comments, which Madamba viewed merely as “prankish,” (Tr. 4332), “clicking out” was a practice that really “pissed off” Madamba. (Tr. 4255). He and others took strong action to stop it. (Tr. 4255.) ACPD senior officers conducted investigations (Tr. 4255), wrote reports (Tr. 4497), and threatened at roll call to discipline anyone caught doing it (Tr. 612, 647-648). The ACPD’s reaction to “clicking out” thus stands in sharp contrast to its apathy in the face of overwhelming evidence that Donna Hurley was the victim of sexual harassment. II. THE MOTIONS BEFORE THE COURT Defendant ACPD moves for a new trial or remittitur on the grounds that: (1) the Court’s admission of evidence of harassment directed towards other women was prejudicial error; (2) the Court’s admission of evidence that predated the statute of limitations was error; (3) the Court’s admission of remarks hostile to women that were made outside the presence of plaintiff or any other female officer was error; (4) the jury’s award of punitive damages against the ACPD was inherently inconsistent with its decision not to award punitive damages against Madam-ba; and (5) the Court’s jury charge was misleading. Defendant Madamba moves for a new trial or remittitur on the grounds that: (1) the evidence against him was insufficient to support a finding of liability; (2) the compensatory damage award was grossly excessive; (3) the Court erred in admitting evidence of incidents that occurred prior to the statutory period or outside the hearing of plaintiff; (4) Dr. Hoyme’s testimony constituted a surprise and prejudiced Madamba; and (5) the jury instructions were erroneous. Defendant John Mooney, who was dismissed from this case on summary judgment, moves for counsel fees. Defendant Nicholas V. Rifice, against whom the jury found no liability, also moves for counsel fees. Plaintiff moves for counsel fees, for a new trial against Rifice, and for a new trial on the issue of punitive damages only with respect to Madamba. All of the above motions will be denied, except that compensatory damages will be remitted by $400,000, and plaintiffs attorney will be awarded counsel fees in an appropriate amount. III. STANDARD OF REVIEW FOR NEW TRIAL The standard for granting a motion for a new trial pursuant to Fed.R.Civ.P. 59 is less demanding than that for a judgment as a matter of law under Fed.R.Civ.P. 50(a). Lightning Lube, Inc. v. Witco Corp., 802 F.Supp. 1180, 1185 (D.N.J.1992) (citing 9 Charles A. Wright & Arthur A. Miller, Federal Practice and Procedure § 2531, at 575 (1971)). Although a trial court has narrow discretion when ruling on a motion for judgment as a matter of law, a trial court ruling on a motion for a . new trial is vested with wide discretion. In ruling on a motion for a new trial, the trial court is permitted to consider the credibility of witnesses and to weigh the evidence. Where a motion for a new trial is based primarily on' the weight of the evidence, however, the trial court’s discretion is more limited. A court should grant such a motion “only if the record shows that the jury’s verdict resulted in a miscarriage of justice, or when the verdict, on the record, cries out to be overturned or shocks the conscience.” Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991). Because of the time-honored authority of the jury to render a verdict based on its collective wisdom, New Market Inv. Corp. v. Fireman’s Fund Ins. Co., 774 F.Supp. 909, 917 (E.D.Pa.1991), the trial court must exercise restraint to avoid usurping the jury’s primary function. Borbely. v. Nationwide Mutual Ins. Co., 547 F.Supp. 959, 980 (D.N.J.1981). The Court must proceed with caution because: [When a] trial judge grants a new trial on the ground that the verdict was against the weight of the evidence, the judge ... substitutes his own judgment of the facts and credibility of the witnesses for that of the jury.,.. Such an action effects a denigration of the jury system. Thus, close scrutiny is required in order to protect the litigant’s right to a jury trial. Lind v. Schenley Industries Inc., 278 F.2d 79, 90 (3d Cir.1960). Appellate deference to the trial judge’s decision is normally appropriate because it is the district court that was able to observe the witnesses and follow the trial in a way that an appellate court cannot replicate by reviewing a cold record. Id.; Roebuck v. Drexel University, 852 F.2d 715 (3d Cir.1988), citing Semper v. Santos, 845 F.2d 1233, 1237 n. 5 (3d Cir.1988). Although Fed.R.Civ.P. 59 does not enumerate the bases for a new trial, the following have been recognized as being among them: the verdict is against the clear weight of the evidence; damages are excessive; the trial was unfair; and substantial errors were made in the admission or rejection of evidence or the giving or refusing of instructions. Lightning Lube, 802 F.Supp. at 1186. IV. PROCEDURAL HISTORY On July 10, 1992, plaintiff 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 plaintiff had been harassed while on Charlie Platoon and retaliated against since then. However, an affidavit submitted in connection with the EEOC complaint alleged harassment by both Madamba and Mooney during plaintiff’s stay on Charlie Platoon. She also alleged that obscene drawings of her remained visible as late as March of 1992, and that her transfer to the Property & Evidence Unit and the denial of her three-percent pay raise were in retaliation for her complaints of sexual harassment. On January 20, 1993, before the EEOC had issued plaintiff a right-to-sue letter pursuant to 42 U.S.C. § 2000e-5(f)(l), plaintiff and her husband, Patrick Hurley, filed the complaint in Civ. No. 93-260, alleging a violation of 42 U.S.C. § 1983 and various common law contract, tort, and New Jersey statutory claims, including violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq (“NJLAD”), and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”). On October 12, 1993, the EEOC issued a determination on plaintiffs charge. The EEOC investigator found probable cause for violations of Title VII due to the sexual harassment of plaintiff while she was on Charlie Platoon, but no probable cause for retaliation in the transfer to the Property & Evidence Unit and the denial of the three-percent pay increase. On March 7, 1994, plaintiff and her husband filed the complaint in Civ. No. 94^1122. This complaint makes no factual allegations, but merely relies on the facts stated in No. 93-260 and alleges discrimination pursuant to 42 U.S.C. § 2000e-2 and retaliation pursuant to § 2000e-3(a). On April 11, 1994, the case was consolidated with Civ. No. 93-260. On September 24, 1994, plaintiff filed another complaint with the EEOC and the DCR, alleging that since June 10, 1994, she had been subject to retaliation as a result of her initial harassment charge. The events on which this charge were based were not the subject of this lawsuit. In April 1995, following enormously extensive discovery involving some 70 volumes of deposition testimony, including more than twenty days for depositions of plaintiff and her husband, each of the original defendants — Captain Henry Madamba, Captain John Mooney, Chief Nicholas Rifice, and the ACPD — moved for summary judgment. On August 4, 1995, we granted summary judgment in favor of defendant Mooney. All claims against Madamba and Rifice were dismissed with the exception of claims under the NJLAD. All claims against the ACPD were dismissed except for hostile work environment under Title VII, 42 U.S.C. § 1983, and the NJLAD. The liability portion of the trial was conducted in this case from November 27, 1995, through February 2, 1996. At the conclusion of the liability portion of the trial, the jury rendered a verdict against Madamba and the ACPD but found no liability against Rifice. They awarded $575,000 in compensatory damages and elected to award punitive damages against the ACPD but not against Madamba. On February 13, 1996, a punitive damage hearing was conducted before the jury, at the end of which the jury awarded plaintiff $700,000 in punitive damages. V. FACTUAL BACKGROUND Plaintiff Donna Hurley is an Atlantic City police officer. The ACPD presently has 428 officers, each of whom reports through a chain of command: Patrol Officer to Sergeant to Captain to Inspector to the Chief of Police. Hurley alleges that she was subjected to sexual harassment as early as her training in the Police Academy in the mid-1970s. She also alleges that in 1981, she was subject to harassment by then-Sergeant Walter Reay. Plaintiff alleges that for most of her career she was given lowly positions that offered no useful experience or potential for advancement. As a patrol officer, she was assigned to security desk duty (Tr. 2422), which consisted of signing civilians in and out of the department building, and fire watch (Tr. 2423), which consisted of watching one particular building for an outbreak of fire. Neither of these positions offered her the experience needed to advance. Ms. Hurley began her career at the ACPD in February of 1978, and was promoted to Sergeant in November of 1987. (Tr. 2427.) She became the first woman Sergeant at the ACPD. As a Sergeant, plaintiff alleges that, other than a three-week stint in the detective bureau (Tr. 2431), her assignments continued to be menial. From the detective bureau she was transferred to court liaison officer (Tr. 2438) and from there to the juvenile truancy task force (Tr. 2463-65), where her job was to keep statistics on juvenile truants and where, although a sergeant, she supervised no one. In late 1989 and early 1990, while plaintiff was assigned to the 8:00 a.m. to 4:00 p.m. shift, or the “Alpha Platoon,” plaintiff filled out a shift preference sheet indicating that she wished to remain on her current shift. However, on January 3, 1990, she was instead transferred to become desk sergeant of Charlie Platoon, the midnight to 8:00 a.m. shift. Plaintiff testified that Charlie Platoon was her last choice in shifts. Once transferred to Charlie Platoon, plaintiff came under the direct command of defendant Captain Henry Madamba. During her first week under Captain Madamba, he allegedly told her that “they” sent a woman to his unit to “break my balls” (Tr. 2750), and that he did “not expect [plaintiff] to be here on this shift very long.” He instructed plaintiff to request a hardship transfer due to her family obligations, but plaintiff refused, in part because she believed it might hurt her professionally. (Tr. 2752.) Plaintiff also claims that Sergeant Fair, who was transferred to Alpha Platoon, was given more favorable days off than she even though he had less seniority. (Tr. 2753.) Plaintiff alleges that she was harassed throughout her tour on Charlie Platoon. This included “keying out” of her radio transmissions, demeaning comments by Madamba during roll call, and exclusion from supervisors’ meetings attended by other sergeants. (Tr. 2780.) Furthermore, sexually explicit and demeaning drawings of and doggerel about plaintiff were carved into and drawn on the walls of the roll call room, the roll call bathroom, and the bathroom of the Masonic Temple, a building used by both ACPD employees and the public. (Tr. 2764.) A sanitary napkin with sergeant’s stripes was hung over the roll call podium used by plaintiff and stayed there for three days. (Tr. 2761.) Plaintiff also alleges that Madamba personally harassed her while she was on Charlie Platoon. In addition to insulting her at roll call and excluding her from sergeants’ meetings, he allegedly refused to take action against those who keyed out her radio transmissions and told plaintiff she was “too emotional” when she complained about the sanitary napkin in the roll call room. On September 14, 1990, Madamba sent a memorandum to then-inspector Rifice stating that plaintiff would often “tie in” sick days with her regular days off.. As a result, on September 17, 1990, then-Chief of Police Robert L. McDuffie sent plaintiff a memorandum requiring her to produce a doctor’s note every time she took sick leave. When plaintiff complained to Madamba that the harassment by Charlie Platoon was becoming too much for her, he allegedly replied that female employees in the private sector were protected from such harassment because they “sleep with their bosses.” When plaintiff then tried to change the topic of conversation and commented on Madam-ba’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.” (Tr. 2500.) Plaintiff interpreted this entire conversation as a solicitation by Madamba to have sex with plaintiff. Plaintiff also alleges that co-workers harassed her while she was on Charlie Platoon. At the time, John Mooney was also a sergeant on Charlie Platoon. During their time working together, Mooney allegedly made derogatory comments to plaintiff including a remark that he had heard she “liked them hard and stiff,” and that he did “real police work” unlike “those who push pencils and laid on their back.” On one occasion, when plaintiff was unable to locate her coffee mug, Mooney asked her if she wanted to drink out of his jock cup. Mooney also made a sexually implicit comment that she was “under the Captain’s desk.” Plaintiff further alleges that defendant Madamba was present when Mooney made many of these inappropriate comments but took no action against him. Following unsuccessful efforts by plaintiffs husband Patrick Hurley (who is also an ACPD officer) to intervene on plaintiffs behalf, plaintiff submitted a memorandum to Madamba, on November 1, 1990, outlining the harassment to which she had been subjected 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 an internal affairs investigation be conducted. None ever was. On November 8, 1990, plaintiff was transferred to the 8:00 a.m. to 4:00 p.m. shift, or Alpha Platoon, in the Property & Evidence Unit. Plaintiff had requested to stay on the midnight to 8:00 a.m. shift because she had adjusted her personal schedule to those hours. In addition, the Property & Evidence Unit is an isolated and undesirable assignment. She therefore alleges that this transfer was in retaliation for the claims of harassment in her memorandum of November 1, 1990. She further alleges that when she was transferred to the Property & Evidence Unit, she was denied a three-percent pay increase that ACPD officers routinely receive when transferred to plainclothes duty. On April 20, 1993, this increase was granted retroactively. Plaintiff alleges that the harassment continued after she left Charlie Platoon. For instance, the graffiti apparently remained on the walls after plaintiff’s transfer. Rifice, who had been promoted to Police Chief, testified that he heard complaints about the graffiti as late as March 1992, and Hurley’s husband took photographs of the graffiti in the summer of 1992. An EEOC investigation concluded that “as recent as one week prior to June 23, 1993, sexual graffiti continued to be evident in [plaintiffs] work area.” On June 13, 1992, while plaintiff was attending a police seminar, Mooney approached plaintiff and called her “the ass up from the Property Room” in front of two other sergeants. The final incident of alleged discrimination against plaintiff came in the spring and summer of 1994, and involved a complaint from ACPD officer Kelly Lee Thomas alleging harassment by plaintiff. Plaintiff had allegedly pulled Thomas’ hair because she was wearing it in a ponytail rather than up, as required by ACPD regulations. On May 22, 1994, defendant Mooney, then Captain of the Charlie Platoon, wrote a report suggesting that plaintiff receive counselling regarding this conduct. On July 8, 1994, plaintiff was counselled regarding this incident by Captain William McKnight. Captain McKnight told her about the harassment allegations by Officer Thomas and showed her Captain Mooney’s report, but refused to give her a copy. Plaintiff alleges that the entire incident was in retaliation for her previous harassment claims. Prior to October 18, 1991, the ACPD did not maintain a written sexual harassment policy. Before then, an officer who believed she was subject to sexual harassment could report the matter to the ACPD Internal Affairs Unit, the ACPD Affirmative Action Officer, her direct supervisor, or the Chief of Police pursuant to his “open door policy.” The officer could also file a grievance with the Police Benevolent Association. Plaintiff worked continuously until July 26, 1994, after which she went on an extended paid sick leave. Plaintiff alleges 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. Defendants have adduced testimony which suggests that Hurley faced emotional difficulties long before her assignment to Charlie Platoon in 1990, and that her current psychological difficulties stem from sources other than sexual harassment. VI. DISCUSSION A successful Title VII hostile work environment claim consists of five elements: (1) the plaintiff suffered intentional discrimination because of her membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected plaintiff; (4) the discrimination would have detrimentally affected a reasonable person in plaintiffs position; and (5) the existence of respondeat superior liability. West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir.1995) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990)). The conduct must be more than “merely offensive,” but need not be so severe as to cause “a tangible psychological injury.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 20-22, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). To establish a prima facie ease of retaliation under Title VII, plaintiff must show (1) that she engaged in protected activity, (2) that she was subjected to an adverse employment decision, and (3) that there was a causal relationship between the two. Fuchilla v. Prockop, 682 F.Supp. 247, 263 (D.N.J.1987). Retaliatory harassment, rather than an adverse employment decision, may also form the basis for a retaliation claim. Goldsmith v. E.I. Du Pont de Nemours & Co., 571 F.Supp. 235, 240 (D.Del.1983); 2 L. Larson, Employment Discrimination § 34.04 at 34-57 to -62 (2d ed. 1995). To state a claim for hostile work environment sexual harassment under the NJLAD, the plaintiff must show 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. Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 603, 626 A.2d 445 (1993) To prove quid pro quo sexual harassment, a plaintiff must prove that a supervisor engaged in conduct that conditioned tangible job benefits on submission to unwelcome sexual conduct, or penalized her for refusing to participate in such conduct. Model Jury Instructions: Employment Litigation, § 1.04(2)(a), p. 38, (American Bar Association 1994) (and cases cited therein); Devitt, Blackmar and Wolff, Federal Jury Practice and Instructions § 1.04.09(A) (1987 & Supp.1995) (and cases cited therein). A. Sufficiency of Evidence as to Madam-ba Madamba argues that the evidence presented at trial was insufficient to impose liability against him individually. The jury apparently disagreed, and we decline to overturn their verdict because we find that it was based on substantial evidence. The testimony at trial was adequate to support the jury’s finding of liability against Madamba on both the hostile work environment claim and, albeit to a lesser extent, on the quid pro quo claim. Upon Hurley’s assignment to Charlie Platoon, Madamba told Hurley that she, as a woman, had been sent there to “break my stones” (Tr. 2749), and that he did not expect her to last long. Testimony indicated that Madamba frequently made comments that were derogatory to women generally. (Tr. 881, 907.) On at least one occasion, he referred to Hurley as a “dumb cunt.” (Tr. 885.) When Hurley sought protection from him, her supervisor, against the harassment she believed she was experiencing, Madamba told her that women frequently sleep with their bosses in order to gain such protection. (Tr. 2499.) The jury could view this remark as conditioning the tangible job benefit of being free from harassment on having sex with Madamba. Madamba completely ignored the graffiti that was found not only in the bathroom but even in the roll call room. (Tr. 2489.) Once, after a new drawing had appeared in a restroom, Madamba rushed in to see the picture, saying that “I have got to see this.” He emerged from the bathroom and proclaimed laughingly to Hurley and several others, “it’s a really bad one.” (Tr. 2509.) In addition, Madamba asked plaintiff to submit a transfer request so she could be with her children. (Tr. 2481.) He suggested that women make bad police officers and ineffective supervisors, and always require backup. (Tr. 907, 2554-2555, 2810.) Testimony further indicated that Madamba undermined plaintiff in other ways that the jury could reasonably have concluded were related to plaintiffs sex, although they are not self-evidently so. See, Lehmann, 132 N.J. at 605, 626 A.2d 445 (“not all sexual harassment is sex-based on its face”). For example, testimony indicated that Madamba denied Hurley’s vacation requests (Tr. 189), gave her undesirable assignments (Tr. 117, 174), undercut her authority by treating her disparagingly, orally abused her at roll call, excluded her from important meetings, and attempted to transfer her. Such testimony, especially when considered in the aggregate, clearly provided evidence sufficient to support the jury’s finding Madamba liable for damages. B. Dr. Hoyme’s “Surprise” Testimony Madamba argues that the reference by plaintiffs psychological expert, Dr. Hoyme, 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 opportunity to counter. This issue is a red herring. It is a product primarily of discovery-based bickering between the lawyers, and secondarily of the institutional differences between lawyers, who demand unvarying precision, and psychiatrists, who confront the complex, variable, and ambiguous realm of human feeling. It has no bearing on the merits of this case and does not even come close to undermining the jury’s verdict. An early report by plaintiffs expert, Dr. Hoyme, was dated November 16, 1994. Defendants’ psychological expert, Dr. Toborow-sky, responded to Dr. Hoyme’s expert report. By way of rebuttal, Dr. Hoyme issued another report on February 20, 1995. On March 2, 1995, Magistrate Judge Kugler ordered that Dr. Hoyme’s February 20, 1995, report be barred as out of time. The magistrate judge’s decision was appealed to this Court at the summary judgment stage. We upheld the magistrate judge’s determination but ruled that we would allow plaintiff to renew the motion at trial, at which time we felt we would have a better sense of the significance of the testimony. Plaintiff therefore renewed the motion at trial. Because we were concerned that the magistrate judge’s sanctions against the plaintiff cut too close to the essential truth-seeking function of the Court, we overruled the magistrate judge’s decision to bar Dr. Hoyme’s report of February 20,1995. (Tr. 1706.) A new trial may be granted only if the expert’s courtroom testimony varied from his deposition testimony “in such a way as to surprise the [defendant] with unannounced, material changes,” Spurlock v. Lawson, 881 F.Supp. 436 (E.D.Ark.1995), which in turn lead to prejudicial surprise “inconsistent with substantial justice.” Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108, 111—12 (5th Cir.1982). The circumstances surrounding Dr. Hoyme’s testimony, although regrettable and unfortunate, do not even approach this standard. Defendants’ primary complaint is that Dr. Hoyme introduced at trial a novel “second diagnosis” in which he stated that Hurley suffered emotional harm, but not a traditional psychiatric disorder, as a result of the “psychological assault” she suffered in the workplace. (Tr. 1667). He testified that the defendants’ conduct constituted an “aggressive attack on her” and a kind of “sexual assault” which caused “severe pain” comparable to “physical touching.” (Tr. 1726-29.) Plaintiffs lawyer revisited this theme at closing. We hold that Dr. Hoyme’s testimony did not create prejudicial surprise, and that this case does not meet the standard for a new trial, for four reasons. First, notwithstanding Dr. Hoyme’s report of February 20,1995, his earlier report, dated November 16, 1994, hinted strongly at this “second diagnosis” when he wrote that, “[m]y diagnosis 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.” This statement, though terse, plainly expresses Dr. Hoyme’s belief that Hurley’s suffering was partly caused by the trauma of workplace harassment. Second, the defendants actually received the report of February 20, 1995, which clarified the issue, and were unquestionably aware of the appealability of the magistrate’s order. Third, defendant Madamba, the party presently raising the issue, actually cross-examined Hoyme on this very topic in a deposition on March 3, 1995. By this time Madamba had already received Hoyme’s report of February 20, 1995. At the deposition, plaintiffs attorney, Benjamin Folkman, informed Madamba’s attorney, Mark Falk, that plaintiff intended to appeal the magistrate’s decision to this Court. (Dep. at 78.) Falk responded that he would, therefore, question Dr. Hoyme concerning the barred report, and proceeded to attempt do so. (Dep. at 79.) Fourth, the “surprise” testimony, such as it was, took place on December 7, 1995. Defendants’ expert, Dr. Toborowsky, did not testify until January 24, 1996. (Tr. 4542.) Defendants thus had several weeks in which to prepare rebuttal testimony and, indeed, Dr. Toborowsky indicated on the stand that he had previously read both the deposition and courtroom testimony of Dr. Hoyme. (Tr. 4557.) Under these circumstances there was no surprise. Dr. Hoyme’s testimony as to “psychological assault” was a relatively insignificant component of the case. Although Madamba suggests that it was “inflammatory,” this jury was presented with evidence that was considerably more inflammatory than Dr. Hoyme’s mild-mannered testimony. Certainly the good Doctor’s “second diagnosis” was less inflammatory than the drawings and other materials which were introduced into evidence as the actual weapons of the psychological assault. Dr. Hoyme’s telling the jury that Hurley was psychologically assaulted by these materials did not provide them with anything they could not already see for themselves. C. Evidence Not Obviously Linked to Donna Hurley Defendants Madamba and ACPD contend that the Court erred in admitting into evidence: (1) sexual harassment directed at other women; (2) derogatory remarks about women made by men outside the presence of women; and (3) incidents that occurred prior to the period to which liability may attach under the statute of limitations. Because we chose to admit all of this evidence for similar reasons — primarily our firm belief that it was crucial to the jury’s evaluation of the work environment at the ACPD— we will address the different forms of evidence together. The Court permitted eight police officers to testify at trial regarding the extent and pervasiveness of hostility towards women in the ACPD. These officers testified that officers and patrolmen commonly referred to women as “cunts,” “broads,” “bitches,” “douche bags” and, as a group, “the crack troop.” At least one officer testified that inspectors and captains routinely referred to plaintiff as “the wacky cunt.” (Tr. 413, 602, 1039,1145, 442.) The Court also permitted four women who had been associated with the ACPD to testify regarding the harassment of women within the department. Deborah Rando, a police officer, testified that Sergeant John Mooney made several harassing and offensive comments to her, including referring to her as “no ass Rando.” (Tr. 931.) Rando testified that on one occasion, Mooney told her he would like to rub mayonnaise between her legs so it would look as if a man had ejaculated on her. (Tr. 934.) Martha Donovan, a municipal prosecutor for the City of Atlantic City, testified that Sergeant Edward Yard of the ACPD called her a “cunt” in front of 50 other people during a confrontation. (Tr. 831.) Finally, two payroll employees, Julia Cardy (Tr. 1166) and Lisa O’Keefe (Tr. 859), testified regarding incidents of harassment and retaliation by Sergeant Griggs and Captain McDonald of the ACPD. Madamba and the ACPD argue that this testimony should not have been admitted because the incidents occurred outside of plaintiffs awareness, and were therefore irrelevant to the jury’s evaluation of Donna Hurley’s work environment. Defendants also argue that the Court should not have permitted testimony about locker-room conversation between men in the absence of women. The ACPD points in particular to Captain Robert Flipping’s testimony that men referred to women as “cunts” and “crack troops.” (Tr. 404.) Similarly, Officer Munoz testified that women were referred to as “cunts, douche bags, things like that” outside their hearing. (Tr. 768.) Former officer William Hurley (Tr. 1064) and plaintiffs husband, Officer Patrick Hurley (Tr. 1377), offered similar testimony. Defendants contend as well that evidence of discrimination that took place prior to the beginning of the time period framed by the statute of limitations was improperly presented in this case. The time period for which liability attached in this ease ran from January 20, 1987, through January 20, 1993. We allowed testimony concerning several incidents that occurred prior to January 20, 1987, and in particular from the time period of 1978 to 1981. Testimony that plaintiffs supervisor, Sergeant Reay, made sexually offensive remarks in 1981 was admitted into evidence. (Tr. 1213.) We admitted testimony that a tampon (Tr. 1338, 2390) and a copy of Hustler magazine (Tr. 2389) were placed in plaintiffs squad car. We also admitted testimony that Hurley was referred to as “the cunt” as far back as 1981. (Tr. 2388.) Defendants argue that all of this evidence placed them in an impossible position in that they were unable to rebut the testimony because of its age and vagueness. We recognize that the distinction between evidence offered for the purpose of determining liability and evidence offered for its utility in helping the jury to understand the evidence offered for liability is not a simple one. It is not, however, any more complex than other legal issues juries routinely face, or than this jury faced, for example, with respect to the ACPD’s liability for the acts of its employees. Evidence of harassment of other women and of events prior to 1987 place plaintiff’s experience at the ACPD in context. It per-’ mits the jury to better understand the events that took place from January 20, 1987, through January 20,1993. And although we permitted the jury to hear a complete version of plaintiffs experience at the ACPD, we specifically instructed them that, ‘ “[y]ou are to consider whether each defendánt 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.” (Jury Charge, § 14.) The heart of this ease was the hostile work environment claim. It is a claim that is very hard for a jury to evaluate and even harder for a plaintiff to prove. It may depend a great deal, for example, on such things as nuance, motives, gestures, the way things are said, and workplace customs. 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. Plaintiffs treatment during the statutory period was unquestionably influenced by and related to her treatment throughout the course of her career at the ACPD. Plaintiffs 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. In a case involving racial discrimination, the Third Circuit held that evidence that anonymous note-writers had referred to plaintiff as a “nigger” was evidential: “the court may also consider as circumstantial evidence the atmosphere in which the company made its employment decisions. One could infer from employees’ remarks and the racially derogatory notes [plaintiff] received that management permitted an atmosphere of racial prejudice to infect the workplace.” Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir.1993). Similarly, in Morgan v. Hertz Corp, 542 F.Supp. 123 (W.D.Tenn.1981), the court admitted evidence of a “history of vulgar and indecent language tolerated by management and directed toward women employees.” The court held that such evidence was probative of workplace hostility. All of this evidence, while not forming a basis for liability, permitted the jury to more intelligently evaluate the evidence that did create liability. Barring the evidence would have provided the jury with an incomplete, fragmented picture of the ACPD and plaintiffs life there. It would be like expecting someone to understand a movie, but letting her watch only the final twenty minutes, and letting her hear only the dialogué between the two most significant characters. See Andrews, 895 F.2d at 1484 (analogizing to a play and holding that a hostile work environment analysis must concentrate on the “overall scenario” created by seemingly isolated and ambiguous incidents). By admitting the evidence but forbidding the jury to consider it as directly relating to liability, we were able to balance the interests of the plaintiff and the defendants. The jury was better able to understand and evaluate the events that transpired between January 20, 1987, and January 20, 1993, without the defendants being unfairly prejudiced. The testimony of other harassment victims tends to prove that plaintiffs experience was not isolated. It suggests that Hurley’s experience was not unique and her reaction not unwarranted. It also helps the jury to evaluate the likelihood that the ACPD knew what was taking place. The New Jersey Supreme Court has held that evidence of “harassment directed at other women was relevant to both the character of the work environment and its effects on the plaintiff.” Lehmann v. Toys 'R’ Us, Inc., 132 N.J. 587, 611, 626 A.2d 445 (1993). The court also stated that, “the plaintiff may use evidence that other women in the work place were sexually harassed. The plaintiffs work environment is affected not only by conduct directed at herself but also by the treatment of others.” Id. We agree as well with the court in Garvey v. Dickinson College, 763 F.Supp. 799 (M.D.Pa.1991), that such evidence is admissible, among other bases, under Fed.R.Evid. 404 to prove that a defendant harbors “discriminatory intent” towards a particular group. See, West v. Philadelphia Elec. Co, 45 F.3d 744, 757 (3d Cir.1995) (“evidence of harassment of others will support a finding of discriminatory intent with regard to a later incident”). We do not find that these incidents were too remote from the plaintiff and her work environment to be relevant, and we firmly believe that they helped to shed light on plaintiffs hostile work environment claims. Under Fed.R.Evid. 403, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” In this case, although the defendants were prejudiced by the admission of the disputed evidence, the prejudice was not unfair and did not substantially outweigh the probative value. Moreover, any possibility of unfair prejudice was corrected by the jury charge. Perhaps more important, the contested evidence was simply not very prejudicial in the context of this case. In a different ease, evidence that men spoke ill of women behind their backs, or that other women in the workplace were mistreated, or that the plaintiff was called a nasty name fifteen years ago might be viewed as sufficiently prejudicial to lend substance to a motion for a new trial. But in this case the prejudice was insignificant. This is a ease 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 (Tr. 2488); where, in addition to pervasive graffiti directed at plaintiff, a sanitary napkin bearing sergeant’s stripes dangled over the podium from which she spoke (Tr. 2761), and a dildo was affixed to a wall or ceiling nearby (Tr. 430, 1037); and where plaintiffs professionalism and performance were constantly undermined because the men on the force could not tolerate a woman among them. It is a ease where the plaintiffs supervisor responded to plaintiffs entreaties by insinuating that he might be able to help her if only she would sleep with him. Amid such evidence, the testimony the defendants now contest can hardly be viewed as unfairly prejudicial. Finally, defendant ACPD argues that the inclusion of this supposedly extraneous evidence was unfair because the Court’s prior rulings were misleading. In particular, the ACPD points to pages 5 and 16 of our slip opinion of August 4, 1996. Hurley v. Atlantic City Police Department, 1995 WL 854478 at *2, *6 (D.N.J.1995) (Irenas, J.). On both pages we made reference to our belief that plaintiffs claim centers on the events of 1990. We still believe that the most shocking examples of harassment took place on Charlie Platoon in 1990. Indeed, it is partly because the events of that time were so egregious that we do not believe the admission of earlier evidence carried any unfair prejudice in the trial. Our statements in the opinion were not, however, intended as an indication that the events of 1990 were all that would be admitted into evidence. Nor can our opinion reasonably be read to suggest as much. As the trial progressed the Court quite naturally gained a better understanding of the ease. We determined that the challenged testimony was important to helping the jury understand the events of 1990. For the defendants to have assumed, based on general background statements in our summary judgment opinion, that we were making a final decision as to admissibility at trial is truly an example of hearing what one wants to hear. The defendants had ample notice of this evidence from at least the time they deposed plaintiff. They had ample opportunity to cross-examine and to present counter-testimony from their own witnesses. There was no unfairness and no surprise. D. The Jury Charge 1. Hostile Work Environment Charge (Jury Charge § H(b)) Defendants Madamba and the ACPD argue that the jury charge was inaccurate and misleading for a number of reasons. To begin with, both defendants attack the structure and content of the hostile work environment charge set forth in § 14(b). Defendants argue that the charge strayed from the Lehmann standard by mixing Title VII law with NJLAD law. They also argue that we failed to instruct the jury as to precisely how each of the ten listed factors bore on the issue of sexual harassment. Although both accusations are partly true, those decisions were deliberately made and neither was error. The New Jersey courts have consistently recognized the influence of Title VII law in interpreting the NJLAD. The Lehmann court stated specifically that “in interpreting the LAD, New Jersey Courts have, and should continue to, use Title VII law as an interpretive tool.” 626 A.2d at 452. The Lehmann court itself recognized that sexual discrimination is a “constantly evolving field.” Informed in part by Title VII law, we chose to craft the hostile work environment charge in such a way as to deal with the specific elements of this case. The decision to import Title VII law was deliberate, not only because the ACPD faced Title VII liability, but also because the New Jersey Supreme Court has itself frequently imported Title VII concepts into the NJLAD. We were constantly aware, however, that Mad-amba and Rifiee faced only NJLAD liability. Rather than present two separate, but extremely similar, charges under the NJLAD and Title VII, we chose to merge the two into one charge that accurately expressed both Title VII and NJLAD law. There was no misstatement as to either Madamba or the ACPD. Certainly there was no prejudice. By combining the different areas of law, we were able to present a single, comprehensible, and cogent presentation of the law of hostile work environment as it relates to the facts of this ease. The root of the hostile work environment charge was a combination of the Lehmann instruction and of the hostile work environment charge presented in ABA Model Charges § 1.04(2)(b), p. 40. The resulting draft was subsequently modified by our analysis of the ease law and by the submissions and arguments of the parties. The four-prong Lehmann analysis is set forth verbatim on page 15 of the charge. On page 16, we instructed the jury that it “should consider the following factors,” and then listed ten of them. These were elements that were present in the case and which we felt the jury could properly evaluate under the law. The relevance of each of these ten factors to a hostile work environment claim is well-rooted in reason, common sense, and the case law. In the body of the hostile work environment charge, we elaborated on those elements which were crucial to the jury’s determination of liability, such as points (4), (5), (7), (9), and (10). The other factors we merely directed the jury to weigh as being properly considered in evaluating hostile work environment liability. The jury was instructed to “consider” the ten factors in helping them to decide whether the requisite elements of liability-which were set forth in plain language immediately above and below the “ten factors”-had been established. The only “factor” to which any defendant has objected specifically is factor (1), “plaintiffs reasonable expectation upon entering the workplace,” which the ACPD argues is “completely irrelevant” to the issue of liability. This factor had little bearing on the facts of this case or the outcome of the trial. Hurley's expectations were not much in evidence, and we do not think this “factor” played a significant role in this case or the jury’s deliberations. Moreover, the factor helps the ACPD more than it hurts them: the jury could reasonably read it as suggesting that Hurley should have realized the ACPD was a rough, macho, sexist place when she joined. Although we do not necessarily advocate such reasoning, it appears to be at the legal roots of the factor. See, e.g., Rabidue v. Osceola Refining Co., 584 F.Supp. 419, 430 (E.D.Mich.1984) after noting this factor the court wrote that, “in some work environments, humor and language are rough hewn and vulgar. Sexual jokes, sexual conversations and girlie magazines may abound. Title VII was not meant to — or can — change this.” See also Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir.1986). Factor (1) is properly considered under the law. Certainly it relates to the “reasonable woman” standard, which no one disputes is applicable to this case. In addition, it is a factor that has been explicitly cited in several Title VII cases. See, e.g., Rodgers v. Western-Southern Life Ins. Co, 12 F.3d 668, 674 (7th Cir.1993); Daniels v. Essex Group, 937 F.2d 1264, 1274 (7th Cir.1991); Rabidue, 805 F.2d at 620; Brooms v. Regal Tube, 881 F.2d 412, 418 (7th Cir.1989). The ACPD faced Title VII liability, of course, and we do not believe that it was inappropriate for the jury to have considered factor (1) under the NJLAD. Madamba argues that our instruction, in factor (10), that the jury should consider “whether the complained of conduct was directed at men and women alike” was erroneous because we should have instructed the jury that “the law compels them to find that no hostile work environment exists if the complained-of conduct was directed at men and women alike.” We did. In section 14(b) of the jury charge, on page 15, the jury was instructed that “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: (i) would not have occurred but for the employee’s gender_” We further emphasized the point on the next page: “It is not enough that the work environment was generally harsh, unfriendly, unpleasant, crude or vulgar to all employees of both sexes. In order to find 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.” Again, the jury was to consider the ten factors in light of the elements of liability set forth in the surrounding text. The requirement that the complained-of conduct be a direct result of the plaintiffs gender, and not something that took place irrespective of gender, was perfectly plain. Madamba further argues that we “gave undue weight and extended discussion to the ‘reasonable woman’ standard and bare mention of the requirement that the conduct must be gender-based” and that we should have discussed each element “with equal force.” Madamba Brf. at 48. Madamba is correct that we explained the “reasonable woman” standard at greater length than the requirement that the conduct must be gender-based. The “reasonable woman” standard is significantly more complicated than the requirement that the conduct must be gender-based, and more removed from a lay person’s understanding and experience. It demanded more explanation. Both were explained adequately, and we are aware of no requirement that the many different ideas expressed in a jury charge must be set forth in the same number of words. 2. Structure of the Discrimination Charge (§ W Madamba argues that it was error for the jury charge to present four separate bases of liability — intentional sexual discrimination, hostile work environment, quid pro quo, and retaliation — by which to judge “precisely the same enigmatic conduct.” Madamba Brf. at 47. He asserts that this structure gave the jury and the plaintiff “four bites of the apple” and that it “implied that defendant’s conduct was wrong and it was just a question of what category it fell into.” Id. This argument is meritless. There is a good deal of overlap conceptually among these four categories, and the same conduct can support liability under more than one of the theories. For example, Mad-amba’s alleged sexual solicitation of Donna Hurley, if true, could easily fall under both hostile work environment and quid pro quo discrimination on the basis of sex. Although the heart of plaintiffs claim was unquestionably hostile work environment, we believe there was sufficient evidence presented at trial to warrant instructing the jury on each of the four theories. A finding that a defendant had engaged in any one of them was sufficient to create liability. We simply presented the different legal theories to the jury so that it could apply the law to the facts introduced in evidence. Nowhere did we imply that any defendant was implicated under any theory. Indeed, section 15 of the charge, which immediately followed the sexual discrimination charge, was devoted entirely to addressing the concerns expressed in Madamba’s brief. 3. Individual Liability (§ 17) Madamba also criticizes the Court’s individual liability charge set forth in section 17. In response to a question from the jury, the Court presented an “Amended Version” of section 17 which defined the terms “aid” and “abet” and which was provided to the jury for their perusal during deliberations. The scope of individual liability under the NJLAD has not yet been clearly established. No New Jersey court has resolved the issue. In Tyson v. CIGNA, 918 F.Supp. 836 (D.N.J.1996) (Irenas, J.), this Court expanded on its view of personal liability under the NJLAD. We will not resurvey the legal territory here, but instead refer the reader to Tyson for a detailed presentation of our understanding of individual liability under the NJLAD. Briefly, we held in Tyson that the NJLAD “imposes liability on supervisory employees only to the extent that the supervisory employee affirmatively engages in discriminatory conduct while acting in the scope of employment. A supervisory employee’s omissions, acquiescence, passivity or other failure to act will not support a claim under the NJLAD.” Id. at 837. Madamba’s primary concern with section 17 is the “aid and abet” language, which he believes may have led the jury to impose liability wrongfully as a result of his failure to respond to harassment by other men in Charlie Platoon. We note, first, that the charge stated explicitly that “individual defendants may be held liable only for their individual, affirmative wrongful acts.” Mad-amba believes that we should have stopped right there, and cites in support Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir.1990). The addition of “aid and abet” at the end of section 17 is not inconsistent with our prior directive that “affirmative conduct” is required. When the two are read in conjunction, as they must be, the charge states that a supervisor may be held liable for affirmative, wrongful conduct which aids or abets another’s discriminatory conduct. This is, in our view an accurate statement of the law. New Jersey law on the subject of individual liability under the NJLAD is unsettled. At the time the charge was given, the Third Circuit had not yet issued its opinion in Sheridan v. E.I. duPont de Nemours & Co., 1996 WL 36283 at *13 (3d Cir.1996), rehearing en banc granted, judgment vacated, 74 F.3d 1459 (Feb. 28, 1996), which held that there is no individual liability under Title YII but which has since been withdrawn. To this day, the New Jersey courts have not addressed the topic. If and when they do, they may well, in spite of Tyson, attach literal weight to N.J.S.A. 10:5-12(e). We do not pretend to have made the final proclamation on the issue. Reasonable minds can and do differ as to the meaning of N.J.S.A. 10:5-12(e) and the degree of action or inaction required on the part of a supervisory employee in order to establish personal liability. In light of the uncertainty in this field, we do not believe that our charge, which presented N.J.S.A. 10:5-12(e) virtually verbatim, can be viewed as error. This is even more true when one moves beyond abstract legal theory to consider the evidence presented in this case. Substantial evidence indicated that Madamba personally participated in affirmative sexual harassment by using foul and abusive language towards plaintiff, misusing his position for sexual solicitation, and acting in seemingly neutral ways (e.g., unfavorable assignments, vacation denials, etc.) that had a negative effect on Hurley and which the jury could reasonably have found were based on her sex. To the extent that Madamba believes he may have been tarnished by his apparent inaction (e.g., with respect to the suspended sanitary napkin and the graffiti), we believe that the original charge was perfectly clear in requiring “individual, affirmative wrongful acts” and in stating that “inaction or delay in responding to the conduct of others” will not create liability. This point was made even more forcefully by the amended charge we presented to the jury in response to their question regarding the meaning of “aid and abet.” The amended charge was influenced by Baliko v. Stecker, 275 N.J.Super. 182, 645 A.2d 1218, 1223 (App.Div.1994) (using criminal law definition of “aid and abet” in a NJLAD sexual harassment ease). Section 17 (amended version) states clearly that a willful act is required: “In order to 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 help make the unlawful act succeed.” The amended charge thus comports with our holding in Tyson, which merely set forth the legal standard in a more thorough and scholarly manner. The original charge and the amended version make it perfectly clear that Madamba may not be held liable unless he intentionally involved himself in unlawful, sexually harassing conduct. We see no error. Finally, the jury’s decision to exonerate Rifiee suggests that the jury grasped section 17 perfectly. Unlike Madamba, Rifiee was implicated in this case almost solely because of his failure to act to help Hurley despite his awareness of her plight. If, as Madamba asserts, the jury found liability against Mad-amba because of his inaction — which would be in contradiction to our charge in both its original and amended versions-the jury would also presumably have found Rifice liable for his failure to act. That it did not do so indicates the jury’s understanding that inaction does not create liability, and its compliance with and understanding of our charge. 4. The ACPD’s Liability for the Acts of its Non-Swpervisory Employees (§ 16(b)) The ACPD argues that “Lehman [Lehmann] absolves an employer of liability when it takes reasonable steps to address the alleged sexual harassment,” and that we should have so charged the jury. In support of this legal argument, the ACPD cites, not Lehmann, but a Title VII case,