235 F.3d 713 (1st Cir. 2001)
JULIA M. O'ROURKE, Plaintiff, Appellee,v.CITY OF PROVIDENCE, Defendant, Appellant.
Nos. 99-2346, 00-1008.
United States Court of Appeals, For the First Circuit.
Heard Oct. 2, 2000.Decided January 8, 2001.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Ronald R. Lagueux, Chief U.S. District Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Kevin F. McHugh, Assistant City Solicitor, for appellant.
Gerald C. DeMaria, with whom James A. Ruggieri, Higgins,  Cavanagh & Cooney, and Patricia E. Andrews were on brief, for  appellee.
Before  Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.
LYNCH, Circuit Judge.


1
Two different juries have now  found the Providence Fire Department liable under Title VII to  one of its first women firefighters, Julia O'Rourke, for that  form of sex discrimination known as sexual harassment. O'Rourke asks us to reinstate the first verdict for $275,000. The City defends the trial court's decision to vacate that  verdict and order a new trial but complains that the second  verdict, for $200,000, based on evidence over a shorter period  of time, is unsound.


2
We conclude that the trial court erred when it  vacated the first verdict on the grounds that evidence from  before the charge period had been erroneously admitted.  The  evidence was properly admitted to prove a continuing violation  and it would have been error to exclude it.  We reinstate the  original verdict and remand for recalculation of the  attorneys' fees due plaintiff for the two trials.  In  particular, this opinion:


3
1) clarifies the continuing violation doctrine as to  serial violations;


4
2) discusses the interplay between that doctrine and  the law of sexual harassment;


5
3) applies recent Supreme Court case law in hostile  work environment cases as to the standard for  employer liability for (i) co-worker conduct and  (ii) supervisor conduct; and


6
4) analyzes whether the damages award based largely  on emotional distress and psychological harm is  excessive.

I.

7
We summarize the evidence at trial in the light most  favorable to O'Rourke.  See Andrade v. Jamestown Hous. Auth., 82  F.3d 1179, 1186 (1st Cir. 1996).1


8
Until 1990, no female firefighters had ever served in  the City of Providence Fire Department.  In January, 1992,  O'Rourke and six other women who had passed a written  examination were admitted to the City's firefighter six-month  training program, along with 77 male trainees.  O'Rourke was  hired under the City's newly implemented affirmative action  policy.


9
The structure of authority in the fire department  starts with the Commissioner of Public Safety, followed by the  Chief of the Department.  Next is an Assistant Chief of the  Department and a Deputy Assistant Chief, followed by several  Battalion Chiefs, Captains, and Lieutenants.  Each of the  fourteen stations (called "Engines") is headed by a captain, who  oversees the station's several groups, each of which is headed  by a lieutenant or by the station captain.  That is the overall  management command structure.  There were no women in the  command structure directly over O'Rourke at any time in  question.  Further, O'Rourke had no women co-workers in her  group when she was assigned to the various Engine companies. She was the first and the lone woman wherever she worked in the  Department.


10
In January of 1992, the Department Chief promulgated  a sexual harassment policy.  The policy prohibited firefighters  from keeping sexually explicit books and magazines, viewing  sexually explicit movies, or making sexual jokes at their  respective stations.  The superior officer at each station was  responsible for enforcing the policy, and they had been trained  to do so.  New firefighters were to be instructed during two  hours of sensitivity training, including a component on sexual  harassment, to be incorporated into the curriculum of their six-month training program.


11
O'Rourke underwent this six-month training program. During this period and often in the presence of supervisors,  overtly sexual behavior was directed toward O'Rourke.  For  example, during a class break, a male trainee, Ferro, passed  around a video camera playing scenes of Ferro having sex with  his girlfriend.  The instructor was in the classroom and did  nothing.  Ferro also discussed his sexual prowess, endurance,  penis size, and his sexual encounters during lunch breaks, just  outside the training facility. These incidents occurred in the  presence of officers.


12
O'Rourke expressed her disgust and discomfort directly  to Ferro, but Ferro was undeterred.  During a training exercise  in a pool and in the presence of an officer of the academy,  Ferro pointed to O'Rourke's breasts and commented that she was  "stacked."  Ferro constantly discussed sexual positions and oral  sex.  O'Rourke "just blocked them out."  While standing in line  for roll call, which was conducted by various academy officers,  Ferro, standing behind O'Rourke, would frequently expound his  opinion that women are pigs.


13
Ferro's behavior was not unique.  Another male trainee,  McDonald, snapped O'Rourke's bra, commented on her scent, and  asked O'Rourke if another female trainee, whom McDonald called  a "dyke," ever looked at O'Rourke while they were changing  clothes.  McDonald also asked O'Rourke, in the presence of  several other firefighters, if she was on birth control.  He  said he wanted to know so that they could all "bang" her at a  union party that night.  Common conversation was whether  firefighters had gotten "banged" over the weekend.  Some of  these incidents occurred in the presence of training academy  officers.  The commentary made O'Rourke so uncomfortable that  she began trying to camouflage her body by wearing oversized  shirts.  She did not complain to any of the officers because she  "didn't want to cause any waves" and "just wanted to get through  the academy."


14
After completing the training program, O'Rourke  accepted a temporary assignment in the office of the Fire  Department Chief, Chief Bertoncini.  She worked for Chief  Bertoncini from June to September, 1992, and after a brief  layoff, from November, 1992, until March, 1993.  She performed  administrative tasks under the instruction of two women who  worked directly for the Chief.  In O'Rourke's presence, the  Chief sat on the lap of his preferred secretary with his arm  around her shoulder, and referred to the other secretary (who  was not present) as a "stupid fat bitch" and commented on her  breast size.


15
During that time, McCollough, another firefighter  working near O'Rourke, blew in her ear, rubbed his cheek against  hers, and stood over her with their bodies squarely touching as  she made copies.  He also asked her out on dates at least twelve  times, all of which O'Rourke declined.  O'Rourke did not  complain to Chief Bertoncini at the time for fear of being  labeled a whiner.


16
Also while at Chief Bertoncini's office, O'Rourke  encountered her former fellow trainee Ferro, who continued to  discuss his sexual encounters in front of her and urged O'Rourke  to "have" him, promising that if she did, she would never want  another man.  These comments often were made in the presence of  officers.  O'Rourke felt distinctly uncomfortable around Ferro.


17
Chief Johnson, the superintendent of the carpentry shop  located in the Fire Prevention Bureau, told O'Rourke that  McDonald (the one who had snapped O'Rourke's bra during  training) talked about her a lot and was crazy about her. O'Rourke made it clear to Chief Johnson that she was not  interested.


18
In March of 1993, O'Rourke was assigned to Engine 5,  Group B.  The Engine company consisted of four groups, each with  an officer in charge, one of whom also served as captain of the  house.  O'Rourke was the only female firefighter at Engine 5. The company living quarters consisted of a common bathroom,  kitchen, and sitting room; each firefighter had a private  bedroom.  A typical shift involved two days and two nights on,  four days off.  O'Rourke saw stacks of pornographic magazines in  the common sitting room and bathroom, which sometimes were open  to a page displaying pictures of naked men and women engaged in  sexual acts.  O'Rourke saw male firefighters reading the  magazines, which made her "very uncomfortable."  The officers  knew the magazines were there and did nothing.  This inaction  clearly violated the harassment policy.  O'Rourke, however, did  not complain.


19
In the summer of 1993, Lieutenant Young, who was acting  head of O'Rourke's group, suggested that the group take a patrol  ride through their district in a fire truck.  Lieutenant Young  offered the other firefighters beer, which O'Rourke declined. While they were driving through a part of the district that was  known as a popular hangout for men, Lieutenant Young wrote  O'Rourke's name and the station phone number on pieces of paper  and threw them out the window to the men on the street below. O'Rourke asked him to stop, but Lieutenant Young laughed and  continued.


20
In the fall of 1993, O'Rourke injured her hand and was  out for four or five months, but continued to go to the station  weekly to pick up her paycheck.  During one such visit, O'Rourke  encountered her commanding officer, Lieutenant Cionfolo. Lieutenant Cionfolo asked O'Rourke how she met her boyfriend. Then, referring to one of the women in Chief Bertoncini's  office, he told O'Rourke "you're just a virgin and [the woman]  lies flat on her back."


21
Also during this time, a chief officer told O'Rourke's  brother Coley, also a City of Providence firefighter, to warn  her that there was a closed circuit television hidden in her  bedroom at Engine 5.  O'Rourke, scheduled to return to work the  next week, called her commanding officer, Lieutenant Cionfolo,  and asked him to investigate the rumor.  She asked him not to  tell anyone or "make a big thing out of it if it was just a  rumor."  Lieutenant Cionfolo arranged for O'Rourke to meet him  at the station the next day to investigate and he promised not  to tell anyone.  When she arrived, Lieutenant Cionfolo, in the  presence of two other firefighters in the group, told her "we  didn't find the video camera."  O'Rourke accompanied  Lieutenant  Cionfolo to her room, which was being used by a male firefighter  while O'Rourke was not there.  She noticed a poster of a semi-nude woman on the wall; when she objected to Lieutenant  Cionfolo, he removed it.  O'Rourke was unsure whether there was  a camera in her room, especially since a chief officer had  warned her.  She wore pants to bed, had difficulty falling  asleep, and was afraid to change in her room because she felt  "like I was being invaded of my privacy when I was in that  room."


22
Shortly after returning to work, while at another  station, O'Rourke was sitting with several male firefighters. The men were in regular uniform but without their outer jackets  on, which were to be worn outside.  O'Rourke's jacket was on the  back of her chair.  Station Chief Costa entered the room and  asked O'Rourke if the jacket was hers, then told her "you put  that jacket on and you keep it on."  None of the male firefighters were told to wear their outer jackets.


23
Another firefighter at Engine 5, Isom, left a note on  O'Rourke's bed asking her out on a date.  O'Rourke discovered it  upon returning from a call at 2:00 A.M.  O'Rourke was concerned  that Isom had been in her room late at night while she wasn't  there.  She took the note to the officer in charge, Lieutenant  Dunne, and asked him to talk to Isom about it and tell him that  she was not interested in dating him.  Dunne spoke to Isom, but,  a few days later, Isom verbally asked O'Rourke on a date. O'Rourke declined and again spoke to Dunne, who told her he  would take care of it.


24
After the incident, O'Rourke avoided Isom; she was  plagued by worries that she might "have to work with him  somewhere else at another station in a dormitory where he might  be sleeping next to me."  In general, O'Rourke "felt awkward all  the time" to be working with men whom she knew wanted to go out  with her:


25
I tried to be nice to them as much as  possible.  They're my co-workers, but also  in the back of my mind is that I also have  to go to a fire with them, and I'm  inexperienced, and I want to know that these  people . . . are not going to stand there  and let me fall flat on my face.


26
O'Rourke started becoming anxious when she had to go to work and  had trouble sleeping when she was at the station overnight.


27
O'Rourke once had an accident backing the fire truck  into the station; she hit the wall of the station and damaged a  ladder.  Department procedure required drivers to have spotters  while backing into the station, but none were available at the  time.  When Chief Costa investigated, he was told that there had  not been spotters available.  He told O'Rourke that she was  going to have to "take the heat for this" and say that there  were spotters present, an untruth.  O'Rourke complied.  After a  hearing before the accident review board, O'Rourke was put on  probation for six months.


28
In April, 1994, O'Rourke fought her first major fire. That event would ultimately lead to her transfer to Engine 13,  a different station.  Some standard procedures were not followed  during the fire:  Lieutenant Cionfolo did not give O'Rourke  instructions or follow protocol in engaging Engine 5's line,  which he handed to a member of a different fire company instead  of O'Rourke; O'Rourke left the fire floor to get a new air tank  after hers ran out, and she assisted a rescue company with a  fire victim before returning to her position on the fire floor. O'Rourke left her position on the line after an alarm went off  indicating that she had only 5 minutes remaining in her air  pack.  On her way to get a new pack, she encountered Chief  Costa, the district battalion chief in charge of her station, in  the stairwell.  Chief Costa ordered O'Rourke to "get the fuck  back up those stairs."  O'Rourke obeyed the order, but  ultimately ran out of air and returned to Engine 5 to retrieve  a new tank.  After the fire was out, Chief Costa walked past  O'Rourke and asked, "Why did you leave your company?" but did  not give O'Rourke a chance to respond.  O'Rourke had seen many  mistakes by others at the fire and felt singled out by Chief  Costa's comment.  She told Lieutenant Cionfolo about the  incident, who told her not to worry about it.


29
Four days after the fire, Lieutenant Cionfolo informed  O'Rourke that she was to attend a meeting with him, Chief Costa,  and Dave Curry, a union representative, to discuss her  performance at the fire.  No other firefighters in O'Rourke's  group were required to attend similar meetings, and Lieutenant  Cionfolo told her that she was the "biggest problem" at the  fire.  Chief Costa asked O'Rourke to account for her actions  during the fire.  When O'Rourke described the incident where  Chief Costa had ordered her back upstairs after her air tank  alarm went off, Costa interrupted her, saying repeatedly, "I didn't tell you to get back up those stairs.  I told you to get  the fuck back up those stairs."  Chief Costa said to O'Rourke,  "You know, I'm not doing this because you're a woman;" O'Rourke  responded, "You must have [a] problem with it because you keep  bringing it up that I'm a woman."  Chief Costa replied, "This is  how you get your reputation."  O'Rourke recounted the events of  the fire several times over the course of approximately two  hours; Chief Costa and Lieutenant Cionfolo told her that their  records did not match what she was telling them. When Chief  Costa asked O'Rourke why she did not have a line, she told him  that Lieutenant Cionfolo had given it to a member of another  company, a violation of protocol.  They also confronted O'Rourke  about a rumor that she was seeking to transfer out of the  company and asked her if she wanted to go to fire prevention;  O'Rourke replied that she wanted to remain a firefighter and  that she "didn't come on this job to sit up in an office." Chief Costa ended the meeting by asking O'Rourke and Lieutenant  Cionfolo whether they could continue working together --  O'Rourke replied that she could, but Cionfolo did not reply. The union representative, Curry, opined that the problem was  just a personality conflict.  Chief Costa directed O'Rourke and  Lieutenant Cionfolo to meet to work things out, and to report  the results to him the next day.


30
The next day, O'Rourke met with Lieutenant Cionfolo. He accused her of having "sold him down the river" by telling  Chief Costa that he gave up his line at the fire.  He repeated  the rumor about O'Rourke wanting to transfer; O'Rourke admitted  that she was interested in going to a company that was more  committed to doing drills and maintaining preparedness. Lieutenant Cionfolo told her to get out of his station and that  she was off his group.  He took O'Rourke's gear off of the truck  and told her to report to a different station.  He called Chief  Costa in O'Rourke's presence and told him she was "rude,  disrespectful, and didn't know what the Christ [she] was doing." O'Rourke was summoned to another meeting with Chief Costa, where  she was asked to sign a transfer form on which Lieutenant  Cionfolo had written that they had "reached an impasse that will  affect our working together" and that it was "in the best  interest of the department and Engine Company 5" that O'Rourke  be transferred; O'Rourke did not agree to the transfer but  understood that she had no choice.


31
O'Rourke submitted a form to Department Chief  Bertoncini describing her version of the events during the fire  and requesting a meeting with him, but was told by Chief  Bertoncini's secretary that the chief would not respond.  When  O'Rourke met with the union vice-president, George Farrell, to  file a grievance with the union about her transfer, he  discouraged O'Rourke from filing a grievance, telling her "you  don't want to do that, do you," so she did not.  After a  temporary detail, she was transferred permanently to Engine 13.


32
O'Rourke arrived at Engine 13 on May 8, 1994, and met  with the officer in charge that day, Lieutenant Gonsalves, as  well as the other firefighters in her group, all male.2  At the  meeting, they asked O'Rourke whether she minded that they slept  in their underwear; the sleeping quarters at Engine 13 consisted  of one room of beds, without partitions.  O'Rourke did not  object.  The showers and bathrooms were not private.  O'Rourke  slept in her full uniform and did not use the showers. Lieutenant Gonsalves and other firefighters asked her about the  fire, stating that they heard she had "bailed out."  The captain  of the station, Captain Hiter, who also headed O'Rourke's group,  informed O'Rourke that she came to Engine 13 with a "black  cloud," a bad reputation because she had bailed out of the fire. Before O'Rourke arrived, Captain Hiter told her brother Vincent,  also a Providence firefighter, that the group was not happy  about her coming to work there, and that Captain Hiter himself  had a problem working with a woman.


33
O'Rourke asked Captain Hiter for a locker to store  personal belongings, including personal hygiene items.  He told  her none were available and that lockers were issued by  seniority; O'Rourke was the least senior in her group.  Others  in her group had lockers issued by the City.  O'Rourke brought  in her own.


34
On her first day, O'Rourke found pornographic magazines  in the drawers of the kitchen and sitting area.  She did not say  anything because "it was accepted . . . it was everywhere" and  because she "just got shacked out of Engine 5 to Engine 13" and  did not want to begin her stay at Engine 13 on a bad note.  On  about three occasions, O'Rourke witnessed the male firefighters  in her group watching pornographic movies in the common sitting  area.  O'Rourke had to pass through the area in order to access  the kitchen.  Captain Hiter knew that these materials were in  the station and that the City's sexual harassment policy  prohibited them, but did nothing.


35
Shortly after O'Rourke arrived, Lieutenant Gonsalves  told O'Rourke that he and the other firefighters in her group  were trying to find a way to have O'Rourke put on detail out of  Engine 13 on July 4 because they wanted to light off fireworks  and did not want O'Rourke there.  Lieutenant Gonsalves also told  O'Rourke, "We didn't take you over here lying down.  We don't  want you here.  You were just transferred over here."  Captain  Hiter confirmed that O'Rourke was to take a detail on July 4,  even though it was not her turn, because the male firefighters  wanted to celebrate together as a group.  O'Rourke was upset  because the group was supposed to make decisions collectively  about who took details, without the Captain's influence, and  because she was "supposed to be a part of that company now" but  was obviously unwanted.  Nonetheless, she did as she was  instructed.


36
On another occasion, returning from a call, O'Rourke  and her group passed Cheaters, a topless bar.  Lieutenant  Gonsalves, who was the officer in charge at the time, commented  that "our sister has a VIP pass to get us into Cheaters." O'Rourke was embarrassed but did not say anything because she  wanted to be "as nice as possible to these guys" and "want[ed]  them to accept me."


37
Within a month of her arrival at Engine 13, O'Rourke  and Captain Hiter began meeting to discuss various issues,  including complaints about O'Rourke by the other firefighters in  her group that O'Rourke was "trying to get away with things"  when Captain Hiter was not there.  Captain Hiter asked O'Rourke  about whether her locker was city property because other, more  senior firefighters in the company complained that she was not  entitled to a locker; it was later determined that the locker  was not city property, and O'Rourke was allowed to keep it.


38
By September, O'Rourke noticed that the male  firefighters frequently met behind closed doors in Captain  Hiter's office without inviting her in; these meetings occurred  daily, with or without Captain Hiter, but always excluding  O'Rourke.  O'Rourke asked Captain Hiter what was motivating the  exclusionary meetings and why they never talked as a group, but  Captain Hiter did not respond.


39
O'Rourke's ostracism intensified.  On one call, when  O'Rourke was driving, she asked Lieutenant Gonsalves for  directions, as she was new to the district and did not know her  way around; other firefighters routinely helped each other with  directions while driving.  Lieutenant Gonsalves responded, "I'm  not the fucking chauffeur, you are."  When O'Rourke approached  her colleagues after a fire, they all walked away from her.  One  of the chiefs from another station referred to O'Rourke as the  "Maytag man" because she was always alone.  If O'Rourke rode in  the back of the fire truck, the firefighters in the cab closed  the window so that she could not hear what was being said.  When  the group met after a fire to debrief, they ignored O'Rourke's  questions about her performance and rolled their eyes.


40
Other incidents contributed to the hostile environment. One firefighter kept pictures of nude women in his locker, which  O'Rourke saw; she described the effect of seeing those pictures:


41
I see these pictures of these women there,  and is this what they think of women?  Is  this how they're viewing me?  There was no  respect.


42
Another discussed oral sex and asked O'Rourke if she knew  whether a particular firefighter's girlfriend "swallowed deep." Male firefighters frequently referred to women as "cunts" or  "pussies."


43
O'Rourke's car was damaged, and she suspected it was  vandalized by one of her co-workers.  In addition, her locker  was glued shut.  Lieutenant Gonsalves and other firefighters in  her group frequently  referred to food O'Rourke was eating as  "lesbian food."


44
The ostracism took its toll on O'Rourke.  In addition  to gaining a significant amount of weight, she had difficulty  sleeping because she was "up all night agonizing about going to  work."  She became exhausted and was a "nervous wreck."


45
The atmosphere at Engine 13 continued to deteriorate. In September 1994, O'Rourke once again was assigned to a detail  when it was not her turn, as she had been on July 4.  When she  attempted to check the station's records to confirm whose turn  it was, Lieutenant Gonsalves simply repeated that she had to  take the detail.  Lieutenant Gonsalves made a comment to  O'Rourke's brother--in-law, DiSilva (another firefighter), that  O'Rourke "just got nothing but big tits."  Someone hung a poster  in the dormitory of a semi-nude woman in a provocative pose,  entitled "Miss Julie Stratton," but with the last name crossed  out so that it read "Miss Julie."  O'Rourke, whose first name is  Julia, understood this to be a reference to her.  O'Rourke's  brother Vincent removed the poster.  Vincent also found mail  taped to O'Rourke's locker that was addressed, "firefighter  Julia AWOL."


46
Also at that time, O'Rourke's brothers Vincent and  Coley  came to Engine 13 to confront the male firefighters about  their treatment of O'Rourke.  Coley had discussed his concerns  with Chief Johnson on several occasions, and Chief Johnson  finally suggested that Coley should go talk to the members of  Engine 13 and "try to straighten the situation out."  The  brothers had a heated exchange with Lieutenant Gonsalves and  Captain Hiter; as a result of that incident, O'Rourke's brothers  were disciplined.


47
After that, O'Rourke's brother-in-law DiSilva met with  Chief Cotter to discuss his concerns about the male  firefighters' treatment of O'Rourke in general and told Chief  Cotter about Lieutenant Gonsalves' comment that O'Rourke had  "nothing but big tits."  At Chief Cotter's request, DiSilva  submitted a written complaint to the Department Chief.  No one  from the Chief's office contacted DiSilva about his complaint.


48
On September 18, 1994, shortly after the incident  involving her brothers, O'Rourke decided to seek help from the  City's EEO officer, Gwen Andrade.  She did not follow the chain  of command by complaining to Captain Hiter because he knew what  was happening at Engine 13 but had done nothing about it. O'Rourke met with Andrade, along with a union representative,  Stephen Day, a union attorney (whose presence O'Rourke did not  request), and O'Rourke's brother-in-law Silva.  O'Rourke showed  them the altered poster but got no response.  They laughed when  O'Rourke told them about the "lesbian food" comments.  Union  representative Day told O'Rourke the meeting was limited to  discussing Engine 13 conduct only, although O'Rourke wanted to  discuss the earlier incidents.  EEO Officer Andrade did not ask  any questions during the meeting. Andrade concluded that  O'Rourke's complaints were related to "social issues," not "work  issues," and ended the meeting by telling O'Rourke to come up  with solutions.  O'Rourke then retained her own attorney.


49
After O'Rourke's meeting with Andrade, O'Rourke's group  continued to exclude her, spending time in Captain Hiter's  office with the door closed.  Because O'Rourke was excluded from  group discussions about upcoming drills, she would be the only  member of her group who was unprepared when it was time to  perform the drills.  During one such drill, one of the  firefighters screamed at O'Rourke in front of others for not  being prepared.


50
O'Rourke still attempted to discuss her concerns with  Captain Hiter, but he did nothing.  She began receiving crank  phone calls at home and at the station, with the caller whining  or making crude noises.  She was a "nervous wreck" while at work  and sometimes felt her body shake uncontrollably.  While  responding to a call, O'Rourke took a wrong turn and had an  accident while trying to turn around.  That incident was the  breaking point.  O'Rourke felt she was no longer able to  function and left work on injured-on-duty status in December,  1994.  She began seeing a psychiatrist, with whom she continues  treatment.  When O'Rourke went to the station to retrieve her  belongings, she discovered pornographic mail belonging to a  fellow firefighter had been placed in her locker.


51
In January of 1995, O'Rourke, with her attorney, met  with Chiefs Bennett and Cotter, as well as the city attorney, to  discuss O'Rourke's complaint.  The two chiefs were assigned to  investigate O'Rourke's allegations.  O'Rourke had prepared an  outline and discussed many of the incidents that had occurred at  both Engine 5 and Engine 13, and answered the chiefs' questions. She emphasized that she was eager to have the matter resolved  and return to work, and asked the chiefs to tell her if she was  doing something wrong.  At the end of the meeting, O'Rourke was  told that she would be contacted when their investigation was  completed.  The two chiefs scheduled no further meetings with  her.


52
Approximately one month after the meeting, O'Rourke  called Chief Bennett to discuss the status of the investigation. Chief Bennett told her that he was unable to proceed with the  investigation because "they're refusing to speak . . . there's  no use."  Chief Bennett also told O'Rourke that there was a gag  order put out prohibiting him from speaking to firefighters,  lieutenants, and captains -- anyone lower than a chief.  The new  chief of the Department, Chief DiMascolo, had told Bennett and  Cotter that the union did not want its members involved in the  investigation, and Chief DiMascolo declined to take any action  to encourage their participation.  Frustrated, Chief Bennett and  Chief Cotter withdrew from the investigation in February, 1995. Shortly thereafter O'Rourke filed her administrative charge of  discrimination.


53
O'Rourke remained out of work for over two years.  As  a result of the stress she experienced, O'Rourke gained a total  of 80 pounds.  She was anxious and afraid to leave the house,  and was particularly anxious about encountering Providence  firefighters.


54
O'Rourke returned to work at the fire department in  1997.  Following her psychiatrist's advice she no longer works  as a line firefighter but instead joined fire prevention, where  she remains today.

II.

55
On July 10, 1995, O'Rourke filed a discrimination  charge with the Rhode Island Commission of Human Rights and with  the U.S. Equal Employment Opportunity Commission and received  notice of right to sue.  O'Rourke also filed a federal court  complaint against the City on June 30, 1995, and an amended  complaint on July 17, 1995, also naming four firefighters as  individual defendants.3  The complaint included claims of  disparate impact and sex discrimination under Title VII and  Rhode Island law, as well as § 1983 claims.


56
A jury trial began July 14, 1997.  Defendants filed a  motion in limine to exclude all evidence of harassment occurring  before O'Rourke's tenure at Engine 13 on the grounds that those  acts were outside Title VII's 300-day limitations period and  that such evidence was unduly prejudicial and should be excluded  pursuant to Fed. R. Evid. 403.  O'Rourke invoked the continuing  violation doctrine, alleging that there were acts occurring  before and during the 300-day period, and arguing that the  evidence was not unduly prejudicial under Rule 403 but relevant  to proving that theory.  The court denied defendants' motion.


57
O'Rourke introduced evidence of harassment spanning the  entire duration of her employment at the fire department from  1992 to 1994 -- including her time spent in training in 1992,  the period in which she worked in the Chief's office later that  year, her year-long stay at Engine 5 in 1993, and finally, her  seven months at Engine 13 in 1994.  At the close of O'Rourke's  case, defendants moved for judgment as a matter of law.  The  court granted the motion as to the § 1983 counts against the  City and individual defendants on the ground that there was no  evidence that the City of Providence or the individual  defendants had intentionally discriminated against O'Rourke. O'Rourke does not appeal this decision.  The court also  dismissed O'Rourke's Title VII disparate impact claims as  duplicative of her hostile work environment sexual harassment  claim.  That reasoning is legally doubtful, but O'Rourke does  not appeal this decision either, and so, for purposes of this  opinion, we take the hostile work environment claims as  encompassing any disparate impact claims.


58
The court also ruled that "[t]he statute of limitation  clearly applies in this case, and limits the plaintiff's claims  to September 13, 1994, forward for sexual harassment."  When  O'Rourke argued that the earlier evidence was relevant to show  a continuing violation, the court responded: "I allowed that  evidence in to show a pattern, but it doesn't have anything to  do with the claim that took place at Engine 13.  The whole gist  of your case is what happened at Engine 13."  The court also  noted O'Rourke's failure to complain about her treatment before  September, 1994.  Counting back 300 days from when O'Rourke  filed her complaint with the EEOC on July 10, 1995, the court  found O'Rourke's claim was limited to the incidents occurring at  Engine 13 since September 13, 1994.  Because the state  limitations period was 360 days, and for the sake of simplicity,  the court decided that evidence from May, 1994 (the time  O'Rourke transferred to Engine 13) could be considered.  The  district court instructed the jury only to consider Engine 13  evidence and not to consider any of the evidence it had heard  about the two years prior to O'Rourke's Engine 13 tenure. Having been successful in its motion to exclude evidence for the  period before O'Rourke worked at Engine 13, the City was not  permitted to put on evidence in its case relating to pre-Engine  13 incidents.  The City had, of course, cross-examined  plaintiff's witnesses on this point.  The City made no offer of  proof.


59
The jury awarded O'Rourke $275,000 against the City on  her hostile work environment sexual harassment claim.  The City  moved for a new trial.  The district court granted the motion on  the ground that it had committed a prejudicial error of law by  allowing pre-Engine 13 evidence of sexual harassment, and  because it believed its curative instruction to the jury was  ineffective.  The $275,000 verdict was excessive, the court  thought, because that sum made it clear that the jury had  considered pre-Engine 13 evidence in awarding compensatory  damages, despite the court's contrary instruction.


60
O'Rourke's second trial began in April 1998.  The  district court limited the evidence to O'Rourke's tenure at  Engine 13, from May to December of 1994.  Once again, the jury  found in favor of O'Rourke, awarding her $200,000 against the  City on her hostile work environment claim.


61
The City again moved for a new trial, which the  district court denied.  O'Rourke sought an award of attorneys'  fees and costs for both trials.  The district court awarded  O'Rourke $99,685 in attorneys' fees and $10,214.50 in costs for  the second trial only; no costs were awarded for the first  trial.


62
The City appeals the district court's denial of its  motion for a new trial after the second trial, and O'Rourke  seeks on cross-appeal reinstatement of the first jury award, as  well as attorneys' fees and costs for the first trial.

III.

63
A.  O'Rourke's Cross-Appeal to Reinstate Original Verdict


64
We begin with O'Rourke's cross-appeal from the judgment  as a matter of law in favor of defendants at the close of  O'Rourke's evidence in the first trial and from the grant of a  new trial after the first jury verdict.  The district court's  power to grant a motion for a new trial is limited to those  circumstances in which allowing the verdict to stand would  result in a miscarriage of justice.  See Velazquez v. Figueroa-Gomez, 996 F.2d 425, 428 (1st Cir. 1993).  The appellate court's  review is for abuse of discretion.  But where, as here, the  court's order granting a new trial is based upon a legal  conclusion, we review that ruling de novo.  See Fleet Nat'l Bank v. Anchor Media Television, Inc., 45 F.3d 546, 552-53 (1st Cir.  1995) ("Because the court's order granting [defendants] a new  trial was based solely upon its legal conclusions that defective  claims had been allowed to go to the jury, we first determine  the correctness of the court's rulings in this regard.")


65
Defendants had filed a motion in limine to exclude all  evidence of events before the 300-day charge filing period,  arguing that such evidence was barred by the statute of  limitations and by Rule 403, Fed. R. Evid.  Granting this motion  would have meant no evidence could be introduced of the events  taking place before September 13, 1994, four months after  O'Rourke was assigned to Engine 13.


66
O'Rourke objected, arguing that the case came within  the continuing violation doctrine, an equitable exception to the  300-day filing period, because there was an ongoing pattern of  discrimination.  See Provencher v. CVS Pharmacy, 145 F.3d 5, 16  (1st Cir. 1998).  If the doctrine applied, it would have two  consequences: O'Rourke could introduce earlier evidence and she  could recover damages for earlier conduct.  There is a second  theory under which earlier evidence was arguably admissible --  namely, that even if the continuing violation doctrine did not  apply, the evidence was still relevant and probative as to  whether the later discrimination took place.  See United Air  Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).  "[S]ometimes  time-barred prior incidents become admissible as relevant  background evidence."  2 B. Lindemann & P. Grossman, Employment  Discrimination Law 1355 (3d ed. 1996); see also Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 439 (1st Cir. 1997). But the focus at trial was on  admissibility under the  continuing violation doctrine, and so we shall focus on it.


67
The district court denied the motion in limine, stating  that it could not make a decision on relevancy in a vacuum.  So  the pre-September 13, 1994 evidence was allowed in.  The City  objected to some of the evidence, but not to most of it.  Where  it made no objections, the City has waived any claim that the  evidence was inadmissible.  An unsuccessful motion in limine  does not preserve an evidentiary objection.  See Fusco v. General Motors Corp., 11 F.3d 259, 262 (1st Cir. 1993).  At the  end of the plaintiff's case, defendants moved for judgment,  again arguing that evidence of events before September 13, 1994  was inadmissible on statute of limitations and Rule 403 grounds. The plaintiff argued that the continuing violation exception to  the statute of limitations applied.  The City presented no  counter argument in reply and kept hammering a single theme, as  though the continuing violation doctrine did not exist.


68
After dismissing the individual defendants from the  case, leaving only the City, the district court held that the  pre-charge period evidence was admitted in error because the  statute of limitations barred the evidence.  Like the City, the  district court never explicitly addressed O'Rourke's invocation  of the continuing violation doctrine or why it would not apply. That omission was itself error.  Indeed, the only reason  expressed by the district court in support of its decision was  its feeling that O'Rourke had brought these events on herself, see infra note 4, and that therefore the events were irrelevant  to her discrimination claim.  Insofar as the court thought that  to be a reason for applying the statute of limitations, it  erred.  Indeed, the district court expressed its feeling that  plaintiff's case as to pre-Engine 13 events failed on its  merits, calling it "all eyewash."  Any determination of the  merits was for the jury, not the court.


69
These errors could prove to be harmless if O'Rourke was  in fact not entitled to use the continuing violation doctrine. We review de novo a judgment as a matter of law that the  continuing violation doctrine does not apply.  See Provencher,  145 F.3d at 13; Shultz v. Rhode Island Hosp. Trust Nat'l Bank,  N.A., 94 F.3d 721, 726 (1st Cir. 1996).  Unless there are no  material facts in dispute permitting resolution as a matter of  law as to whether a continuing violation occurred, it is a jury  issue.  We reverse a judge's determination "if we determine that  a reasonable jury could have found in [plaintiff's] favor." Provencher, 145 F.3d at 13.  We conclude that a reasonable jury  could have found that O'Rourke was a victim of a continuing  violation.  See Cambridge Plating Co., Inc. v. Napco, Inc., 85  F.3d 752, 762-63 (1st Cir. 1996) (whether discovery rule  exception applied); see also Martin v. Nannie and the Newborns,  Inc., 3 F.3d 1410, 1415-16 (10th Cir. 1993) (reversing grant of  summary judgment in sexual harassment case where jury could find  plaintiff made out continuing violation).


70
Before analyzing why a jury could find the continuing  violation doctrine applicable, there is an important definition  to be emphasized.  By its nature, a hostile work environment  often means that there are a series of events which mount over  time to create such a poisonous atmosphere as to violate the  law. In the leading Supreme Court cases, the evidence of  harassment covered a period of years.  Faragher v. City of Boca  Raton, 524 U.S. 775, 782 (1998) (five-year period); Harris v. Forklift Sys., Inc., 510 U.S. 17, 19 (1993) (two and a half  years); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 59-60  (1986) (four years).  And so there is a natural affinity between  the hostile work environment theory and the continuing violation  doctrine.  Thus, a court should not hastily dismiss on  timeliness grounds a harassment claim where a continuing  violation is alleged.  Yet the two theories are not the same and  not every hostile work environment claim presents a plausible  continuing violation.  Like the Third Circuit, "we decline to  adopt a per se rule that a properly alleged hostile work  environment claim also constitutes a continuing violation." West v. Philadelphia Elec. Co., 45 F.3d 744, 755(3d Cir. 1995).


71
We look at whether the defendant's conduct constitutes  harassment under Title VII, then determine whether a reasonable  jury could have found that there was a continuing violation of  Title VII, thus allowing O'Rourke to present evidence of acts  before the 300-day filing period.  A brief overview of Title VII  sexual harassment law is helpful.

A.  Hostile Work Environment

72
Title VII of the Civil Rights Act of 1964 prohibits an  employer from discriminating "against any individual with  respect to his compensation, terms, conditions, or privileges of  employment, because of such individual's race, color, religion,  sex, or national origin."  42 U.S.C. §2000e-2(a)(1) (West 2000). "[T]he very fact that the discriminatory conduct was so severe  or pervasive that it created a work environment abusive to  employees because of their race, gender, religion, or national  origin offends Title VII's broad rule of workplace equality." Harris, 510 U.S. at 22.  Courts have long recognized that sexual  harassment is "a form of gender discrimination prohibited by  Title VII."  Provencher, 145 F.3d at 13.


73
Title VII sexual harassment law has evolved  considerably from its early focus on quid pro quo sexual  harassment, where an employee or supervisor uses his or her  superior position to extract sexual favors from a subordinate  employee, and if denied those favors, retaliates by taking  action adversely affecting the subordinate's  employment.  See, e.g., Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 897 (1st  Cir. 1988) (collecting cases).  Title VII also allows a  plaintiff to prove unlawful discrimination by showing that "the  workplace is permeated with 'discriminatory intimidation,  ridicule, and insult' that is 'sufficiently severe or pervasive  to alter the conditions of the victim's employment and create an  abusive working environment.'" Harris, 510 U.S. at 21 (citations  omitted).  Further, Title VII protection is not limited to  "economic" or "tangible" discrimination.  Id.


74
The Supreme Court has outlined the tests a plaintiff  must meet to succeed in a hostile work environment claim: (1)  that she (or he) is a member of a protected class; (2) that she  was subjected to unwelcome sexual harassment; (3) that the  harassment was based upon sex; (4) that the harassment was  sufficiently severe or pervasive so as to alter the conditions  of plaintiff's employment and create an abusive work  environment; (5) that sexually objectionable conduct was both  objectively and subjectively offensive, such that a reasonable  person would find it hostile or abusive and the victim in fact  did perceive it to be so; and (6) that some basis for employer  liability has been established.  See Faragher, 524 U.S. at 787-89; Harris, 510 U.S. at 20-23; Meritor, 477 U.S. at 65-73.  It  is undisputed that O'Rourke is a member of a protected class and  that she considered defendants' conduct unwelcome; thus, the  first two elements of her claim are met.  The evidence is  compelling that she suffered harassment based on sex.  See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998)  ("Courts and juries have found the inference of discrimination  easy to draw in most male-female sexual harassment situations,  because the challenged conduct typically involves explicit or  implicit proposals of sexual activity . . .). We discuss  employer liability, the sixth element, a bit later.


75
In hostile environment cases, the fourth and fifth  elements are typically the most important.  They must be  determined by the fact-finder "in light of the record as a whole  and the totality of the circumstances."  Meritor, 477 U.S. at 69  (internal quotation marks and citations omitted).  Several  factors typically should be considered in making this  determination: "the frequency of the discriminatory conduct; its  severity; whether it is physically threatening or humiliating,  or a mere offensive utterance; and whether it unreasonably  interferes with an employee's work performance."  See Faragher,  524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).


76
As part of its evaluation, a jury may consider a broad  range of conduct that can contribute to the creation of a  hostile work environment.  Indeed, "harassing conduct need not  be motivated by sexual desire to support an inference of  discrimination on the basis of sex."  Oncale, 523 U.S. at 80. Evidence of sexual remarks, innuendoes, ridicule, and  intimidation may be sufficient to support a jury verdict for a  hostile work environment.  See White v. New Hampshire Dep't of  Corrections, 221 F.3d 254, 260-61 (1st Cir. 2000); cf.Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 54-56 (1st Cir.2000) (evidence of two  specific incidents of harassment in the context of an ongoing  pattern of conduct sufficient to survive summary judgment in  hostile work environment claim).  The accumulated effect of  incidents of humiliating, offensive comments directed at women  and work-sabotaging pranks, taken together, can constitute a  hostile work environment.  Williams v. General Motors Corp., 187  F.3d 553, 563-64 (6th Cir. 1999).


77
Still, conduct that results from "genuine but innocuous  differences in the ways men and women routinely interact with  members of the same sex and of the opposite sex" does not  violate Title VII.  Oncale, 523 U.S. at 81.  Thus, "offhand  comments, and isolated incidents" are not sufficient to create  actionable harassment; the hostile work environment standard  must be kept "sufficiently demanding to ensure that Title VII  does not become a 'general civility code.'" Faragher, 524 U.S.  at 788 (quoting Oncale, 523 U.S. at 81).


78
Certain comments by the district court4 lead us to  emphasize two other controlling principles.  First, sex-based  harassment that is not overtly sexual is nonetheless actionable  under Title VII, so evidence of that sort may be admissible. "Alleged conduct that is not explicitly racial in nature may, in  appropriate circumstances, be considered along with more overtly  discriminatory conduct in assessing a Title VII harassment  claim."  Landrau-Romero v. Banco Popular de Puerto Rico, 212  F.3d 607, 614 (1st Cir. 2000), (citing DeGrace v. Rumsfeld, 614  F.2d 796, 800 (1st Cir. 1980) (evidence of equipment sabotage  and co-workers' "silent treatment" considered along with  racially explicit notes)).  That reasoning applies equally to  sexual harassment: where a plaintiff endures harassing conduct,  although not explicitly sexual in nature, which undermines her  ability to succeed at her job, those acts should be considered  along with overtly sexually abusive conduct in assessing a  hostile work environment claim.  See Lipsett, 864 F.2d at 905  (conduct that was not explicitly sexual was "nonetheless charged  with anti-female animus, and therefore could be found to have  contributed significantly to the hostile environment").  As the  Eleventh Circuit observed,


79
Sexual harassment which creates a hostile or  offensive environment for members of one sex  is every bit the arbitrary barrier to sexual  equality at the workplace that racial  harassment is to racial equality.  Surely, a  requirement that a man or woman run a  gauntlet of sexual abuse in return for the  privilege of being allowed to work and make  a living can be as demeaning and  disconcerting as the harshest of racial  epithets."


80
Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982).


81
The second principle follows.  Courts should avoid  disaggregating a hostile work environment claim, dividing  conduct into instances of sexually oriented conduct and  instances of unequal treatment, then discounting the latter  category of conduct.  Such an approach defies the Meritor Court's directive to consider the totality of circumstances in  each case and "rob[s] the incidents of their cumulative effect." Williams, 187 F.3d at 561.  Moreover, such an approach not only  ignores the reality that incidents of  nonsexual conduct -- such  as work sabotage, exclusion, denial of support, and humiliation  --- can in context contribute to a hostile work environment, it  also nullifies the harassing nature of that conduct.5  An  employer might escape liability, even if it knew about certain  conduct, if that conduct is isolated from a larger pattern of  acts that, as a whole, would constitute an actionable hostile  work environment.  Thus, employers would lack the incentive to  correct behavior that, like more overtly sexual forms of  harassment, works against integrating women into the workforce. See Burlington Indus. v. Ellerth, 524 U.S. 742, 764 (1998)  (citing Title VII's basic policy of "encouraging forethought by  employers"); cf. Williams, 187 F.3d at 563 (recognizing as  harassment conduct that is not overtly sexual "go[es] to the  core of [plaintiff's] entitlement to a workplace free of  discriminatory animus").


82
Statute of limitations problems must be understood in  the context of substantive law.  The stage set, we turn to the  limitations issue.

B.  The Continuing Violation Doctrine

83
A plaintiff who brings a hostile work environment claim  under Title VII must file her claim within 300 days of an act of  discrimination, and in general cannot litigate claims based on  conduct falling outside of that period.  See Provencher, 145  F.3d at 13.  The limitations period serves to "protect[]  employers from the burden of defending claims arising from  employment decisions that are long past."  Thomas v. Eastman  Kodak Co., 183 F.3d 38, 47 (1st Cir. 1999) (quoting Delaware  State College v. Ricks, 449 U.S. 250, 256-57 (1980)).  But where  a Title VII violation is "of a continuing nature, the charge of  discrimination filed . . . may be timely as to all  discriminatory acts encompassed by the violation so long as the  charge is filed during the life of the violation or within the  statutory period."  Pilgrim v. Trustees of Tufts College, 118  F.3d 864, 868 (1st Cir. 1997) (quoting Kassaye v. Bryant  College, 999 F.2d 603, 606 (1st Cir. 1993)).  The continuing  violation doctrine is an equitable exception that allows an  employee to seek damages for otherwise time-barred allegations  if they are deemed part of an ongoing series of discriminatory  acts and there is "some violation within the statute of  limitations period that anchors the earlier claims." Provencher, 145 F.3d at 14.  This "ensures that these  plaintiffs' claims are not foreclosed merely because the  plaintiffs needed to see a pattern of repeated acts before they  realized that the individual acts were discriminatory."  Thomas,  183 F.3d at 54.


84
Before analyzing whether a jury could find the  continuing violation doctrine applicable, there are important  definitions of the problem to be emphasized.  This is not a  case, like Provencher, where the problem with application of the  doctrine was that there was no discriminatory act within the  charge filing period.  See  145 F.3d at 15-16.  The City made no  such claim and the district court found there were claimed  discriminatory acts in the Engine 13 era.  This is also not a  case of claimed continuing effects from earlier discriminatory  policies, as in United Airlines, Inc. v. Evans.  See 431 U.S. at  558.  Nor is this a case of a claimed systemic violation under  the continuing violation doctrine, where an employer maintains  a discriminatory policy that is responsible for multiple  discriminatory acts that may not fall within the statutory  period.  See Provencher, 145 F.3d at 14.  The question is  instead whether what O'Rourke claimed fell within the branch of  the continuing violation doctrine which courts have called  "serial violations."


85
This court has identified several criteria in  determining the sufficiency of a serial continuing violation  claim, which we summarize here:


86
1) is the subject matter of the discriminatory acts sufficiently  similar that there is a substantial relationship between the  otherwise untimely acts and the timely acts?  See Marcano-Rivera v. Pueblo Int'l, Inc., 232 F.3d 245, 256 (1st Cir. 2000); Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921  F.2d 396, 401 (1st Cir. 1990).


87
2) are the acts isolated and discrete or do they occur with frequency or repetitively or continuously?  See Provencher, 145  F.3d at 14.


88
3) are the acts of sufficient permanence that they should  trigger an awareness of the need to assert one's rights?  SeeJensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990); Sabree, 921  F.2d at 402.


89
Allowing for variations in language, this is  essentially the test first articulated by the Fifth Circuit in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d  971, 981 (5th Cir. 1983), and adopted in a majority of other  circuits: West v. Philadelphia Elec. Co., 45 F.3d 744, 755 & n.9  (3d Cir. 1995); Mascheroni v. Bd. of Regents of Univ. of Cal.,  28 F.3d 1554, 1561 (10th Cir. 1994); Selan v. Kiley, 969 F.2d  560, 565-66 (7th Cir. 1992); Bell v. Chesapeake & Ohio Ry. Co.,  929 F.2d 220, 223-25 (6th Cir. 1991); Roberts v. Gadsen Mem.  Hosp., 835 F.2d 793, 800 (11th Cir. 1988).6  Other circuits,  while not expressly adopting the Berry court's test, employ  similar standards to determine whether the continuing violation  doctrine applies.  See, e.g., Van Zant v. KLM Royal Dutch  Airlines, 80 F.3d 708, 713 (2d Cir. 1996) (instances of  discrimination must be "specific and related" and plaintiff must  be without notice of discriminatory nature of events when they  occur); Curry v. District of Columbia, 195 F.3d 654, 661 n.14  (D.C. Cir. 1999) (mentioning approaches taken by other circuits  but rejecting plaintiff's continuing violation claim because  conduct alleged not sufficiently similar).


90
The first two criteria are easily met on this record.  The only arguable issue is whether plaintiff produced sufficient  evidence on the third criterion, which goes to whether the  earlier acts were sufficient to put O'Rourke on notice that she had a substantial, actionable claim and should have complained  earlier.  This is not a case where there was a single act of  such permanence or import to act as a trigger.  See Sabree, 921  F.2d at 402 (late claim not excused where plaintiff "admitted  that he believed, at every turn, that he was being discriminated  against" and there was no substantial relationship between the  transfers complained of).  Rather, this case raises what may be  the most difficult question under the doctrine:  whether the  sheer volume and repetition of the harassment should, as a  matter of law, have led O'Rourke to file a discrimination claim  earlier.


91
It is here that the statute of limitations question  overlaps with the substantive law of hostile work environment. It would be anomalous to say that, for statute of limitations  purposes, a plaintiff should be on notice that she has a  discrimination claim where the substantive law says she does not  have such a claim yet.  Here, the relevant law makes clear that  often a sexual harassment claim will not accrue until after a  period of recurring acts of harassment.  A plaintiff usually  will not have a viable claim of hostile work environment from  single acts that are isolated or sporadic or not themselves  severe enough to alter the work environment and create an  abusive work environment -- both from an objective and  subjective viewpoint.  Or they may not of themselves appear to  be discriminatory.  But the recurrence of events that do not of  themselves appear to be discriminatory may, over time, come to  demonstrate both an increasingly difficult environment and that  the events lack an innocent explanation.  A plaintiff may be  "unable to appreciate that he is being discriminated against  until he has lived through a series of acts and is thereby able  to perceive the overall discriminatory pattern."  Sabree, 921  F.2d at 402.  As the Seventh Circuit has said,


92
Sexual harassment serious enough to  constitute unlawful discrimination on  grounds of sex is often a cumulative process  rather than a one time event. In its early  stages it may not be diagnosable as sex  discrimination, or may not cross the  threshold that separates the nonactionable  from the actionable, or may not cause  sufficient distress to be worth making a  federal case out of, or may not have gone on  long enough to charge the employer with  knowledge and a negligent failure to take  effective remedial measures.


93
Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164,  1166 (7th Cir. 1996) (citations omitted).  While sometimes these  issues may be resolved as a matter of law, they are often better  resolved by juries, with jurors reflecting the lessons from  their own life's experiences.


94
Here, it cannot be said as a matter of law that  O'Rourke was on notice that she had to file an EEOC claim before  September 13, 1994.  O'Rourke's own actions show that in the  course of September of 1994, things started to reach a breaking  point for her: her health was deteriorating and her brothers'  efforts to intervene at the station to protect her had failed. One could reasonably infer that she had not realized there was  actionable discrimination until this point.  And once O'Rourke  was on notice of the harassment, she brought the matter to the  City's attention.  She sought the assistance of the City's EEO  officer.  When the EEO officer did nothing, O'Rourke turned to  Captain Hiter; when he did nothing, she turned to Chiefs Bennett  and Cotter.  When the Department, under pressure from the Union,  frustrated the investigation by prohibiting Bennett and Cotter  from talking to anyone below the level of Chief, it became clear  that there would be no recourse for O'Rourke short of filing an  EEOC complaint.  And she did so promptly.  A reasonable jury  could easily have found that this case fit within the continuing  violation doctrine.  And because the evidence was necessary to  prove a continuing violation, it was error to exclude it under  Rule 403.


95
The probative value far outweighed any prejudice.


96
As a result, there was no error in the district court's  original decision to admit the pre-Engine 13 evidence and there  was error in its later decision to instruct the jury not to  consider the evidence.  Because the grant of the new trial was  based on the later erroneous decision, the order granting the  new trial on that basis was in error.  What to do about that  error requires further analysis.  We pause, though, to consider  whether the new trial order may be affirmed on the judge's  alternate ground.

Other Grounds

97
While not entirely clear, it appears that the trial  judge concluded from the size of the verdict, $275,000, that the  jury had not followed his instructions to disregard pre-May 1994  conduct, and that defendant had been prejudiced as a result and  that this amounted to a miscarriage of justice.


98
But this conclusion is flawed for two reasons.  First,  even if the jury did not follow their instructions, such error  was not prejudicial because, as we have ruled, the instructions  were erroneous:  the jury was entitled to consider the pre-May  1994 conduct of the defendant.  Second, there is no ground to  believe that the jury did in fact fail to follow their  instructions.  The law requires that we assume that the jury  followed instructions and only awarded for Engine 13 conduct. See United States v. Rivera-Gomez, 67 F.3d 993, 999 (1st Cir.  1995) ("[O]ur system of trial by jury is premised on the  assumption that jurors will scrupulously follow the court's  instructions.").  The gap between a $200,000 award at the second  trial, where no pre-Engine 13 evidence was admitted, and a  $275,000 verdict at the first trial, does not mean the jury the  first time around also awarded for pre-Engine 13 conduct.  And  we have no other basis to assume the jury failed to follow  instructions.


99
If, alternatively, the trial judge's ruling was based  on the belief that the $275,000 verdict alone warranted setting  aside the jury's decision, the ruling was still in error.  A  jury's award of damages stands unless it is "grossly excessive"  or "shocking to the conscience."  Brown v. Freedman Baking Co.,  810 F.2d 6, 11 (1st Cir. 1987).  Whether the jury award here can  be so characterized depends on what damages plaintiff was  entitled to sue for and whether she adequately proved those  damages.  Compensatory but not punitive damages are available  under 42 U.S.C. § 1981a against local governmental agencies.7 Compensatory damages include "noneconomic injuries, such as  emotional distress, pain and suffering, harm to reputation, and  other consequential injury, caused by the defendant's unlawful  conduct."  2 B. Lindemann & P. Grossman, Employment  Discrimination Law 1355.


100
Here plaintiff's injuries were established through her  own testimony and that of her treating psychiatrist.  O'Rourke  testified that while she was at Engine 13, she was a "nervous  wreck," often shaking uncontrollably, had difficulty sleeping,  and gained weight.  Her distress became so severe that she was  eventually unable to function.  After she took disability leave,  O'Rourke continued to suffer from insomnia but spent days in bed  and did not want to leave the house.  She had severe migraine  headaches and gained 80 pounds.


101
O'Rourke's psychiatrist, Dr. Purvis, testified that in  December of 1994, shortly after O'Rourke took leave from the  Department, O'Rourke was "clearly depressed" and felt that "her  life was falling apart" as a result of the harassment.  Dr.  Purvis concluded that O'Rourke was disabled and diagnosed her as  having post-traumaticstress disorder caused by severe and  ongoing stress. He recommended that O'Rourke stay away from the  department and continue treatment, including attending regular  sessions and taking an anti-depressant.  Dr. Purvis also noted  that O'Rourke felt tremendous guilt about having filed a  complaint because of the impact on her family, particularly her  brothers.  In mid-1995, as O'Rourke's therapy continued, Dr.  Purvis observed that O'Rourke was beginning to grieve because  she realized "just how much she lost. . .  really it was her  life."  O'Rourke continued to suffer from post-traumatic stress  disorder and felt embarrassment and shame.  She had a panic  attack when she inadvertently encountered a firefighter at a  store.  Dr. Purvis recommended O'Rourke attend a weight loss  clinic after she gained a dramatic amount of weight in a short  period of time.


102
Throughout 1996, O'Rourke's condition remained  unchanged.  She remained out of work but spoke of her desire to  return, although she was fearful.  By mid-1997, under Dr.  Purvis' guidance, O'Rourke joined the fire prevention  department; Dr. Purvis did not think she was able to return to  being a line firefighter.


103
According to Dr. Purvis, O'Rourke continues to suffer  from post-traumatic stress disorder, requiring treatment for at  least two additional years, including medication and regular  sessions.  Significantly, Dr. Purvis gave his opinion that  O'Rourke's condition was probably permanent:


104
[I]t's a very serious condition.  The  statistics aren't good in terms of a total .  . . remission of all symptoms.  She's been  victimized, and that will always be a part  of her memory and experiences.  It's even  felt it entails some basic neurological  changes in response to ongoing and repeated  stress, so that one's arousal mechanism has  permanently changed.


105
Dr. Purvis described O'Rourke's condition as chronic.  O'Rourke  continued to treat with Dr. Purvis at the time of her second  trial in 1998, and Dr. Purvis testified then that he anticipated  O'Rourke would require several more years of treatment.


106
This evidence amply supports the jury award.  The award  does not exceed "a rational appraisal of the damages actually  incurred."  Hogan v. Bangor & Aroostook R.R., 61 F.3d 1034, 1037  (1st Cir. 1995).  Indeed, in Hogan, we found a $200,000 award  for compensatory damages in an ADA case to meet this test.  Id. at 1038 (damages for emotional distress, inconvenience, mental  anguish, and loss of enjoyment of life).  In Marcano-Rivera, we  affirmed a jury's verdict of $225,000 in compensatory damages  for an employer's failure to accommodate plaintiff's disability. See 232 F.3d at 256-57; see also Webb v. Hyman, 861 F. Supp.  1094, 1116 (D.D.C. 1994) (affirming $225,000 award for emotional  distress in sexual harassment case).  And in Koster v. Trans  World Airlines, Inc., 181 F.3d 24 (1st Cir.), cert. denied, 528  U.S. 1021 (1999), an age discrimination case, we considered  $250,000 an appropriate award of compensatory damages for  emotional distress based on plaintiff's testimony that he had  trouble sleeping, was anxious, and in his new job worked more  and earned less than in his former position, even though  "[t]here was no evidence that [plaintiff] ever sought medical  treatment or suffered any long-term depression or  incapacitation."  Id. at 36.  When compared to these cases, the  evidence of O'Rourke's emotional distress supports the $275,000  award:  her injury is more severe, is supported by her  psychiatrist's testimony, and the consequences of the injury  more lasting.  Thus, we cannot say that "the evidence of injury  was grossly disproportionate to the award for emotional  distress" and therefore the $275,000 award is not excessive as  a matter of law.  Id. at 36.

Reinstatement of First Verdict

107
Nonetheless, the first jury verdict may not be  automatically reinstated if the first trial was otherwise  fatally flawed as to the City.  The City's main argument is that  it was precluded from putting on its version of the pre-Engine  13 events.  That is only partly true.  The City disputed those  events on cross-examination of plaintiff's witnesses, and it  introduced evidence of its 1992 sexual harassment policy.  What  it did not do was put on its own witnesses.  That might well be  enough to carry the City's argument against reinstatement of the  verdict save for one thing: the City did not preserve the  argument.


108
The City failed to make an appropriate offer of proof  and so it has waived the argument.  See United States v. Bonneau, 970 F.2d 929, 933 (1st Cir. 1992).  Similarly, the City  failed to properly object to the introduction of most of the  pre-Engine 13 evidence, as it was required to do after an  unsuccessful motion in limine, and thus failed to preserve its  objection.  See Gill v. Thomas, 83 F.3d 537, 540 (1st Cir.  1996).


109
We touch briefly on two of the City's other arguments. First, there is no merit to the City's argument at the first  trial that it was entitled to a jury instruction that the  firefighters' conduct should be evaluated in the context of a  blue collar environment, as one court has held.  See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th Cir. 1995) ("[W]e  must evaluate [plaintiff's] claim of gender discrimination in  the context of a blue collar environment where crude language is  commonly used . . .").  We decline to adopt such a rule for the  same reasons the Sixth Circuit rejected it:


110
We do not believe that a woman who chooses  to work in the male-dominated trades  relinquishes her right to be free from  sexual harassment; indeed, we find this  reasoning to be illogical, because it means  that the more hostile the environment, and  the more prevalent the sexism, the more  difficult it is for a Title VII plaintiff to  prove that sex-based conduct is sufficiently  severe or pervasive to constitute a hostile  work environment. Surely women working in  the trades do not deserve less protection  from the law than women working in a  courthouse.


111
Williams, 187 F.3d at 564.  As always, regardless of the  setting, "[t]he critical issue, Title VII's text indicates, is  whether members of one sex are exposed to disadvantageous terms  or conditions of employment to which members of the other sex  are not exposed."  Harris, 510 U.S. at 25 (Ginsburg, J.,  concurring).


112
We also reject the City's contention that the  firefighters' reading of pornography in public spaces of the  fire station is protected by the First Amendment, placing the  burden on O'Rourke to avoid it if it offended her.  The City  relies on Johnson v. County of Los Angeles Fire Dep't, 865 F.  Supp. 1430 (C.D. Cal. 1994), where a male firefighter  successfully challenged a policy categorically banning the  possession and reading of sexually explicit magazines in the  fire station.  The court held the policy an impermissible  content-based regulation because the county failed to offer  credible testimony that "mere exposure to the cover of Playboy  directly contributes to a sexually harassing atmosphere."  Id. at 1440.  But Johnson cannot bear the weight of the City's  argument.  The Johnson court emphasized that the plaintiff was  "merely seeking to read and possess Playboy quietly and in  private . . . [and] not seeking to expose the contents of the  magazine to unwitting viewers"; it allowed to stand that portion  of the County's policy prohibiting the public display of nude  pictures.  Id. at 1440.  In contrast, at Engines 5 and 13,  O'Rourke was surrounded by pornographic magazines, sexually  explicit movies, and nude pictures displayed, with no way to  avoid them.  That evidence was probative of the City's knowledge  that the proscribed materials existed and relevant to O'Rourke's  hostile work environment claim; Johnson dealt with a  constitutional challenge to the policy itself.  Moreover, the  fact that the City's sexual harassment policy prohibited the  keeping of pornographic materials at stations undercuts the  City's argument that it was up to O'Rourke to avoid it.

Employer's Liability

113
The City also argues that the district court erred in  instructing the jury that there were two ways the City could be  made liable:


114
If the harasser is a superior, a supervisory  employee, then that alone makes the city  liable.  If it is a superior officer who  harassed her, the city is responsible for  that individual's conduct.  If it is her  coworker, or coworkers, who are guilty of  this harassing conduct, then the city is  only liable if a superior officer knew, or  should have known, of the harassment and  failed to take prompt remedial action.


115
In its brief, the City argues that the court improperly  instructed the jury on quid pro quo sexual harassment, for which  the employer is strictly liable.8  But it did not raise that  objection after the charge, so our review is for plain error  only.  See Diefenbach v. Sheridan Transp., 229 F.3d 27, 33 (1st  Cir. 2000).  We find no error in the court's instruction, let  alone plain error that "affects substantial rights and which has  resulted in a miscarriage of justice or has undermined the  integrity of the judicial process."  Drohan v. Vaughn, 176 F.3d  17, 21 (1st Cir. 1999) (internal quotation marks omitted).  The  "knew or should have known" instruction to hold the city liable  for actions of coworkers was correct.  See White, 221 F.3d at  261.  Further, where there is an actionable hostile environment  attributable to a supervisor, an employer is subject to  vicarious liability to a victimized employee where, as here, it  fails to exercise reasonable care to prevent it.  See Faragher,  524 U.S. at 807.  The City cannot show a miscarriage of justice  resulted from the jury's verdict for O'Rourke because there was  ample evidence to support the City's vicarious liability for the  hostile work environment created by both coworkers and  supervisors.  See Negron v. Caleb Brett U.S.A., Inc., 212 F.3d  666, 672 (1st Cir. 2000).

Effect of Faragher

116
Nor is there reason to remand the case in light of the  Supreme Court's 1998 decision in Faragher, supra.  Faragher entitles an employer to an affirmative defense if it shows that  it exercised reasonable care to prevent and correct harassing  behavior and that the employee unreasonably failed to take  advantage of available remedies.  See id., 524 U.S. at 807-08. But the evidence shows that the City could not prove an  affirmative defense under the Faragher standard.  The City "made  no attempt to keep track of the conduct of supervisors" and  further, as demonstrated by the City's insistence at trial that  O'Rourke should have followed the chain of command and  complained to her supervisor, the City "did not include any  assurance that the harassing supervisors could be bypassed in  registering complaints."  Id. at 808.  Thus, as the Supreme  Court did in Faragher, "we hold as a matter of law that the City  could not be found to have exercised reasonable care to prevent  the supervisors' harassing conduct." Id.


117
Accordingly, O'Rourke established at the first trial  the City's liability for the hostile work environment, the final  element of her sexual harassment claim, and so we reinstate the  verdict.

IV.
Attorneys' Fees and Costs

118
We review the district court's decision regarding  attorneys' fees for abuse of discretion.  See Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 963 (1st Cir. 1995) ("An  award of fees under Title VII is reviewed primarily under an  abuse of discretion standard, and the trial court's range of  discretion is particularly broad.").  We affirm the award of  fees for the second trial and reject both parties' attacks.  We  also hold that O'Rourke is entitled to fees for both trials and  so remand for a determination as to fees for the first trial.


119
First, we reject the City's argument that the district  court should not have awarded fees for two plaintiff's attorneys  at the second trial.  The district court concluded that the use  of two attorneys at trial was reasonable in light of the  complexity of the litigation and the experience of the City's  attorney. See O'Rourke v. City of Providence, 77 F. Supp. 2d  258, 267 (D. R.I. 1999).  We agree.


120
Similarly, the district court did not abuse its  discretion in basing the attorneys' fee award on two different  rates for O'Rourke's attorneys at the second trial.  The court  concluded that Attorney Andrews, whose trial preparation  activities the court viewed as analogous to the role of an  "associate," should be compensated at a lower rate ($100 an  hour) than Attorney DeMaria (at $200 an hour), the "partner,"  who did all of the witness questioning and arguments at trial. See id. at 267-68.  The court acknowledged that some of Andrews'  preliminary work, before DeMaria became involved, should be  compensated at a higher, "partner," rate.  Whether all the  remaining pre-trial work is "associate" work is hardly self-evident, but we defer to the trial judge's sense of this unusual  case.


121
We also conclude that O'Rourke is entitled to an award  of attorneys' fees for the first trial, and not just the second  trial, for the same reasons that we reinstate the verdict from  the first trial.  In its opinion regarding O'Rourke's motion for  attorneys' fees after the second trial, the court denied  O'Rourke attorneys' fees for the first trial because "her  counsel was responsible for the introduction of irrelevant and  highly prejudicial evidence that resulted in a voiding of that  trial result." 77 F. Supp. 2d at 264.  That conclusion was in  error.


122
The question is who should pay for the mistake, in the  sense of bearing the costs of attorneys' fees for two trials. Because the mistake was not caused by plaintiff, there is no  reason to deny fees.  Cf. Gierlinger v. Gleason, 160 F.3d 858,  878-79 (2d Cir. 1998) (finding denial of fees for second trial  an abuse of discretion where record did not support finding of  misconduct by plaintiff's counsel).  We think it more consistent  with the policies of Title VII to rest those costs on the losing  defendant, whose motion resulted in there being two trials.


123
The district court's reduction of O'Rourke's requested  deposition transcript costs was error for the same reason.  The  court awarded costs only for the transcripts of those witnesses  used at the second trial, which were fewer in number than at the  first trial because the second trial was limited to Engine 13  conduct.  The cost of deposition transcripts that were necessary  at the first trial must be included in the award on remand.

V.
Prejudgment Interest

124
The district court's award of pre-judgment interest was  within the district court's discretion to order make-whole  relief, see Earnhardt v. Puerto Rico, 744 F.2d 1, 3 (1st Cir.  1984) (abuse of discretion standard applies to district court's  decision whether to award prejudgment interest in Title VII  case), and therefore we reject the City's argument that the  award was improper.

VI.

125
We reverse the district court's judgment as a matter  of law and its grant of a new trial after the first trial,  direct reinstatement of the first jury award of $275,000, affirm the attorneys' fees award for the second trial and the  award of prejudgment interest, and remand for calculation of  an appropriate award of attorneys' fees and costs for the  first trial.


126
So ordered.



Notes:


1
  In order to review the district court's rulings that  are the subjects of this appeal, our fact summary is based on  testimony at the first trial.  The second trial excluded  evidence of acts occurring before May, 1994.


2
  There was one other woman at Engine 13, but she was  part of a different group.


3
  Although O'Rourke filed her original court complaint before she filed her EEOC complaint, O'Rourke did receive a  right to sue letter and defendants have not argued the point;  thus, the point is waived.  See Zipes v. Trans World Airlines,  Inc., 455 U.S. 385, 393 (1982) ("[F]iling a timely charge of  discrimination with the EEOC is not a jurisdictional  prerequisite to suit in federal court, but a requirement that,  like a statute of limitations, is subject to waiver, estoppel,  and equitable tolling.").


4
  For example, the district court characterized  O'Rourke's testimony about her treatment after the April 1994  fire as a "red herring."  O'Rourke testified she was singled out  for discipline and harshly treated by Chief Costa and Lieutenant  Cionfolo, involuntarily transferred to another station, and  endured harassment as a result of her reputation for "bailing  out" of the fire.  This was probative evidence of a hostile work  environment.  The district court also stated that O'Rourke's  testimony demonstrated that she "blames everyone else but  herself . . . [and] won't accept responsibility for her own  conduct."  That determination was for the jury.


5
  See V. Schultz, Reconceptualizing Sexual Harassment,  107 Yale L.J. 1683, 1719-20 (1998) (isolating nonsexual conduct  from hostile work environment claim "weakens the plaintiff's  case and distorts the law's understanding of the hostile work  environment by obscuring a full view of the culture and  conditions of the workplace" and "drain[s] harassment law of its  ability to address the full range of gender-based hostility at  work").


6
  As best we can tell, only the Ninth Circuit has taken  a different position.  In Fiedler v. UAL Corp., 218 F.3d 973  (9th Cir. 2000), the court rejected a Berry-type analysis in  hostile work environment cases, preferring to focus simply on  whether the "discriminatory acts are related closely enough to  constitute a continuing violation."  Id. at 988.  In Morgan v. Nat'l Railroad Passenger Corp., 232 F.3d 1008 (9th Cir.2000), the court went even further and  rejected any "notice limitation on the continuing violation"  doctrine.  Id. at 1015.  The Ninth Circuit's approach may conflate  the question of whether there is an actionable hostile  environment with the question of an exception to the 300 day  filing requirement.  We rejected above such a per se approach.


7
  While caps limit compensatory (plus punitive) damages  awards against employers, the City did not raise the issue.  The  City of Providence had more than 500 employees over the relevant  period.  The award of $275,000 thus fell within the $300,000 cap  for employers of that size.  See 42 U.S.C. § 1981a(b)(3)(D).


8
  Although in its brief the City makes this argument only  as to the second trial, the court gave the same instruction at  both trials.  The City objected to the instruction at the first  trial on the ground that the court did not give the City's  requested supplemental jury instruction that an employer that  fails to make an adequate investigation of a sexual harassment  complaint can only be held liable for the hostile work  environment created by an employee under a negligence theory of  liability if the employer's remedial action is also lacking. That is not the law, and so the court did not err by refusing to  give the requested instruction.


