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Distinguishing Woodland on a number of grounds, the Eighth Circuit reversed. Unlike in Woodland, where the graffiti (the letters “KKK,” a swastika, and a hooded figure) was promptly removed and was spread out over a longer period of time, the graffiti to which Reedy was subjected was more pervasive. Moreover, the court found, while the symbols employed in Woodland were generically threatening, they were not directed specifically at the plaintiff. Here, “[t]he message of hate expressed to Mr. Reedy through the graffiti was physically threatening in a way that the graffiti in Woodland was not.” Indeed, “what appeared in the Quebecor bathroom stalls can be described as nothing less than a death threat aimed directly and specifically at Mr. Reedy – a death threat, moreover, that stayed on the wall for 5 months.” Thus, the threats to which Reedy was subjected were both severe and pervasive, and the company had not taken prompt remedial action to remove the graffiti. Accordingly, the court revived Reedy's hostile work environment claims.

Agent's Signature Valid on Employment Agreement

The signature of an agent authorized to execute employment contracts with seamen satisfies the requirement that such agreements be “in writing” and signed by both the vessel owner and master, the U.S. Court of Appeals for the Ninth Circuit has held. Flores v. American Seafoods Co., 335 F.3d 904 (9th Cir. July 9).

When this litigation was active, federal maritime law required that a “fishing agreement” be “in writing” and signed both by the “master or individual in charge of [the] fishing vessel” and “by the owner of the vessel.” Some fishing vessel crew members on ships owned by American Seafoods entered into such agreements, which were signed by an agent for both the owner and the vessel masters. A dispute arose between crewmembers and American Seafoods over how bonuses would be calculated at the end of one fishing season. When the dispute could not be resolved, the crewmen sued the employer, arguing, inter alia, that the contracts governing their employment were not valid because the vessel masters had delegated their signature function to an agent, a human relations official. The district court rejected the claim of the crewmembers.

The Ninth Circuit affirmed the district court. The reason that federal law required that fishing agreements be signed by both the vessel master and vessel owner was to protect seamen from “unscrupulous employers,” the court wrote. Here, the agent acting on behalf of the vessel master and owner possessed actual authority to bind the master and owner to the contract, so the aim of the law in question was satisfied. Thus, the court observed, the valid contracts effectively protected the seamen from “duress, coercion, and deception.” Given the policy behind the federal law governing fishing contracts, the Ninth Circuit also had no objection to a single agent signing on behalf of both master and owner of the vessel.

Defending Against Sexual Harassment Charge Is Protected Activity

Resolving an issue of first impression in the circuit, the Second Circuit Court of Appeals has held that a former New York City Department of Corrections employee who defended himself against sexual harassment charges was engaged in activity protected under Title VII. Deravin v. Kerik, 335 F.3d 195 (2d Cir. July 11).

Eric Deravin was an employee of the New York City Department of Corrections (DOC) for more than 20 years and, in 1996, had been elevated to the position of Assistant Deputy Warden. Deravin later applied for a Deputy Warden position when he became eligible to do so in 1998, and applied five more times for the same position before April 2001. Deravin would later claim that as many as 14 less-qualified white applicants were awarded Deputy Warden positions as part of a routine preference in the DOC for promoting white employees. Deravin also claimed that he was unfairly passed over because of his successful defense of sexual harassment charges that had been made against him by a DOC officer whom he had dated. On these grounds, Deravin filed an EEOC charge of discrimination. However, on his charge, Deravin failed to check the box for race discrimination, instead indicating only that he suffered retaliation and national origin discrimination. Additionally, Deravin's narrative description of his claims, submitted with the EEOC charge, did not allege racial discrimination, but instead alleged a preference at the DOC for Irish-American employees. When Deravin's administrative charge was closed, he brought race discrimination and retaliation charges in federal court. The district court found that Deravin's defense against sexual harassment charges did not constitute “protected activity” in the context of a Title VII sexual harassment and that he had not administratively exhausted his race claim since the race claim was not explicitly raised in Deravin's EEOC charge.

The Second Circuit disagreed with the district court on both the race and retaliation claims. The district court, according to the Second Circuit, had read Title VII's anti-retaliation provisions – which contain “opposition” and “participation” clauses – too narrowly. Indeed, the court wrote, other courts have routinely recognized that the “participation” clause, which relates to Deravin's activity here, is exceptionally broad. However, the court explained that its decision should not be construed as prohibiting the discipline of employees who engage in discriminatory acts. “[W]hile an employer may not retaliate against an employee solely because the employee participated in a Title VII proceeding, an employer may discipline an employee if its investigation reveals culpable conduct,” the court wrote. The court also held that, even if Deravin had not explicitly referenced race in his EEOC charge, his allegation that employees of Irish-American heritage were favored, “an allegation of preferential treatment for Irish-American employees fairly encompasses a claim of discrimination against minority employees.”

Physical Threat in Graffiti Precludes Summary Judgment

The Eighth Circuit has held that an African-American's hostile work environment claim based in part on a threat of physical violence contained in racist graffiti could not be resolved on summary judgment. Reedy v. Quebecor Printing Eagle, Inc. , 333 F.3d 906 (8th Cir. June 30).

Tommy Reedy, an employee at a commercial printing plant, brought hostile work environment and constructive discharge claims against his employer, citing five instances of hostile treatment. The incidents included an instance in which a fellow employee refused to bring Reedy's lunch with those of other employees, saying, “Go your own self the next time,” along with a racial and obscene epithet; an occasion upon which Reedy saw two co-workers approach a black employee and call him by a racial slur; coworker accusations against another black employee that he stole from the company, accompanied by a comment that “All you [ethnic slur]s steal,” and by throwing a metal blade at the employee; and two instances of racially hostile graffiti in September and October of 1998. In the first instance, the word “coon” was written below Reedy's name, and an ape was drawn next to the scrawled phrase, “all [ethnic slur]s must die.” In the second instance, graffiti containing Reedy's name written below the phrase “kill all [ethnic slur]s” in an employee bathroom. Reedy reported the first instance of the graffiti to a supervisor, who had the graffiti removed. When Reedy reported the second instance, however, the supervisor responded, “What do you want me to do, tear the wall down?” The graffiti was not removed until after Reedy had left the company. The district court granted the company's motion for summary judgment, dismissing Reedy's claims. Relying on Woodland v. Joseph T. Ryerson & Sons Inc. , 302 F.3d 839 (8th Cir. 2002), the lower court found that the racial epithets in graffiti could not support a hostile work environment claim.

Distinguishing Woodland on a number of grounds, the Eighth Circuit reversed. Unlike in Woodland, where the graffiti (the letters “KKK,” a swastika, and a hooded figure) was promptly removed and was spread out over a longer period of time, the graffiti to which Reedy was subjected was more pervasive. Moreover, the court found, while the symbols employed in Woodland were generically threatening, they were not directed specifically at the plaintiff. Here, “[t]he message of hate expressed to Mr. Reedy through the graffiti was physically threatening in a way that the graffiti in Woodland was not.” Indeed, “what appeared in the Quebecor bathroom stalls can be described as nothing less than a death threat aimed directly and specifically at Mr. Reedy – a death threat, moreover, that stayed on the wall for 5 months.” Thus, the threats to which Reedy was subjected were both severe and pervasive, and the company had not taken prompt remedial action to remove the graffiti. Accordingly, the court revived Reedy's hostile work environment claims.

Agent's Signature Valid on Employment Agreement

The signature of an agent authorized to execute employment contracts with seamen satisfies the requirement that such agreements be “in writing” and signed by both the vessel owner and master, the U.S. Court of Appeals for the Ninth Circuit has held. Flores v. American Seafoods Co. , 335 F.3d 904 (9th Cir. July 9).

When this litigation was active, federal maritime law required that a “fishing agreement” be “in writing” and signed both by the “master or individual in charge of [the] fishing vessel” and “by the owner of the vessel.” Some fishing vessel crew members on ships owned by American Seafoods entered into such agreements, which were signed by an agent for both the owner and the vessel masters. A dispute arose between crewmembers and American Seafoods over how bonuses would be calculated at the end of one fishing season. When the dispute could not be resolved, the crewmen sued the employer, arguing, inter alia, that the contracts governing their employment were not valid because the vessel masters had delegated their signature function to an agent, a human relations official. The district court rejected the claim of the crewmembers.

The Ninth Circuit affirmed the district court. The reason that federal law required that fishing agreements be signed by both the vessel master and vessel owner was to protect seamen from “unscrupulous employers,” the court wrote. Here, the agent acting on behalf of the vessel master and owner possessed actual authority to bind the master and owner to the contract, so the aim of the law in question was satisfied. Thus, the court observed, the valid contracts effectively protected the seamen from “duress, coercion, and deception.” Given the policy behind the federal law governing fishing contracts, the Ninth Circuit also had no objection to a single agent signing on behalf of both master and owner of the vessel.

Defending Against Sexual Harassment Charge Is Protected Activity

Resolving an issue of first impression in the circuit, the Second Circuit Court of Appeals has held that a former New York City Department of Corrections employee who defended himself against sexual harassment charges was engaged in activity protected under Title VII. Deravin v. Kerik , 335 F.3d 195 (2d Cir. July 11).

Eric Deravin was an employee of the New York City Department of Corrections (DOC) for more than 20 years and, in 1996, had been elevated to the position of Assistant Deputy Warden. Deravin later applied for a Deputy Warden position when he became eligible to do so in 1998, and applied five more times for the same position before April 2001. Deravin would later claim that as many as 14 less-qualified white applicants were awarded Deputy Warden positions as part of a routine preference in the DOC for promoting white employees. Deravin also claimed that he was unfairly passed over because of his successful defense of sexual harassment charges that had been made against him by a DOC officer whom he had dated. On these grounds, Deravin filed an EEOC charge of discrimination. However, on his charge, Deravin failed to check the box for race discrimination, instead indicating only that he suffered retaliation and national origin discrimination. Additionally, Deravin's narrative description of his claims, submitted with the EEOC charge, did not allege racial discrimination, but instead alleged a preference at the DOC for Irish-American employees. When Deravin's administrative charge was closed, he brought race discrimination and retaliation charges in federal court. The district court found that Deravin's defense against sexual harassment charges did not constitute “protected activity” in the context of a Title VII sexual harassment and that he had not administratively exhausted his race claim since the race claim was not explicitly raised in Deravin's EEOC charge.

The Second Circuit disagreed with the district court on both the race and retaliation claims. The district court, according to the Second Circuit, had read Title VII's anti-retaliation provisions – which contain “opposition” and “participation” clauses – too narrowly. Indeed, the court wrote, other courts have routinely recognized that the “participation” clause, which relates to Deravin's activity here, is exceptionally broad. However, the court explained that its decision should not be construed as prohibiting the discipline of employees who engage in discriminatory acts. “[W]hile an employer may not retaliate against an employee solely because the employee participated in a Title VII proceeding, an employer may discipline an employee if its investigation reveals culpable conduct,” the court wrote. The court also held that, even if Deravin had not explicitly referenced race in his EEOC charge, his allegation that employees of Irish-American heritage were favored, “an allegation of preferential treatment for Irish-American employees fairly encompasses a claim of discrimination against minority employees.”