                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2189
                                    ___________

Herman Jackson,                        *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
       v.                              * District Court for the District
                                       * of Minnesota.
Flint Ink North American Corporation, *
also known as Flint Ink Corporation,   *
                                       *
            Appellee.                  *
                                  ___________

                              Submitted: February 13, 2004
                                 Filed: August 27, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and RILEY, Circuit
      Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Herman Jackson filed a petition for rehearing in this case, maintaining that
whether an environment is objectively hostile is always a question of fact for a
properly instructed jury. We reject this argument. The question of whether an
environment is sufficiently hostile to be actionable is a legal question, and, like any
legal question, is a matter for the court to decide. In other words, a showing of some
minimal level of harassment is necessary before a case is submissible to a jury. A
court of course may decide this issue of submissibility on summary judgment. See,
e.g., Alagna v. Smithville R-II School Dist., 324 F.3d 975, 979-81 (8th Cir. 2003).
       We have, however, reexamined the record to determine whether Mr. Jackson's
evidence was sufficient to survive summary judgment, and we now conclude that it
was. We refer particularly to Mr. Jackson's deposition testimony (which neither party
pointed us to directly) that his name was written in a shower at his workplace and that
there was an arrow connecting his name with a burning cross and a KKK sign. We
think that an objective observer would regard this combination of figures as a threat
of serious bodily harm if not death to Mr. Jackson; and when this threat is combined
with all of the other incidents that Mr. Jackson complained of, and which we detailed
at length in our previous opinion, see Jackson v. Flint Ink N. Am. Corp., 370 F.3d
791, 793-96 (8th Cir. 2004), we conclude that the present case is governed by Reedy
v. Quebecor Printing Eagle, Inc., 333 F.3d 906 (8th Cir. 2003).

       We admit that the matter is not altogether free from doubt, and we think that
this case is on the cusp of submissibility. But our best judgment is that an objective
observer in Mr. Jackson's shoes would be justified in reacting to his situation in a way
that would affect a term or condition of his employment.

      We note that on remand Flint Ink may deny that it had notice of Mr. Jackson's
environment or may assert that they took remedial action sufficient to absolve them
from any liability. These matters were not before the court on appeal.

       We grant rehearing and reverse the judgment of the district court as to
Mr. Jackson's hostile work environment claim, and we remand this case to the district
court for further proceedings.
                       ______________________________




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