                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3637
                                  ___________

Tommy Reedy,                           *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Quebecor Printing Eagle, Inc.,         *
and its representatives,               *
                                       *
            Appellee.                  *
                                  ___________

                            Submitted: April 18, 2003

                                 Filed: June 30, 2003
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Tommy Reedy, who is black, brought suit against Quebecor Printing Eagle,
Inc., under 42 U.S.C. § 1981, claiming that he was subjected to a hostile work
environment and constructively discharged because of his race. When the district
court granted summary judgment in favor of Quebecor on both claims, Mr. Reedy
appealed. We reverse in part and affirm in part.
                                           I.
       We review grants of summary judgment de novo. Breeding v. Arthur J.
Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999). "Summary judgment is
appropriate when the evidence, viewed in a light most favorable to the non-moving
party, demonstrates that there is no genuine issue of material fact, and that the moving
party is entitled to judgment as a matter of law." Clark v. Kellogg Co., 205 F.3d
1079, 1082 (8th Cir. 2000); see Fed. R. Civ. P. 56(c).

       In analyzing intentional discrimination claims brought under § 1981, we apply
the same standards as we would apply to similar Title VII claims. Ross v. Kansas
City Power & Light Co., 293 F.3d 1041, 1050 (8th Cir. 2002). Thus, to prevail on his
hostile work environment claim Mr. Reedy must show that he was a member of a
protected group, that he was subjected to unwelcome harassment, that the harassment
was because of his membership in the group, that the harassment affected a term,
condition, or privilege of his employment, and that Quebecor knew or should have
known about the harassment but failed to take prompt and effective remedial action.
See Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 800 (8th Cir. 2003).

       It is undisputed that Mr. Reedy was subjected to some level of unwelcome
harassment because of his race. Our inquiry therefore turns to whether that
harassment affected a term, condition, or privilege of his employment, and, if it did,
whether Quebecor took prompt and effective remedial action in response to it. We
first note that these are two distinct inquiries; that is, courts have generally not taken
into account the remedial actions of the employer when deciding whether the
harassment was "severe or pervasive" enough, see Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998), to have affected a term, condition, or privilege of the
plaintiff's employment. Thus, a series of harassing incidents might be sufficiently
severe or pervasive even if the employer took prompt and effective remedial actions.
See, e.g., Robinson v. Valmont Industries, 238 F.3d 1045, 1047-48 (8th Cir. 2001).



                                           -2-
Of course, in such a case the steps taken by the employer to remedy the situation
would preclude its liability. See id.

       In order to recover, Mr. Reedy must demonstrate that the harassment was
sufficiently "severe or pervasive" to create a work environment that was both
objectively and subjectively hostile. That is, to prevail Mr. Reedy must show that his
work environment was "one that a reasonable person would find hostile or abusive,
and one that [he] in fact did perceive to be so." Faragher, 524 U.S. at 787 (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). In Harris, the Supreme
Court held that in determining whether a plaintiff has made out a claim, a court must
look "at all the circumstances," including 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." Harris, 510 U.S. at 23. Although Harris dealt with a claim of a
sexually hostile work environment, a consideration of the matters that Harris
enumerated is appropriate in cases claiming a racially hostile work environment as
well. See Faragher, 524 U.S. at 786-87.

       Our review of the record (which consists primarily of Mr. Reedy's deposition
testimony) reveals five incidents that can plausibly be characterized as involving
racial harassment. One incident involved a fellow Quebecor employee. Apparently,
the employee agreed to bring back lunch for a group of Quebecor employees,
including Mr. Reedy. When he failed to produce the lunch that Mr. Reedy had
ordered, Mr. Reedy asked him whether he had bought it. The employee responded
by throwing money at Mr. Reedy and saying, "Fucking nigger, go your own self the
next time." The employee's father (also a Quebecor employee) laughed as he
witnessed the incident. Mr. Reedy did not file a complaint or otherwise mention this
incident to a supervising employee.




                                         -3-
        Mr. Reedy also witnessed two ugly occurrences of relevance. In one incident,
two employees approached Rickey Huntley, a black man, called him a "punk ass
nigger" and told him that they were going to "whip his punk ass." Mr. Reedy did not
involve himself in the dispute, but was later called into the office of the plant
manager, Kevin Morris, to confirm Mr. Huntley's account of the incident. As a result
of the investigation, one of the offending employees received a one-week suspension
and the other was terminated. On another occasion, Mr. Reedy witnessed an
employee accusing Travis Moore, another black employee, of stealing his car radio.
After exclaiming that "all you niggers steal," the employee threw a metal blade at
Mr. Moore. The offender was terminated after an investigation.

       Lastly, in his deposition Mr. Reedy describes incidents involving the exhibition
of racial graffiti. According to that testimony, during September, 1998, the phrase
"Tommy smoked crack, white crack" was written in a men's bathroom stall (one of
two at the plant) and the word "coon" was written below Mr. Reedy's name. In
addition, there appeared a drawing of an ape accompanied by the phrase "all niggers
must die." Mr. Reedy reported the graffiti to Keith Bender, his immediate supervisor,
and to Mr. Morris. Soon thereafter, the graffiti was painted over.

       Mr. Reedy claims that the racial graffiti reappeared in October 1998. This
time, he says, his name was written below the phrase "kill all niggers" on the
bathroom handrail. Mr. Reedy again reported the offending bathroom graffiti, to
which Mr. Morris allegedly responded, "I got it off once. What do you want me to
do, tear the wall down?" This graffiti was not removed until after Mr. Reedy left the
employment of Quebecor.

      The district court held that Mr. Reedy’s account of these incidents, even if
completely true, did not make out a submissible claim based on a hostile work
environment. We disagree. Although we acknowledge that this is a close case, in our
view Mr. Reedy has made out a claim.

                                         -4-
       In granting summary judgment, the district court relied heavily on our decision
in Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839 (8th Cir. 2002). In that
case, we held that a plaintiff’s claim of hostile work environment was not submissible
where there was evidence that the plaintiff was the target of several racial epithets,
that a poem with racist messages was circulated among the plant employees, and that
drawings of “KKK,” a swastika, and a hooded figure appeared on the walls of the
men’s restrooms. Id. at 843-44. We believe, however, that Mr. Reedy’s situation is
distinguishable from Woodland in three important respects. First, while the aggregate
number of racially hostile incidents in Woodland is comparable to the number of
incidents about which Mr. Reedy testified, the frequency of their occurrence is
substantially different. The handful of incidents in Woodland occurred over the span
of four to five years. Id. at 843. In contrast, Mr. Reedy experienced a similar number
of incidents within only seven months. Second, whereas in Woodland the racial
graffiti was quickly removed, id., the second instance of graffiti at Quebecor
remained in place until Mr. Reedy left approximately five months later. In our view,
these two differences make the harassment that Mr. Reedy suffered substantially more
pervasive than that in Woodland.

       But it is a third difference that in our mind separates this case most obviously
from Woodland: The message of hate expressed to Mr. Reedy through the graffiti
was physically threatening in a way that the graffiti in Woodland was not. While it
is true that the symbols employed in Woodland (“KKK,” a swastika, and a hooded
figure) were generically threatening, they were not directed specifically at the
plaintiff. In contrast, 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 five months. We think that this
threat can fairly be characterized as severe. We thus do not believe that Woodland
controls in this situation. Indeed, we think that Mr. Reedy's has produced evidence
of harassment that is at least as severe and pervasive as that produced in Bowen v.

                                         -5-
Missouri Dep't of Social Serv., 311 F.3d 878 (8th Cir. 2002), and Ross v. Douglas
County, Nebraska, 234 F.3d 391 (8th Cir. 2000). In both of those cases we held that
the plaintiffs had made out a submissible hostile work environment claim.

      We conclude that an objective person who was experiencing what Mr. Reedy's
testimony says he did would find that his work environment was offensive, or, in the
language of Faragher, 524 U.S. at 787, "hostile or abusive." Likewise, the fact that
Mr. Reedy reported the graffiti to his supervisors on both occasions is sufficient to
demonstrate that Mr. Reedy subjectively found that his work environment was
offensive.

       We also believe that Mr. Reedy offered sufficient evidence that Quebecor knew
or should have known about the harassment but failed to take prompt and effective
remedial action. See Diaz, 318 F.3d at 800. While Quebecor did respond adequately
to most of the incidents that they were aware of, their alleged handling of the death
threat strikes us as anything but a prompt and effective remedial action. In fact, a
response like the one that Mr. Morris is said to have given to Mr. Reedy is probably
worse than no response at all. When a plaintiff shows that an employer has a mixed
record with regard to handling harassing incidents, we have generally determined that
there is a genuine issue of material fact, to be decided by a jury, as to whether the
employer's remedial actions have been prompt and effective. See, e.g., Carter v.
Chrysler Corp., 173 F.3d 693, 702-03 (8th Cir. 1999). We thus have no trouble
concluding that a reasonable jury could find that Quebecor failed in its duty to
respond appropriately to the harassment directed at Mr. Reedy.

     We therefore hold that Mr. Reedy produced sufficient evidence to make out a
submissible case on his claim based on a hostile work environment.




                                         -6-
                                          II.
       Mr. Reedy also argues that the district court erred in granting summary
judgment on his constructive discharge claim. “An employee is constructively
discharged if an employer renders the employee’s working conditions so intolerable
that the employee is forced to quit.” Duncan v. General Motors Corp., 300 F.3d 928,
935 (8th Cir. 2002), cert. denied, 123 S. Ct. 1789 (2003). An employee must show
that his employer intended to force him to quit or, at a minimum, that the employee's
resignation was reasonably foreseeable as a consequence of his working conditions,
id., and we have previously noted that a “plaintiff must show more than just a Title
VII violation by [his] employer in order to prove that [he] has been constructively
discharged,” Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247 (8th Cir. 1998).

       Our review of the evidence convinces us that Mr. Reedy has failed to present
sufficient evidence for a jury to find that a reasonable person in Mr. Reedy's position
would have found the conditions of his employment so intolerable that he would be
forced to quit. We therefore agree with the district court that Mr. Reedy has not made
out a claim for constructive discharge.

                                          III.
      We reverse the entry of summary judgment in favor of Quebecor on
Mr. Reedy's claim of a racially hostile work environment and remand for a trial on the
merits. The entry of summary judgment in favor of Quebecor on Mr. Reedy's
constructive discharge claim is affirmed.

BEAM, Circuit Judge, concurring and dissenting.

       I concur in Part II of the court's opinion. However, I respectfully dissent from
the result reached in Part I, although I agree it is a close question.




                                         -7-
       Mr. Reedy learned about Quebecor Printing Eagle from Ira Williams, an
employee of the company and a family friend. Mr. Reedy had no complaints about
how Quebecor handled the reported incidents until Mr. Williams was discharged for
poor attendance. Less than three weeks later, Mr. Reedy walked off the job in the
middle of his shift and did not return, filing a lawsuit approximately four months
later. Considering this turn of events, I am inclined to agree with the district court's
analysis of Mr. Reedy's contentions and would affirm on the basis of the court's well-
reasoned opinion.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -8-
