United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3999

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Wanda L. Bowen, *

*

Appellant, * Appeal from United States

* District Court for the 

v. * Eastern District of Missouri.

*

Missouri Department of *

Social Services, *

*

Appellee. *

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Submitted: June 14, 2002

Filed: December 2, 2002

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Before RILEY, BEAM, and MELLOY, Circuit Judges.

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RILEY, Circuit Judge.

Wanda L. Bowen (Bowen), a white female, worked as a case worker with the

Missouri Department of Social Services (DSS). Bowen resigned after complaining

she was subjected to a racially hostile work environment. Bowen thereafter filed a

Title VII lawsuit against both the DSS and the Missouri State Workers’ Union

(SWU), alleging a racially hostile work environment, retaliation, and constructive

discharge. The DSS and SWU filed motions for summary judgment, which the
1

In the record, Dintlemann has also been spelled Dintelmann.

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magistrate judge, sitting by consent, granted. Bowen appeals the grant of summary

judgment in favor of the DSS on her racially hostile work environment claim.

Reviewing the grant of summary judgment de novo and applying the same standards

as the district court, Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 841-

42 (8th Cir. 2002), we reverse. 

I. BACKGROUND

From May 1997 through May 1999, Bowen worked as a case worker for the

DSS. Upon hire, the DSS assigned Bowen to work in its midtown office in the City

of St. Louis. Bowen's immediate supervisor was Francine Lee (Lee), an AfricanAmerican. Bowen alleged Lee failed to provide her with training or supplies, and

treated her harshly. 

Early in her employment Bowen heard multiple co-workers comment that Lee

did not like white people. By July 1997, Bowen believed Lee had been harsh with

her, and after a particular exchange over caseloads, Lee suggested, and Bowen

requested, a transfer to a different supervisor.

Upon learning she was being transferred, Bowen asked Lee what she should

do with her assigned case files. Lee responded, "I really don’t give a damn what you

do with them. You can do anything you want." Bowen then entered the office of

Ann Dintlemann (Dintlemann)1

, Lee's supervisor, who is white. Bowen asked what

she should do with her assigned files. While Bowen was in Dintlemann's office, Lee

entered and said, "I see you beat me in here. I might have known you would have

done that. . . . Don’t you roll them eyes at me." Turning to Dintlemann, Lee said,

"Look, I want her out of my group and I want her out now. The sooner the better. Do

you hear me?" 
2

Malin is more often referred to as Patrick Malin in the record.

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Upon leaving the office that evening, Bowen told Lee, "Good night, Francine."

In a loud, threatening voice, Lee responded, "You kiss my ass, you white bitch!" 

Moving near Bowen, Lee warned, "You better move on out 'cause I'm on my own

time now." Within two days, Bowen filed a written grievance complaining of Lee's

"hateful and threatening remarks." The DSS did not discipline Lee. 

Bowen was transferred to another African-American supervisor, Judith Watts

(Watts). Bowen retained her case worker position and continued to work on the same

floor in close proximity to Lee. On a near daily basis, Lee directed hostile stares at

Bowen. 

In early January 1999, Bowen brought a pound cake to work to share with coworkers. When Lee discovered Bowen had brought the cake, Lee threw it on the

floor and said, "Oops," stepped on it and again said, "Oops." Lee told Bowen’s coworker, "You can damn well tell her that I did it." Bowen filed a grievance

complaining of the cake incident.

About this same time, Bowen also filed a grievance against Dintlemann

alleging Dintlemann feared her subordinate African-American supervisors, especially

Lee. Bowen alleged that Dintlemann was an ineffectual department supervisor

because she ignored and concealed open and obvious racial harassment perpetrated

by African-American supervisors against white employees and consistently refused

to discipline African-American supervisors for their discriminatory conduct.

One of Bowen's white co-workers, who also was the union steward, Earl Malin

(Malin)2

, testified Watts, Bowen's new supervisor, favored her African-American

employees. According to Malin, Watts rated African-Americans higher in
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performance reviews and would not challenge their tardiness as she would white

subordinates. 

On January 21, 1999, Bowen and Watts engaged in a heated argument in Watt's

office. The argument concerned whether Bowen had to verify client addresses before

mailing letters from the DSS. Bowen claimed African-American caseworkers

received preferential treatment and were not required to verify client addresses.

When Bowen left the office, Watts entered another African-American supervisor's

office, and Lee joined them. Returning to her workplace, Bowen overheard Watts

complain, "I can't take this any more. I'm going home." Bowen then heard Lee

respond, "No, and you shouldn’t have to, and someone should do something about

that menopausal white bitch." Bowen looked directly at Lee, who gave Bowen a

harsh look and declared, "Yes, I am talking about you." Lee continued, "But right

now I'm going to take you outside and we will settle this once and for all." Lee began

to run directly towards Bowen. 

To avoid physical contact with Lee, Bowen retreated inside her work cubicle.

Lee ran past Bowen's cubicle, turned around, and walked past Bowen's cubicle, but

did not enter. Trembling, Bowen tried phoning security, but she could not find the

number. A co-worker told Bowen, "Whatever you do, don't come out of that cube."

Bowen notified Dintlemann, Lee's boss, and Malin, the union steward.

Dintlemann downplayed the incident. When Bowen told Dintlemann she intended

to contact the police, Dintlemann responded that she did not believe the incident

warranted police involvement. When Malin arrived, Bowen's voice was trembling and

her face was red. Malin assisted Bowen in writing a grievance, which alleged Lee

had harassed and threatened her for two and half years, and local management had

refused to take effective measures to stop the harassment. Bowen requested the DSS

provide her "a safe work environment . . . where Ms. Lee is not permitted to threaten,
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harass & humiliate me." Malin then instructed Bowen to contact the police, and he

escorted her to the parking lot.

Later that day Bowen returned to the DSS midtown office with two police

officers. Bowen, Malin, and the police officers met with four of the DSS managers

to discuss the incident. Bowen told Shirley Bell (Bell), the DSS personnel manager,

she was "afraid to come in here and work." Bowen told Bell that her co-workers had

overheard Lee threatening to shoot fellow employees. Bowen then asked Bell, "What

guarantee do I have that [Lee] won't come up and shoot me in the back as she has

threatened to?" Bell responded the DSS could not guarantee Bowen's safety. 

The DSS recommended Bowen accept a transfer to the DSS Prince Hall office

located in North St. Louis. A police officer present at the meeting told Bowen she

would be worse off working in North St. Louis. Bowen told the DSS managers she

wanted to remain working in the midtown office. Unable to reach an agreement, the

DSS placed Bowen on paid administrative leave. The DSS allowed Lee to continue

working as a supervisor in the midtown office. 

Shortly thereafter, Bowen obtained a protective order against Lee in the Circuit

Court of St. Louis City.

The DSS declined to accept Bowen's grievances relating to the January 21,1999

incident and the earlier cake incident before completing an internal investigation.

Over Bowen's objections, the DSS gave her a temporary work assignment at its Prince

Hall office, but never told Bowen the duration of the assignment. Bowen worked at

Prince Hall for one week during February 1999. Thereafter, Bowen took sick leave

for stress and high blood pressure. 

On April 29, 1999, the Director of the Family Services Division notified

Bowen in writing that the division had completed its investigation of her unlawful
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treatment claims against Lee. The director informed Bowen the DSS had determined

her claims against Lee were unsubstantiated, and advised Bowen the DSS would take

no further action on her claims.

On May 3, 1999, Bowen resigned her position. In her letter of resignation,

Bowen declared the work environment was "completely intolerable" and further

declared that she could not and would not "risk [her] safety by returning to [her]

former position."

In July 1999, the DSS gave Lee a five-day suspension for what the department

deemed was "inappropriate behavior" towards Bowen. Immediately following the

suspension, Lee retired.

Bowen sued both the DSS and the SWU. Bowen alleged racially hostile work

environment, retaliation, and constructive discharge claims against the DSS, and a

claim of race discrimination against the SWU. The DSS and the SWU both moved

for summary judgment, which were granted. Bowen appeals only the court's grant of

summary judgment on her racially hostile work environment claim against the DSS.

The magistrate judge found Bowen had failed to establish Lee's harassment

affected "a term, condition, or privilege of employment" or that Lee's harassment of

Bowen "was based on race." The magistrate judge determined the facts established

"Lee had an extreme, intense dislike for" Bowen, but "[w]ithout some specific

evidence that Lee's conduct directed toward [Bowen] was because [Bowen] was

white," Lee's conduct toward Bowen did not rise to the level of a racially hostile work

environment.
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II. DISCUSSION

A. Hostile Work Environment

Title VII of the Civil Rights Act of 1964 prohibits an employer from

discriminating "against any individual with respect to [her] compensation, terms,

conditions, or privileges of employment, because of such individual's race . . . ." 42

U.S.C. § 2000e-2(a)(1). The Supreme Court has recognized Title VII is violated

when discriminatory harassment is "sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive working environment."

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank,

FSB v. Vinson, 477 U.S. 57, 67 (1986)).

To establish a racially hostile work environment claim, Bowen must

demonstrate unwelcome harassment based on race which is sufficiently severe or

pervasive as to affect a term, condition, or privilege of employment. Woodland, 302

F.3d at 843. Assuming Bowen's claim is principally one based on co-worker

harassment, she must also show that the DSS knew or should have known of Lee's

racially discriminatory harassment and failed to take adequate remedial measures to

end the harassment. Id. The DSS does not dispute Bowen was subjected to Lee's

unwelcome harassment.

To prevail, Bowen "must show both that the offending conduct created an

objectively hostile work environment and that she subjectively perceived her working

conditions as abusive." Williams v. City of Kansas City, 223 F.3d 749, 753 (8th Cir.

2000) (citation omitted). See Harris, 510 U.S. at 21-22. Harassment which is severe

or pervasive is deemed to alter a term, condition, or privilege of employment.

Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). In Faragher, the Supreme

Court emphasized "that conduct must be extreme to amount to a change in the terms

and conditions of employment." Id. at 788. Guided by Harris, we have ruled

workplace conduct does not violate Title VII unless it is "severe or pervasive enough

to create an objectively hostile or abusive work environment – an environment that
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a reasonable person would find hostile or abusive." Gipson v. KAS Snacktime Co.,

171 F.3d 574, 579 (8th Cir. 1999) (quoting Harris, 510 U.S. at 21).

We must "ensure that Title VII does not become a 'general civility code.'"

Faragher, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 80 (1998)). Not all unpleasant and uncivil conduct creates a hostile work

environment. See Woodland, 302 F.3d at 843; Ross v. Kansas City Power & Light

Co., 293 F.3d 1041, 1051 (8th Cir. 2002); Willis v. Henderson, 262 F.3d 801, 808-10

(8th Cir. 2001). "[I]solated incidents (unless extremely serious) will not amount to

discriminatory changes in the 'terms and conditions of employment.'" Faragher, 524

U.S. at 788 (quoting Oncale, 523 U.S. at 82).

1. Harassment Based on Race

The DSS argues, and the magistrate judge found, the evidence established

nothing more than Lee had an extreme, intense dislike for Bowen unrelated to her

race. We do not agree. Viewing, as we must, the evidence in the light most favorable

to Bowen, we conclude she produced sufficient evidence from which reasonable

jurors could infer that Lee's conduct toward Bowen was based on race. Lee's two

"white bitch" epithets were explicitly racial and were directed specifically to Bowen,

a white woman. Because the epithets carried clear racial overtones, they permit an

inference that racial animus motivated not only her overtly discriminatory conduct but

all of her offensive conduct towards Bowen. See O'Shea v. Yellow Tech. Servs., Inc.,

185 F.3d 1093, 1097 (10th Cir. 1999) (hostile work environment based on sex)

(agreeing with Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999)).

2. Severe or Pervasive Harassment 

Because the alleged incidents of misconduct spanned more than eighteen

months, the DSS argues Bowen has not established Lee's conduct permeated the work

place with sufficient severity or pervasiveness to create an abusive working

environment. The magistrate judge agreed.
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Bowen argues she need not establish that Lee's acts were both severe and

pervasive, but need only establish severity. We agree with Bowen. A claimant need

only establish discriminatory conduct which is either pervasive or severe. Harris, 510

U.S. at 22. Thus, we must determine if Bowen has produced enough evidence for a

reasonable jury to decide whether Lee's conduct was sufficiently severe to alter the

conditions of Bowen's employment and create an abusive work environment.

"Workplace conduct is not measured in isolation; instead, 'whether an

environment is sufficiently hostile or abusive' must be judged 'by looking at all the

circumstances.'" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001)

(quoting Faragher, 524 U.S. at 787, quoting Harris, 510 U.S. at 23). In analyzing

Bowen's hostile environment claim, the magistrate judge did not address all of the

factors outlined in Harris, which factors determine whether a work environment is

"hostile" or "abusive." Harris, 510 U.S. at 23. The frequency of the discriminatory

conduct, discussed by the magistrate, is only one of several factors to be considered.

Other factors include the severity of the discriminatory conduct; whether the

offensive conduct was physically threatening or humiliating, as opposed to a mere

offensive utterance; and whether the offensive conduct unreasonably interfered with

the employee's work performance. Id. Finally, a court should consider the effect of

the misconduct on the victim's psychological well-being in determining whether the

victim subjectively perceived the environment to be hostile or abusive. Id. "[N]o

single factor is required." Id. Finally, the "[h]arassment need not be so extreme that

it produces tangible effects on job performance or psychological well-being to be

actionable." Carter, 173 F.3d at 702 (citing Harris, 510 U.S. at 22).

Our independent review of the evidentiary record leads us to conclude Bowen

produced sufficient evidence to demonstrate the cumulative effect of Lee's

discriminatory conduct towards her was sufficiently severe to defeat summary

judgment. While Lee's discriminatory conduct towards Bowen was not frequent,

neither was it infrequent. Reasonable jurors could find that Lee's hostility towards
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Bowen pervaded the work environment, commencing in July 1997 with Lee's "white

bitch" epithet and menacing remarks, continuing with Lee's frequent hostile stares,

intensifying in January 1999 with Lee's violent act of destroying Bowen's cake,

escalating on January 21, 1999, when Lee called Bowen a "menopausal white bitch"

and threatened her with a physical beating, and climaxing when Lee intimidated

Bowen by running directly at her. Bowen's co-workers had warned Bowen that Lee

did not like white people and that Lee had threatened to shoot fellow employees.

Lee's serious misconduct and Bowen's subjective fear of bodily harm adequately

demonstrate, for summary judgment purposes, that Lee's conduct was both

objectively and subjectively hostile or abusive.

We conclude Bowen produced sufficient evidence for a jury to consider

whether, under all of the facts, Lee's progressively hostile conduct was sufficiently

severe to alter a condition of Bowen's employment and create a hostile work

environment.

3. Remedial Action

Assuming Bowen's claim alleges co-worker, as opposed to supervisor,

harassment, Bowen must also show the DSS "knew or should have known of the

racially discriminatory harassment and failed to take prompt and effective remedial

measures to end the harassment." Willis, 262 F.3d at 808. The magistrate judge

acknowledged, but did not discuss, this fifth prima facie element regarding the

employer's knowledge. The record establishes Bowen filed three grievances

complaining specifically of Lee's conduct and another grievance complaining that

Lee's supervisor, out of fear, acquiesced in Lee's harassment. Within hours of Lee's

insulting and intimidating conduct on January 21, 1999, Bowen reported to the DSS

personnel manager her fear of working near Lee. The DSS manager told Bowen the

department could not guarantee her personal safety. We conclude genuine issues of

fact exist whether the DSS knew of the racially discriminatory harassment and took

adequate remedial measures to end the harassment.
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III. CONCLUSION

We therefore reverse the entry of summary judgment in favor of DSS on

Bowen's claim of a racially hostile work environment and remand for a trial on the

merits.

A true copy.

Attest:

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