Stacey Stewart v. MTR GAMING GROUP, INC., d/b/a Mountaineer Casino Racetrack & Resort

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1775
STACEY STEWART,
Plaintiff - Appellant,
v.
MTR GAMING GROUP, INC., d/b/a Mountaineer Casino Racetrack &
Resort,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. John Preston Bailey,
Chief District Judge. (5:12-cv-00066-JPB)
Submitted: November 27, 2013 Decided: August 13, 2014
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Daniel W. Cooper, COOPER & LEPORE, Carnegie, Pennsylvania; Jacob
Robinson, ROBINSON LAW OFFICES, Wheeling, West Virginia, for
Appellant. Larissa C. Dean, SPILMAN, THOMAS & BATTLE, PLLC,
Morgantown, West Virginia; Eric E. Kinder, SPILMAN, THOMAS &
BATTLE, PLLC, Charleston, West Virginia; Narciso Alejandro
Rodriguez-Cayro, MTR GAMING GROUP, INC., Wexford, Pennsylvania,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Stacey Stewart appeals the district court’s order
granting summary judgment in her action under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-
17 (West 2003 & Supp. 2013), to the Defendant, MTR Gaming Group,
Inc. (“MTR”). On appeal, Stewart contends that the district
court erred when it granted summary judgment to MTR on her
hostile work environment and retaliation claims. We conclude
that the district court did not err when it granted summary
judgment on Stewart’s retaliation claim, but that the court did
not apply the appropriate standard to Stewart’s hostile work
environment claim. We therefore affirm in part, vacate in part,
and remand for further proceedings.
MTR owns and operates the Mountaineer Casino Racetrack
& Resort (“Mountaineer”), which employed Stewart as a table
games dealer. Stewart alleged that she was subject to a hostile
work environment as a result of sexually inappropriate comments
directed to her by her co-workers, a rumor that she had been
caught having sex with a co-worker on casino property, and three
incidents where she had been touched by co-workers. Mountaineer
ultimately terminated Stewart after the West Virginia State
Lottery (“Lottery”) issued a violation notice regarding an
incident where Stewart engaged in an argument with a co-worker,
who was also terminated. Stewart asserts that her termination

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was in retaliation for complaints she made to Mountaineer’s
human resource department about sexual harassment.
“We review de novo whether the district court erred in
granting summary judgment, viewing the facts and drawing all
reasonable inferences therefrom in the light most favorable to
[the non-moving party].” PBM Prods., LLC v. Mead Johnson & Co.,
639 F.3d 111, 119 (4th Cir. 2011). Summary judgment is properly
granted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The relevant inquiry is
“whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986).
I.
Stewart first alleges that she was subject to constant
inappropriate sexual comments for nearly a year, including
propositions for sex, which, in addition to the rumor and the
three incidents of touching, created a hostile work environment.
To establish a hostile work environment claim, Stewart was
required to show that she was subjected to conduct that was: (1)
unwelcome; (2) based on her gender; (3) sufficiently severe or
pervasive to alter the conditions of her employment and create
an abusive work environment; and (4) imputable to her employer.

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Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).
As to the rumor, we conclude that, even viewing Stewart’s claims
as a whole, the complained-of conduct was not based on her
gender. See Alfano v. Costello, 294 F.3d 365, 378 (2d Cir.
2002) (“Facially neutral incidents may be included . . . among
the ‘totality of the circumstances’ that courts consider in any
hostile work environment claim, so long as a reasonable fact-
finder could conclude that they were, in fact, based on sex.”).
On the other hand, the district court concluded, and we agree,
that Stewart raised a genuine issue of material fact with regard
to the duration, severity, and pervasiveness of the
inappropriate sexual comments and touching when she alleged that
co-workers propositioned her for sex, described their fantasies
of engaging in sex acts with Stewart, asked whether she was
wearing underwear, turned anything said in the workplace into
sexual innuendo, and shared inappropriate sexual stories for
nearly a year.
Additionally, the district court concluded that, even
if Stewart raised a genuine issue of material fact regarding her
hostile work environment claim, summary judgment was appropriate
because, under the McDonnell-Douglas∗ burden-shifting framework,
Stewart could not show that MTR’s legitimate, non-discriminatory
∗ 411 U.S. 792 (1973).

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reasons for her termination were pretext for unlawful
discrimination. The district court erred when it applied the
burden-shifting framework to Stewart’s hostile work environment
claim. The purpose of the burden-shifting framework is to
assist the court in determining whether a plaintiff without
direct evidence of unlawful intent can nevertheless raise a
triable issue over whether a facially legitimate action was the
product of discriminatory motivation. See Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). Here, Stewart
has presented direct evidence of sexual harassment, and within
the context of her hostile work environment claim there is no
facially legitimate action to consider. See Johnson v. Booker
T. Washington Broad. Serv. Inc., 234 F.3d 501, 510-11 (11th Cir.
2000) (holding that district court erred by applying burden-
shifting framework to sexual harassment case).
The district court therefore applied an improper
standard to Stewart’s hostile work environment claim. Having
concluded that Stewart raised a genuine issue of material fact
on the first three elements of a hostile work environment claim,
the district court must assess whether there is a genuine issue
of material fact that the conduct about which Stewart complained
was imputable to MTR. Because this is a fact-intensive inquiry,
we vacate this portion of the district court’s order and remand
for further proceedings.

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II.
Stewart also alleges that she was terminated in
retaliation for her complaints that she was subject to sexual
harassment, but she provides no direct evidence to support that
conclusion. Therefore, she must proceed under the McDonnell-
Douglas burden-shifting framework. To establish a prima facie
case of retaliation, Stewart “must show that (1) [she] engaged
in a protected activity . . .; (2) the employer acted adversely
against [her]; and (3) the protected activity was causally
connected to the employer’s adverse action.” Okoli, 648 F.3d at
223. Even assuming that Stewart can satisfy every element of
the prima facie case, she has not demonstrated that MTR’s
legitimate, non-discriminatory reasons for her termination were
pretext for unlawful discrimination.
Once a plaintiff has established a prima facie case,
“the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.”
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285
(4th Cir. 2004) (en banc). “This burden . . . is a burden of
production, not persuasion.” Holland v. Wash. Homes, Inc., 487
F.3d 208, 214 (4th Cir. 2007). Here, MTR asserted that Stewart
was terminated as a result of the violation notice issued by the
Lottery and for causing a guest services issue. Once MTR met
its burden under the McDonnell-Douglas framework, “the burden

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shifts back to [Stewart] to prove by a preponderance of the
evidence that the employer’s stated reasons ‘were not its true
reasons, but were a pretext for discrimination.’” Hill, 354
F.3d at 285 (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000)). We conclude that Stewart has not met
this burden for the reasons stated by the district court.
Accordingly, we affirm in part the district court’s
order granting summary judgment, vacate in part, and remand for
further proceedings. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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