UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.
2

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-2000e17 (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 
3

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. 
4

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 factfinder 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).
5

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 burdenshifting 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.
6

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 McDonnellDouglas 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 
7

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