                              UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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



                                              4
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.

                                            5
                                          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

                                           6
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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