                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


RODERICK DION LEAKE,                   
                Plaintiff-Appellant,
                 v.                             No. 99-2670
RYAN’S FAMILY STEAKHOUSE,
               Defendant-Appellee.
                                       
            Appeal from the United States District Court
     for the Eastern District of North Carolina, at Wilmington.
                    James C. Fox, District Judge.
                          (CA-98-234-7-F)

                      Argued: October 30, 2000

                      Decided: March 8, 2001

        Before WILKINS and KING, Circuit Judges, and
         Frank J. MAGILL, Senior Circuit Judge of the
      United States Court of Appeals for the Eighth Circuit,
                     sitting by designation.



Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.


                            COUNSEL

ARGUED: Neal Lawrence Walters, Tillman James Breckenridge,
Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL
OF LAW, Charlottesville, Virginia, for Appellant. Charles Matthew
Keen, OGLETREE, DEAKINS, NASH, SMOAK & STEWART,
2                LEAKE v. RYAN’S FAMILY STEAKHOUSE
P.C., Raleigh, North Carolina, for Appellee. ON BRIEF: Sheri L.
Roberson, OGLETREE, DEAKINS, NASH, SMOAK & STEWART,
P.C., Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Roderick Dion Leake appeals an order of the district court granting
summary judgment to his former employer, Ryan’s Family Steak-
house (Ryan’s), on Leake’s claims of sexual harassment and unlawful
retaliation in violation of Title VII of the Civil Rights Act of 1964.
See 42 U.S.C.A. §§ 2000e-2(a), 2000e-3(a) (West 1994). Leake first
contends that the district court erred in concluding that he had not
produced evidence of gender-based animus. Leake also asserts that
the district court applied an incorrect standard to his retaliation claim.
Only the first of these claims warrants relief; accordingly, we affirm
as to Leake’s retaliation claim but vacate the judgment and remand
as to his sexual harassment claim.

                                    I.

   The record before us contains numerous conflicting allegations.
Because we are reviewing the entry of summary judgment, we must
view the evidence in the light most favorable to the non-movant,
Leake. See Figgie Int’l, Inc. v. Destileria Serralles, Inc., 190 F.3d
252, 255 (4th Cir. 1999). Viewed in this light, the record reveals the
following. Leake worked as a meat cutter at Ryan’s from June 1993
to July 1997. For approximately six months before his termination, he
was sexually harassed by his manager, Nathaniel Ladendorf. Among
other acts, Ladendorf made sexual remarks and touched Leake’s but-
tocks and genitals. On one occasion, Ladendorf pushed Leake back
into a bathroom as Leake was leaving it; once inside, Ladendorf
                 LEAKE v. RYAN’S FAMILY STEAKHOUSE                    3
began groping Leake and said, "Come on, let’s do this here." J.A. 63
(internal quotation marks omitted). Ladendorf also abused other
employees, both male and female, but his mistreatment of Leake was
more severe and more overtly sexual.

   Leake submitted a complaint to Ryan’s on July 23, 1997. Over the
next several days, the general manager watched Leake closely and
criticized his work several times. Leake complained to Ryan’s about
this on July 28 and added that he had contacted an attorney about
these events.

   The following day, the district manager, Dexter Brown, met with
Leake concerning his complaints. When Brown reported that Laden-
dorf had denied Leake’s allegations, Leake accused Brown of taking
Ladendorf’s side; he then unilaterally ended the conversation by turn-
ing his back to Brown and walking out of the room, despite specific
orders to stay and discuss matters. Brown followed Leake to the meat
cutting room, leading to the following events (as recounted by Leake
at his deposition):

     [Brown] knocked on the door. I put the knife down. I went
     to the door. And he said—I opened the door and I let him
     in. He said, "Rod, I didn’t say I didn’t believe you. I just
     said that Nate said he denied it." I said, "Well, Dexter, what
     do you think he’s going to say?" He said, "Well, I think it
     be [sic] best that you get your stuff and leave." I said,
     "Fine."

Id. at 76.

   After his discharge, Leake filed this action alleging, as is relevant
here, sexual harassment and retaliation. The district court granted
summary judgment in favor of Ryan’s. The court rejected the sexual
harassment claim on the basis that Ladendorf’s mistreatment of both
males and females precluded any possible inference that Ladendorf’s
conduct toward Leake was motivated by gender. Regarding Leake’s
retaliation claim, the court determined that Leake had established a
prima facie case of retaliation but that Ryan’s had proffered a legiti-
mate reason for terminating Leake; the court then found that Leake
could not make either of two required showings—that the proffered
4                LEAKE v. RYAN’S FAMILY STEAKHOUSE
explanation was pretextual and that the real motivation was unlawful
retaliation.

                                   II.

   We review the grant of summary judgment de novo. See Figgie
Int’l, 190 F.3d at 255. Summary judgment is appropriate "if the plead-
ings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judg-
ment as a matter of law." Fed. R. Civ. P. 56(c).

                                   A.

   Leake initially challenges the entry of summary judgment in favor
of Ryan’s on his sexual harassment claim. To prove harassment,
Leake must submit evidence of "(1) unwelcome conduct; (2) that is
based on the plaintiff’s sex; (3) which is sufficiently severe or perva-
sive to alter the plaintiff’s conditions of employment and to create an
abusive work environment; and (4) which is imputable to the
employer." Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179,
192 (4th Cir. 2000). The district court granted summary judgment on
the basis that Leake could not establish the second prong of this test,
because Ladendorf’s mistreatment of both men and women negated
Leake’s allegation of discriminatory animus.1 We hold that summary
judgment was improper because Leake forecast sufficient evidence to
show that Ladendorf’s conduct toward him was discriminatory and
was motivated by sex.

   Viewed in the light most favorable to Leake, the record shows that
Ladendorf abused all his employees but singled out Leake for particu-
larly severe mistreatment. If Leake can prove that this conduct would
not have occurred but for the fact that he is male, then he is eligible
for a remedy under Title VII. See Wrightson v. Pizza Hut of Am., Inc.,
    1
   The district court found that Leake had "presented some evidence
tending to satisfy" the other elements of a prima facie case. J.A. 105.
Having carefully reviewed the record and the briefs, and having had the
benefit of oral argument, we hold that Leake proffered sufficient evi-
dence to generate a dispute of fact as to these elements.
                  LEAKE v. RYAN’S FAMILY STEAKHOUSE                       5
99 F.3d 138, 142 (4th Cir. 1996). This is true notwithstanding the
general unpleasantness of his work environment, see Lack v. Wal-
Mart Stores, Inc., No. 99-2089, slip op. at 15 (stating that general
mistreatment of employees does not absolutely bar relief under West
Virginia statute comparable to Title VII), or the fact that other male
employees were not mistreated the same way he was, see Connecticut
v. Teal, 457 U.S. 440, 453-54 (1982) (holding that Title VII applies
to discrimination against an individual employee even when other
members of the employee’s class did not suffer discrimination).

   The record contains a genuine issue of material fact concerning
whether Ladendorf’s treatment of Leake was motivated by sex. Leake
proffered evidence that Ladendorf mistreated all his employees but
that only male employees were abused "in a sexual way." J.A. 94; see
Lack, slip op. at 15-16 (stating that male sexual harassment plaintiff
may be able to show gender animus through evidence that he was
mistreated more severely than female employees). Moreover, Laden-
dorf’s behavior toward Leake in particular involved sexual sugges-
tions and contact with Leake’s genitals. A reasonable fact finder
could infer from these circumstances that Ladendorf’s conduct was
based on Leake’s sex. See Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998) (stating that evidence of harassment in "sex-
specific and derogatory terms" may permit a finding of gender ani-
mus). Accordingly, we reverse the entry of summary judgment on this
issue.2

  2
   In light of the proffered evidence that Leake suffered more severe
abuse than other employees, we do not address his argument that Title
VII affords a remedy even when male and female employees suffer
harassment that is similar in nature or degree.
  We also do not decide whether Ryan’s can establish the affirmative
defense set forth in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Ryan’s asserted this defense in the district court, but the court did not
address this issue because it ruled in favor of Ryan’s on other grounds.
We prefer to let the district court examine the issue in the first instance.
6                 LEAKE v. RYAN’S FAMILY STEAKHOUSE
                                    B.

   Leake’s second claim is that the district court applied the wrong
standard to his retaliation claim. Leake contends that this error
requires us to reverse the grant of summary judgment on this claim
and remand for reconsideration under the correct standard. We con-
clude that summary judgment was appropriate even if the district
court applied the incorrect standard.

   The district court properly applied the McDonnell Douglas burden-
shifting analysis. This analysis, which derives its name from McDon-
nell Douglas Corp. v. Green, 411 U.S. 792 (1973), requires "the
plaintiff [to] establish a prima facie case of retaliation. The burden
then shifts to the employer to produce a legitimate nondiscriminatory
reason for the adverse action." Smith v. First Union Nat’l Bank, 202
F.3d 234, 248 (4th Cir. 2000) (citation omitted). Finally, the plaintiff
must demonstrate that the true reason for the challenged action was
retaliation. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct.
2097, 2106 (2000).

   Although the district court used the proper framework, Leake con-
tends that the court erred in the last step of its analysis by applying
the "pretext-plus" standard. Under this standard, which was the law
of this circuit at the time the district court rendered its decision, Leake
was required to demonstrate that the explanation proffered by Ryan’s
was pretextual and produce evidence (beyond his prima facie case)
that the real reason for his discharge was retaliation for his sexual
harassment complaints. See Vaughan v. Metrahealth Cos., 145 F.3d
197, 202 (4th Cir. 1998). Since the district court decided this case,
however, the Supreme Court has rejected the pretext-plus standard.
See Reeves, 120 S. Ct. at 2108-09. Under Reeves, "a plaintiff’s prima
facie case, combined with sufficient evidence to find that the employ-
er’s asserted justification is false, may permit the trier of fact to con-
clude that the employer unlawfully discriminated." Id. at 2109.

   Although the standard applied by the district court has since been
rejected, reversal is unnecessary. The district court concluded that
Leake could not establish either prong of the pretext-plus standard—
i.e., Leake failed to show that Ryan’s had offered a pretextual expla-
nation and failed to produce additional evidence that the actual moti-
                 LEAKE v. RYAN’S FAMILY STEAKHOUSE                    7
vation for his discharge was retaliation. These conclusions would
preclude relief under either the pretext-plus standard (which requires
both prongs) or the Reeves standard (under which either prong may
be sufficient).

   Having carefully reviewed the record, and having had the benefit
of oral argument, we agree with the district court that Leake’s prof-
fered evidence was inadequate as to both prongs of pretext-plus.
Thus, even under the Reeves standard, Leake’s retaliation claim fails.

                                  III.

   For the foregoing reasons, we hold that the district court erred in
granting summary judgment in favor of Ryan’s on Leake’s sexual
harassment claim; thus, we vacate that decision and remand for addi-
tional proceedings. We further hold that Leake’s retaliation claim fails
under Reeves (as well as under the pre-Reeves standard), and we
therefore affirm the entry of summary judgment as to that claim.

    AFFIRMED IN PART; VACATED AND REMANDED IN PART
