West Virginia Record

WHEELING – Mountaineer Casino Racetrack & Resort has won a lawsuit brought by a former table games dealer who alleged she was the victim of sexual harassment.

On May 20, U.S. District Judge John Preston Bailey, of the Northern District of West Virginia, granted summary judgment in favor of the racetrack in Stacey Stewart’s lawsuit against it. Stewart alleged she was the subject of sexual comments, rumors and touching.

“(T)he alleged touching by the supervisors was neither severe nor physically threatening or humiliating,” Bailey wrote.

“The plaintiff merely states that the supervisors briefly touched her back while talking to her or showing her something on the table while she was working. In addition, the plaintiff does not claim that the touching incidents were accompanied by any threats, intimidation or humiliation.

“The plaintiff was questioned during her deposition regarding these touching incidents. When she was asked how the touching by any of the individuals was sexual in nature, she responded that no one has the right to put a hand on her back and it is sexual to touch someone on the small of the back; however, the plaintiff’s subjective opinion is not sufficient to establish that the touching was sexual in nature and based upon her status as a female.”

Stewart began working as a dealer at Mountaineer on March 18, 2010. Almost a year later, she reported to her immediate supervisor that she overheard inappropriate sexual comments being made about herself and other female employees by supervisors.

However, she said she did not want to take her complaints to the human resources department.

Three weeks later, she reported that things had improved, but a week later she requested a meeting with HR to inform the department that the comments were continuing.

Also at the meeting, she complained a rumor was circulating that she and another dealer were caught having sex on the premises. Eventually, the HR department conducted an investigation and provided Stewart with the results and actions being taken to stop circulation of the rumor.

In May 2011, she made three complaints about supervisors touching her. All three said a supervisor touched her back.

Later that month, she was issued two corrective action notices - one for an overpayment issue on Roulette and one for parking outside a designated employee area.

On June 8, 2011, the West Virginia Lottery Commission issued a violation notice to the racetrack because of a conversation Stewart had while off-duty with a co-worker who was dealing Roulette. She was fired six days later.

Her lawsuit, filed April 2, 2012, in Hancock County Circuit Court, alleged she was fired in retaliation for reporting the sexual harassment. The case was removed to federal court.

The following are passages from Bailey’s decision as he addressed Stewart’s claims:

-Sexual harassment as to the rumor – “This court notes that it is difficult for a plaintiff to sustain a Title VII claim based upon an employer’s alleged failure to quell rumors. This is particularly true when the rumor pertains to two individuals – one male and one female – because the plaintiff cannot demonstrate that the rumor was circulated based upon her sex, which is a required element of a sexual discrimination/sexual harassment claim.”

-Sexual harassment as to the alleged comments – “(T)his court notes that the plaintiff points to no corroborating evidence regarding these comments; in fact, the individuals that she listed as witnesses informed the human resources department that they did not witness such comments.”

-Sexual harassment as to the touching – “(T)his court finds that such touching neither meets the required severe or pervasive element of such a claim nor supports a finding of a hostile work environment.”

-The retaliatory discharge claim – “(T)he plaintiff has failed to establish that there was a causal link between her sexual harassment complaints and the termination of her employment.”

-Intentional infliction of emotional distress – “(T)he plaintiff visited Mountaineer Park when she was not required to be there for work during the time that she alleges she was experiencing her emotional distress at work. In addition, the plaintiff cites to no medical or psychological evidence in support of these claims.”

Larissa C. Dean, Eric E. Kinder and Christina S. Terek of Spilman Thomas & Battle represented the casino.

Stewart was represented by Daniel W. Cooper of Cooper & Lepore in Carnegie, Pa., and Jacob M. Robinson, Sr. of Robinson Law Offices in Wheeling.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.