Swyear v. Fare Foods Corp.

911 F.3d 874
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 26, 2018
DocketNo. 18-2108
StatusPublished
Cited by156 cases

This text of 911 F.3d 874 (Swyear v. Fare Foods Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swyear v. Fare Foods Corp., 911 F.3d 874 (7th Cir. 2018).

Opinion

Bauer, Circuit Judge.

Amy Swyear filed this action against her former employer, Fare Foods Corporation, alleging sexual discrimination, sexual harassment, and retaliation in violation of Title VII, and breach of contract. After the parties each moved for summary judgment, the district court granted Fare Foods' motion on all claims. For the reasons set forth herein, we affirm the decision of the district court.

I. BACKGROUND

We present the facts in a light most favorable to Swyear. When a disputed fact arises we note it, but because this case was decided against Swyear on summary judgment, we must construe the facts in a light most favorable to her. See e.g., Hostetler v. Quality Dining, Inc. , 218 F.3d 798, 802 (7th Cir. 2000).

Fare Foods Corporation is in the business of selling concession products and equipment. It is owned by Ron and Laura Porter and headquartered in Du Quoin, Illinois. The company employs both inside and outside sales representatives, the operative distinction being that inside sales representatives work in an office setting in Du Quoin, whereas outside sales representatives travel to various locations, at least part of the time, to serve clients and drum up new business.

Amy Swyear was interviewed several times for a position as an outside sales representative at Fare Foods. On June 18, 2015, Swyear met with Scott Harsy, the company's human resources supervisor, Robbie Williams, the company's sales manager, and Ron Porter to discuss the position.1 At this meeting, Swyear claims Porter indicated that she would be the first female outside sales representative.2 Swyear also claims Porter expressed concern regarding her ability to perform effectively in a field dominated by men at *878this meeting. However, Porter later testified that he liked the idea of hiring a woman because they could get men to do things like unload the delivery trucks or make sales:

Q: How does [a sales representative's assisting drivers with deliveries] relate to having sex appeal?
A: Female gender, in my opinion, have the ability to make males unload trucks for them.
Q: Did you say that to some of your employees prior to Amy being hired?
A: No.
Q: Did you feel Amy had that ability?
A: Yes.
Q: Did you feel that female sales representatives also had the ability to make sales towards male customers?
A: Yes.
Q: Is that one of the reasons why you hired Amy?
A: No.

Porter also testified to the following:

Q: Did you have any impressions or hesitations towards having a female staff member being on the road alone?
A: No.
Q: No hesitations about their safety?
A: Well, I've always got a fear about somebody's safety.
Q: But because they're female?
A: I just think that's in our genetics.
Q: Genetics?
A: Yes. We're supposed to be the protector of the female gender. We are the male.
Q: So you feel that the men of the world are supposed to protect the women?
A: I think the Lord believed that, yes.
Q: Have you sent female sales staff on the road alone before?
A: Yes.

Nevertheless, the aforementioned meeting resulted in the parties agreeing Swyear's first day of work at Fare Foods would be June 22, 2015.

Shortly after her employment began, Swyear noticed the environment at Fare Foods was at times unprofessional. Male employees were often referred to by offensive nicknames such as "Bitchy Ritchie" and "Nips." One female customer who ran a concession called "Conti's" and was thought by the employees of Fare Foods to be a challenging customer was given the nickname "Cunty." Another female customer was referred to as "Big Tittie Blonde Carnie." The staff also openly discussed the sexual activities of outside sales representative Russell Scott and disparaged the women he associated with. Williams, the manager of the sales team, attempted to pretend these conversations were not happening, putting his fingers in his ears to demonstrate he was blocking it out. Swyear overheard coworkers talk about how one female employee dressed inappropriately and also testified that she was reprimanded by Williams for wearing shorts to the office on one occasion.

Swyear testified that Porter was present when many of the above-described inappropriate conversations took place, but was not sure whether he actually heard them. Porter testified that he was aware of the offensive nicknames, and may have used them on occasion, but could not recall any specific instances in which he did. Swyear did not tell anyone she was offended by the above-described incidents, nor did she make any formal or informal complaints. Swyear did tell Williams that the environment was not overly sexualized, but it was aggressive, disrespectful, and rude, and she also related her surprise at the disrespect the employees directed at Williams himself.

*879On July 15, 2015, Swyear met Russell Scott at a county fair near East Moline, Illinois. The two walked through the fair together to meet with customers. One customer asked what they had planned for the day. Scott responded that they were getting a hotel room. When the customer responded it was none of his business, implying he understood the statement to mean Scott and Swyear planned on sharing a room, Swyear immediately pointed out they would be staying in separate rooms.

After completing their work at the fair, Swyear sought permission from Williams to move toward her next location, but Williams told Swyear to stay with Scott to receive additional training. So the two made their way to a hotel in Bentonville, Iowa, and after checking in, discovered their rooms were adjacent to one another. Scott followed Swyear into her room claiming he wanted to check the air conditioner because the room was warm. To avoid spending time with Scott in her room, Swyear suggested they head to dinner. On the way to dinner Scott began acting in a way that implied he believed the two were on a date-touching Swyear's arm, pulling her chair out for her to sit, placing his hand on her lower back, standing in close proximity. Scott had three beers during dinner and told Swyear several times that he was single. According to Swyear, Scott also became unsteady on his feet and began slurring his words as a result of the drinks.

After dinner the two took a self-guided tour of the hotel. When they walked by the pool Scott suggested they go for a swim. When Swyear stated that she did not bring a swimsuit, Scott responded by implying they could go skinny dipping. Swyear declined this offer.

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911 F.3d 874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swyear-v-fare-foods-corp-ca7-2018.