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Swyear v. Fare Foods Corp.

United States District Court, S.D. Illinois

April 27, 2018

AMY SWYEAR, Plaintiff,


          STACI M. YANDLE United States District Judge

         Plaintiff Amy Swyear, a former employee of Defendant Fare Foods Corporation, filed this action alleging sexual discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Fare Foods has moved for summary judgment (Doc. 46). Swyear has also moved for summary judgment (Doc. 52). Both parties filed responses (Docs. 47 and 54). For the following reasons, Fare Food's motion is GRANTED and Swyear's motion is DENIED.


         Fare Foods provides concession products and equipment to the concessionaire industry as well as brick and mortar clients such as schools (Doc. 52-2, pp. 19-20). It is owned by Ron and Laura Porter and is headquartered in Du Quoin, Illinois (Doc. 52-2, p. 18). On June 18, 2015, Plaintiff Amy Swyear accepted an offer of at-will employment with Fare Foods as an Outside Sales Representative ("OSR"). She began working as an OSR on June 22, 2015. Plaintiff worked for Fare Foods for approximately six weeks before her termination (Doc. 46-1, p. 84).

         At the time Swyear was hired, Fare Foods employed three Inside Sales Representatives ("ISRs") and three OSRs (Doc. 52-2, pp. 159-160). Both ISRs and OSRs were sales employees. ISRs serviced clients mostly from the home office, while OSRs traveled to various locations within the Midwest to serve Fare Food clients at fairs and conventions (Doc. 52-2, p. 57). Robert Williams was the supervisor of both ISRs and OSRs (Doc. 52-2, p. 76). The senior sales staff member was an ISR and was responsible for training all sales employees - both OSRs and ISRs. Id. at p. 57. While being trained, OSRs were expected to work regular hours like the ISRs. Id. at p. 85.

         Swyear was not the first woman hired as an OSR (Doc. 52-2, p. 159). However, she was the only female OSR during her time at Fare Foods. Id. The other two OSRs were male and the three ISRs were female (Id. at p. 160).

         During his deposition, Ron Porter testified that he believed women were effective OSRs and had been in the past (Doc. 52-3, p. 57). Sales representatives are expected to help the drivers with deliveries, and in his opinion, women had the ability to make men unload the delivery trucks and also had the ability to make sales (Doc. 52-3, pp. 55-56). Porter had no hesitations about hiring a female for the position:

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.

(Doc. 52-3, p. 57).

         During her deposition, Swyear testified that between June 22, 2015 and July 14, 2015, there were several instances when she felt uncomfortable at work (Doc. 46-1, p. 77). She noted that her male and female co-workers referred to certain men and a woman by nicknames she found offensive (Doc. 46-1, p. 85). For example, she was introduced to one male truck driver known as "Bitchy Ritchie" and another male driver who was called "Nipps." Id. One female concessionaire who ran a concession named "Conti's" was called "Cunty" by some of the male and female employees. Id. at p. 81. Swyear testified that Porter was present when some of these nicknames were used - although she could not tell if he was within earshot. Id. at p. 82.

         There were discussions about what woman employee Russ Scott would be with during a particular week or who he would bring to the "party barn[1]." Id. at pp. 81-82. There were also jokes made about Scott's women not having any teeth. Id. At one point, Williams "put his finger in his ears and [said] I don't want to hear any of them" - as if to say he was "not participating in this." Id. at p. 83.

         Swyear and her coworkers talked about one young employee who they all believed dressed inappropriately. Swyear saw Porter present when these discussions were taking place around four to six times. Id. at p. 86.

         Swyear did not tell anyone that the nicknames or jokes offended her, nor did she make any formal or informal complaints. Id. at pp. 86-87. Regarding her co-workers' behavior, Swyear told Williams that the behavior "wasn't in a sexual connotation" but was aggressive, disrespectful, and rude. Id. at p. 87. She also told Williams that she thought her co-workers were disrespectful to him: "I did say I can't believe these people talk to you that way. That was - just more hostile - I mean they weren't all in a sexual nature, but there was a lot of rough talk" and disrespect. Id. at p. 88.

         On July 15, 2015, Swyear and Russ Scott met at a fair in or near East Moline so that Scott could introduce her to customers. Id. at p. 91. Prior to their meeting, Swyear knew Scott's name, but had never met him. Id. Following their visit with customers, both Swyear and Scott checked in to the Lodge Hotel in Bentonville, Iowa (Doc. 22, ¶ 37).

         After checking in and inspecting their respective rooms (which were located next to each other), Scott followed Swyear into her room on the pretense of checking the air conditioner because the room was warm. Id. at p. 107. This made Swyear uncomfortable, so she ushered Scott to the hotel restaurant for dinner. Id. At dinner, Swyear found it offensive that Scott pulled out her chair for her and she did not want him to think they were on a date. Id. at p. 112. She also felt uncomfortable when Scott told her several times that he was single. Id. Scott had three beers during dinner. Id. at pp. 111-112.

         After dinner, Swyear and Scott took a tour of the hotel. Id. at p. 115. While passing the swimming pool, Scott asked her if she wanted to go swimming - implying that they could go skinny dipping. Id. at p. 116. She declined his offer. Id. On the way back to their rooms, Scott touched her back which made her uncomfortable. Id. at p. 117. Swyear testified that "generally, it was more of a ...

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