United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
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
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).
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.
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).
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?
Q: No hesitations about their safety?
A: Well, I've always got a fear about somebody's
Q: But because they're female?
A: I just think that's in our 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?
(Doc. 52-3, p. 57).
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.
were discussions about what woman employee Russ Scott would
be with during a particular week or who he would bring to the
"party barn." 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.
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.
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.
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,
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.
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 ...