911 F.3d 874
7th Cir.2018Background
- Amy Swyear was hired as an outside sales representative by Fare Foods in June 2015 and fired on August 6, 2015; she sued for sexual discrimination, hostile work environment (sexual harassment), retaliation (Title VII), and breach of contract.
- Workplace conduct included frequent crude/offensive nicknames and sexualized gossip among male employees; Swyear overheard but was not personally targeted with offensive names.
- On July 15, 2015, coworker Russell Scott engaged in inappropriate, unwelcome conduct (drinking, close touching, suggesting sharing a bed, crawling into her bed, knocking on her door repeatedly); Swyear reported the incident to HR (Harsy) on July 23.
- Fare Foods investigated, spoke with Scott, determined no discipline was warranted but segregated Scott and Swyear; after reporting Swyear thereafter worked primarily in the office rather than on the road.
- Fare Foods documented multiple performance problems (tardiness, deviating from routes, improper use of company vehicle, traffic ticket) and gave performance reviews including a 30-day improvement period before termination.
- District court granted Fare Foods summary judgment on all claims; Seventh Circuit affirmed, finding harassment not severe/pervasive, no evidence of discriminatory motive or pretext, retaliation claim failed, and breach-of-contract/damages allegations undeveloped.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hostile work environment (sexual harassment) | Workplace was sexist and offensive (offensive nicknames, sexual gossip, Scott incident) creating hostile environment | Conduct was vulgar but occasional/overheard; Scott's conduct was isolated, nonviolent, and promptly addressed | No hostile work environment: not sufficiently severe or pervasive; plaintiff subjectively offended but objectively insufficient |
| Sex discrimination (discharge because of sex) | Termination followed her complaint and reduced road duties; alleged sex-based animus (comments by Porter) | Termination was for documented performance problems; plaintiff failed to meet legitimate expectations and offered no evidence of pretext | No discrimination: Fare Foods offered legitimate reasons; Swyear failed to rebut or show pretext |
| Retaliation for reporting harassment | Fired in retaliation for reporting Scott; causal connection to adverse action | Termination was based on performance; plaintiff did not meet employer expectations nor show pretext or causal link | No retaliation: plaintiff cannot show she met legitimate expectations or that reasons were pretextual |
| Breach of contract (employment agreement promises) | Written (unsigned) employment document promised outside sales role, company vehicle, and credit card; employer breached these promises | Plaintiff produced no evidence of breach causing damages; many alleged benefits were provided or not shown as withheld | No breach/damages: plaintiff failed to develop breach or damages theory; issues waived or unsupported |
Key Cases Cited
- Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir.) (guidance on severe or pervasive standard and examples of actionable physical conduct)
- Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887 (7th Cir.) (clarifying severity/pervasiveness standard vs. older "hellish" phrasing)
- Harris v. Forklift Systems, Inc., 510 U.S. 17 (U.S. Supreme Court) (totality-of-circumstances test for hostile work environment)
- Hilt-Dyson v. City of Chicago, 282 F.3d 456 (7th Cir.) (insufficiently severe isolated physical or verbal incidents)
- Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir.) (evidence-assessment approach outside rigid McDonnell Douglas framework)
- Coleman v. Donahoe, 667 F.3d 835 (7th Cir.) (elements for disparate-treatment employment claim)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. Supreme Court) (burden-shifting framework for discrimination claims)
- Duldulao v. St. Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314 (Ill. 1987) (Illinois law on when employee handbook/policy creates contractual rights)