Seventh Circuit: Crude conversation, sexual approach did not constitute workplace harassment

By Record News | Jan 2, 2019

CHICAGO – Neither a sexual approach by a fellow employee nor generally crude conversation in a workplace constitutes harassment, U.S. Seventh Circuit appeals judges ruled on Dec. 26. 

They affirmed District Judge Staci Yandle, who granted summary judgment against St. Clair County resident Amy Swyear last April. 

Like Yandle, they found Fare Foods in DuQuoin responded appropriately to a hotel incident and fired Swyear for legitimate reasons. 

They found employees invented nasty nicknames and spoke disrespectfully, but that no one aimed any barbs at Swyear. 


Justice William Bauer wrote, “This court has held that occasional vulgar banter tinged with sexual innuendo of coarse or boorish workers generally does not create a work environment that a reasonable person would find intolerable.” 

Fare Foods provides products and equipment to concessionaires, schools and other customers. 

Swyear worked as a sales representative there for six weeks in 2015. 

At a deposition for a lawsuit she filed against Fare Foods in 2016, Swyear said there were several instances when she felt uncomfortable. 

According to her testimony, male and female employees referred to persons by offensive nicknames. 

Swyear also described an encounter with sales representative Russ Scott in East Moline whom she met so he could introduce her to customers. 

Her testimony indicated they checked into a hotel in Iowa, with rooms side by side; she took him to the hotel restaurant; she said he drank three beers and told her several times he was single; on the way to the rooms, he touched her back. 

She said he entered her room and suggested sleeping together. She said she told him she was tired; he left but knocked several times. 

She said he called and she didn’t answer; he called in the morning to tell her he had already left. 

At a meeting a week later, administrative supervisor Scott Harsy gave Swyear specific directions to improve her work and told her to stop being late. 

Thirty minutes later, she told him about Russ Scott. 

Harsy and owner Ron Porter decided not to discipline Scott, but they decided Scott would no longer work with Swyear.

 About a week later, Harsy called her into another meeting about performance. 

Her supervisor, Robbie Williams, put her on a 30-day improvement plan. 

Harsy told her to drive the van only for business, yet she drove it home. 

Three days later, Williams told her it wasn’t working out. 

She retained Kevin Kaufhold of Belleville for her lawsuit against Fare Foods. 

Fare Foods moved for summary judgment in 2017, and Swyear moved for summary judgment last January. 

Yandle ruled in favor of Fare Foods last April. 

“Although Scott’s behavior was inappropriate and tinged with sexual innuendo, it does not rise to the level of actionable sexual harassment,” Yandle wrote. 

“Scott’s behavior made Swyear uncomfortable, but she always felt in control of the situation. 

“All of the comments Swyear complains of were made to or about other employees and overheard by Swyear. 

“No inappropriate comments were ever directed at her.” 

Yandle wrote that the concept of sexual harassment is not designed to purge the workplace of vulgarity. 

She found no evidence that Swyear met expectations. 

“She merely testified that she found her own performance acceptable,” Yandle wrote. 

Swyear appealed to the Seventh Circuit, where judges found Yandle’s reasoning so solid that they dispensed with oral argument. 

“Scott’s actions were not severe as compared with acts this court has found sufficient to create a hostile or abusive work environment,” Bauer wrote. 

He wrote that Scott’s actions happened once, and that Fare Foods responded immediately and sufficiently. 

He wrote that employees are generally mature individuals with the thick skin that comes from living in the modern world. 

“As a result, employers generally do not face liability for off color comments, isolated incidents, teasing and other unpleasantness that are, unfortunately, not uncommon in the workplace,” he wrote. 

He also wrote that Swyear was not given an offensive nickname. 

Although Yandle didn’t list all the times Swyear caused delays or failed to stick to schedules, Bauer did. 

“The fact that Swyear has not produced any evidence that she was meeting Fare Foods’ legitimate expectations or that the reasons Fare Foods gave for firing her were pretextual are fatal to her sexual discrimination claim,” Bauer wrote. 

Justices Frank Easterbrook and Michael Scudder concurred. 

Shari Rhode of Carbondale represented Fare Foods. 

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