In the

United States Court of Appeals

For the Seventh Circuit

No. 18-2108

AMY SWYEAR,

Plaintiff-Appellant,

v.

FARE FOODS CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court for the 

Southern District of Illinois.

No. 3:16-cv-01214-SMY-RJD — Staci M. Yandle, Judge.

SUBMITTED OCTOBER 29, 2018* — DECIDED DECEMBER 26, 2018

Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.

BAUER, Circuit Judge. Amy Swyear filed this action against

her former employer, Fare Foods Corporation, alleging sexual

* After examining the briefs and record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and

record. See Fed. R. App. P. 34(a)(2)(C).
2 No. 18-2108

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

1

The parties do not agree on whether Porter was present at this meeting.

Porter claims he was not present but Swyear claims he was. However, Fare

Foods’ verified response to Swyear’s complaint in the Illinois Department

(continued...)
No. 18-2108 3

meeting, Swyear claims Porter indicated that she would be the

first female outside sales representative.2Swyear also claims

Porter expressed concern regarding her ability to perform

effectively in a field dominated by men at this 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?

1

 (...continued)

of Human Rights states, “Prior to her start date ... Ron Porter ..., Williams,

and Harsy met with Swyear on June 18, 2015, to discuss her employment

and Fare Foods’ expectations.”

2

Porter testified at his deposition that Fare Foods employed several female

outside sales representatives before Swyear.
4 No. 18-2108

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
No. 18-2108 5

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 representativeRussell 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. 

On 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
6 No. 18-2108

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. On the way back to their rooms,

Scott againtouched Swyear’s back which made her uncomfortable. Upon arriving at their rooms Scott made his way into

Swyear’s room. Scott crawled into Swyear’s bed and told her

he liked to watch movies and cuddle. Scott suggested Swyear

needed a “cuddle buddy” and that they could share a bed.

Swyear declined and told him she was tired and wanted to go
No. 18-2108 7

to bed. Scott left, but returned and knocked on Swyear’s door

multiple times. To avoid further contact with Scott, Swyear

pretended to be in the shower. Scott then called Swyear, but

she decided not to answer. Swyear answered a subsequent call

from Scott and he asked what she was doing. She responded

that she had taken a shower and was planning on going to bed.

Scott indicated he would meet Swyear for breakfast the next

morning and make sure she was okay, and then began mumbling incoherently. Scott called Swyear the next morning from

the road and claimed he knocked on her door to see if she

would drive him to Walmart because he was too intoxicated to

drive himself. The above-described interactions with Scott

offended Swyear and made her uncomfortable, but she always

felt in control of the situation.

On July 23, 2015, Swyear met with Williams and Harsy for

a performance review. During the review they discussed how

Swyear could improve her performance and remedy her

tardiness issues. Approximately thirty minutes after this

meeting Swyear reported to Harsy what happened between

her and Scott on July 15. Harsy investigated the incident,

calling Scott who confirmed most of the details. After speaking

with Scott, Harsy met with Porter and Williams and they

decided no discipline was warranted, although they did decide

to keep Scott and Swyear separated from then on.

Up to this point of her employment, Swyear had spent

roughly half of her time in the Du Quoin office and half on the

road. After reporting the incident, however, Swyear spent

almost all of her time in the office. Swyear also asserts that

afterreporting the incident herinteractions with Porter ceased.

Swyear claims she and Williams discussed plans for her to go
8 No. 18-2108

on the road on several occasions, but that Williams indicated

he needed approval from Porter and never provided her with

any further information.

Harsy and Williams held a second performance meeting

with Swyear on August 3, 2015. During this meeting they

gave Swyear 30 days to improve her performance. A detailed

discussion regarding her performance followed and Williams

reiterated Swyear must follow the schedule she was given and

discussed her continuing punctuality issues. Williams also

informed Swyear that she may only use company vehicles for

work-related activities and neverfor personal use. Despite this

warning, Swyear drove a company vehicle home after the

meeting. Williams called Swyear and asked her if she understood this was an impermissible use as outlined in their

conversation. Swyearimmediately returned the vehicle to Fare

Foods. 

On August 6, 2015, Fare Foods terminated Swyear. Swyear

filed a complaint in federal district court alleging sexual

discrimination, sexual harassment, and retaliation in violation

of Title VII, 42 U.S.C. § 2000e et seq., and breach of contract.

Both parties moved for summary judgment and the district

court granted Fare Foods’ motion and denied Swyear’smotion.

Swyear’s timely appeal asserts the district court was wrong

regarding each claim. Because we disagree, we affirm the

decision of the district court.

II. ANALYSIS

Ourreview of a district court’s grant of summary judgment

is de novo and all reasonable inferences are drawn in favor of

the nonmovant. Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir.
No. 18-2108 9

2018). The operative inquiry is whetherthe movant has shown

there is no genuine dispute as to any material fact and the

movant is entitled to a favorable judgment as a matter of law.

Fed. R. Civ. P. 56(a).

A. Sexual Harassment

A sexual harassment claim under Title VII requires Swyear

show: (1) her work environment was objectively and subjectively offensive, (2) the harassment she complained of was

based on her gender, (3) the conduct was so severe or pervasive as to alter the conditions of employment and create a

hostile or abusive working environment, and (4) there is a basis

for employer liability. Johnson v. Advocate Health and Hosps.

Corp., 892 F.3d 887, 900 (7th Cir. 2018); Scruggs v. Garst Seed Co.,

587 F.3d 832, 840 (7th Cir. 2009).3 A successful hostile work

environment claim based on sexual harassment need not

involve sexual conduct, but can be successful by showing the

work environment was sexist. Scruggs, 587 F.3d at 840 (7th Cir.

2009). Thus, this Court has held that a showing of “anti-female

animus” is sufficient to prevail in a hostile work environment

claim. Id.

This showing must still include evidence that the environment was “severe or pervasive”and requires proof of both an

objective and subjective component. Lapka v. Chertoff, 517 F.3d

3

It must be noted, as this Court has previously, that the phraseology of

this test often oscillates between multiple iterations, however, these

differences are without distinction. Johnson v. Advocate Health & Hosps.

Corp., 892 F.3d 887, 900 (7th Cir. 2018) (“Sometimes our cases phrase the test

differently ... [i]n the end we have concluded the inquiry is the same.”).
10 No. 18-2108

974, 983 (7th Cir. 2008). Here, Swyear testified she found the

environment at Fare Foods to be sexist and offensive establishing the subjective prong. But to determine whether a particular

work environment is objectively offensive, we must consider

the severity of the conduct, its frequency, whether it is merely

offensive as opposed to physically threatening or humiliating,

and whether it unreasonably interfered with an employee’s

work performance. Robinson v. Perales, 894 F.3d 818, 828 (7th

Cir. 2018).

To establish the standard plaintiff was required to meet the

district court stated “it has been long established that the

concept of sexual harassment is designed to protect women

from the kind of male attentions that can make the workplace

hellish for women.” While “hellish” was once the standard, it

is no longer. “The Supreme Court standard dictates that the

discrimination just be only so severe or pervasive so as to affect

the terms and conditions of employment. . . . This is a far cry

from hellish.” Johnson, 892 F.3d at 901 (citing Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21–22 (1993)). 

In making this determination we look to the totality of the

circumstance and ask whether everything together constitutes

a hostile or abusive environment. See Harris v. Forklift Systems,

Inc., 510 U.S. 17, 23 (1993) (“[W]e can say that whether an

environment is ‘hostile’ or‘abusive’ can be determined only by

looking at all of the circumstances”). We also assume employees are generally mature individuals with the thick skin that

comes from living in the modern world. Passananti v. Cook Cty.,

689 F.3d 655, 667 (7th Cir. 2012). As a result, employers

generally do not face liability for off-color comments, isolated
No. 18-2108 11

incidents, teasing, and other unpleasantries that are, unfortunately, not uncommon in the workplace. Id.

Swyear argues the environment at Fare Foods, as a whole,

was permeated with sexism sufficiently severe and pervasive

to create an abusive work environment. Although we recognize the environment at Fare Foods was at times inappropriate

and offensive, we do not believe Swyear has met this high bar.

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.” Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463

(7th Cir. 2002). The vulgar nicknames and the discussions of

Russell Scott’s romantic life fall into this category. The nicknames were not directed towards Swyear, nor were they used

to physically threaten or humiliate her. Rather, they were

crude and immature jokes that typically do not result in

employer liability. 

Additionally, the discussions of Russell Scott’s romantic

relationships were inappropriate and in poor taste, but they

also lacked severity and were infrequent. When asked how

often these discussions took place Swyear responded, “I

wouldn’t know that I would say at least once a week, but it

seemed like an ongoing joke.” Furthermore, no one ever

discussedthe topic with Swyear directly, she merely overheard

other employees joking about it. This militates a finding that

the conversations were “merely offensive,” as opposed to

physically threatening or humiliating to Swyear. In fact,

Swyear stated that she did not feel disrespected herself, but

was troubled by the disrespect the employees showed to each
12 No. 18-2108

other: “the all over disrespect I felt on behalf of everyone

towards each other was a little distasteful and rude.”

The same goes forthe nicknames. Swyear was not given an

offensive nickname herself, but merely heard people using

them while she was in earshot. This Circuit has aptly pointed

out, “The American workplace would be a seething cauldron

if workers could with impunity pepper their employer and

eventually the EEOC and the courts with complaints of being

offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them.” Yuknis

v. First Student, Inc., 481 F.3d 552, 556 (7th Cir. 2007).

Nor does the addition of Swyear’s interaction with Russell

Scott on July 15, 2015, necessitate a finding that the environment at Fare Foods was hostile or abusive. In Hostetler, this

Court discussed thedifficult line drawing this inquiry requires:

Cumulatively or in conjunction with other

harassment, such acts might become sufficiently

pervasive to support a hostile environment

claim, but if few and far between they typically

will not be severe enough to be actionable in and

of themselves. A hand on the shoulder, a brief

hug, or a peck on the cheek lie at this end of the

spectrum. Even more intimate or more crude

physical acts—a hand on the thigh, a kiss on the

lips, a pinch of the buttocks—may be considered

insufficiently abusive to be described as “severe” when they occur in isolation.

218 F.3d at 808. The incident with Scott reflected entirely

inappropriate behavior by a coworker, but does not constitute
No. 18-2108 13

sexual harassment alone or when considered with the abovedescribed incidents. Scott’s actions were not severe as compared with acts this Court has found sufficient to create a

hostile or abusive work environment. See e.g., Hostetler, 218

F.3d at 809 (plaintiff’s coworker held her face in his hands,

forced his tongue into her mouth and when she used her body

to shield herself he began to unfasten her bra, stopping only

when another employee entered the office); Smith v. Sheahan,

189 F.3d 529, 532 (7th Cir. 1999) (a coworker physically

assaulted the plaintiff and had a history of verbally abusing

female coworkers). Here, Scott’s actions were much less

threatening and severe—in particular, none of his actions were

forceful and Swyear testified that she always felt she was in

control of the situation. Cf. Hilt–Dyson, 282 F.3d at 463–64

(plaintiff's allegations that a supervisor rubbed her back,

squeezed her shoulder and stared at her chest during a

uniform inspection while telling herto raise her arms and open

her blazer were isolated incidents that, even when taken

together, did not create a hostile work environment); Patt v.

Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (plaintiff's complaints of eight gender-related comments during

course of her employment, including that “the only valuable

thing to a woman is that she has breasts and a vagina,” was

insufficient to demonstrate a hostile work environment). Scott

certainly crossed far beyond the line of acceptable workplace

etiquette, but his actions were not as offensive as this Court has

required to constitute a hostile or abusive work environment.

Additionally, Scott’s inappropriate actions happened only

once, were not part of a pattern of harassment, and were

immediately and sufficiently responded to by Fare Foods. 
14 No. 18-2108

Swyear also failed to show the environment at Fare Foods

interfered with her ability to do her job. To the contrary,

Swyear testified the main impediment to her job performance

was conflicting directives:

I had to be honest that from the very beginning

that something was off and I didn’t—you know,

I was getting direction from so many different

people that was conflicting and ... I’m getting,

you know, not punished, but talked to about

something that the other person would say it

was okay. It was just very confusing and I

don’t ... like the chaos.

Accordingly, because we find that the environment at Fare

Foods as a whole was not sufficiently severe or pervasive to

constitute a hostile work environment, and because Swyear

failed to put forth evidence showing it adversely affected her

job performance, we affirm the decision of the district court to

grant summary judgment in favor of Fare Foods. 

B. Sexual Discrimination

Title VII makes it unlawful for an employerto discharge an

employee because of that person’s sex. To succeed on a sexual

discrimination claim, a plaintiff must establish (1) she is a

member of a protected class, (2) she was meeting the legitimate

performance expectations of her employer, (3) she suffered an

adverse employment action, and (4) another similarly situated

individual not in the protected class was treated more fairly.

Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). The

parties have not framed their arguments using the McDonnell

Douglas burden shifting framework, but rather have simply
No. 18-2108 15

disputed whether sufficient evidence has been produced to

support a jury verdict. Following Ortiz v. Werner Enterprises,

Inc., 834 F.3d 760, 764 (7th Cir. 2016), this Court had made clear

that “McDonnell Douglas is not the only way to assess circumstantial evidence of discrimination.” David v. Bd. of Trustees of

Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).

Without the McDonnell Douglas framework the question is a

familiar one: “has the non-moving party produced sufficient

evidence to support a jury verdict of intentional discrimination?” Id. 

The parties agree that Swyear is a member of a protected

class (a woman) and that she suffered an adverse employment

action (being fired). The parties dispute, however, whether

Swyear was meeting Fare Foods’ legitimate performance

expectations and whether Swyear has produced evidence that

another similarly situated individual that was not a member of

the protected class was treated more favorably. Because we

agree with Fare Foods on the former issue, we will not discuss

the latter.

Fare Foods attached to their summary judgment motion an

exhibit detailing Swyear’s performance issues.4

Fare Foods

documented that Swyear was late on a particular day early in

her employment causing deliveries to be backed up for her and

a coworker. On another occasion,Williams noticed Swyear was

4

Some of the dates appear to be incorrect in this document for some

actually predate Swyear’s hire date.
16 No. 18-2108

still at a hotel at 12:30 p.m.5

and called Swyear to inquire as to

why she was not following the route designed for her to meet

specific customers, an issue that would be a common one

during Swyear’s time at Fare Foods. Williams wrote, “[Swyear]

needs to understand we have a process and when the route is

set up it needs to be followed as set up.” On July 14, Swyear

was delivering frozen goods to a customer when she decided

to stop at her home before completing the delivery—this made

the delivery late. On the same day Swyear, after seeking

permission, met her mother at a show in Crescent City, Iowa.

However, the following work day Swyear stayed there until

2:00 p.m., again failing to follow the route set up by Fare

Foods. On July 27, Swyear was issued a ticket for being on her

cell phone while driving. Swyear was in her personal vehicle,

but Williams was concerned the ticket would adversely affect

Fare Foods insurance and asked Swyear to take care of it. On

July 30, Williams set up a plan for Swyear to visit customers in

two locations, one in Salem, Illinois, and the other in

Greenville, Illinois. When Williams checked in with Swyear at

9:30 a.m. she was not on the road, even though she was

expected to be working by 8:00 a.m. Williams checked her

location at 10:20 a.m. and discovered that she was in Belleville,

Illinois, which was in the opposite direction from the agreed

upon locations. Swyear did not arrive to one of the locations

set up by Fare Foods until 2:00 p.m.

5

 Fare Foods equipped the company vans with devices so they were able

to monitor the movement of the outside sales representatives, which is how

Williams was able to determine Swyear’s location at any given time. 
No. 18-2108 17

Furthermore, as described above, Swyear had performance

evaluations conducted by Williams and Harsy on July 23, 2015,

and August 3, 2015. During the July 23, 2015, meeting they

discussed how Swyear could improve herperformance andher

tardiness issues. The August 3 review also addressed these

same issues and resulted in Swyear being given 30 days to

improve her performance. Furthermore, directlyafterWilliams

informed Swyearthat she could only use company vehicles for

work-related activities, Swyear drove a company van home.

These issues taken together are convincing evidence that

Swyear was not meeting Fare Foods’ legitimate expectations.

Swyear advances several arguments to rebut this evidence,

none of which dispute the veracity of the above-described

incidents. First, Swyear argues Fare Foods changed Swyear

from an outside sales representative to an inside sales representative following the incident with Scott, thus changing Fare

Foods’ expectations in her performance without her knowing.

Swyear effectively asserts this secret change in expectations

resulted in illegitimate expectations, thereby excusing her

failure to prove the “legitimate performance expectations”

prong of the sexual discrimination test. However, Swyear does

not show any instances in which she was held to the standard

of an outside sales representative while she was supposed to

be performing the functions of an inside sales representative,

nor does she point to any evidence that the confusion over

Swyear’s role led to her not meeting Fare Foods’ legitimate

expectations. Most of the above-described incidents are

examples of Swyear failing to meet Fare Foods’ expectations

while she was undeniably an outside sales representative.

Thus, Swyear has not demonstrated that her failure to follow
18 No. 18-2108

directives or her frequent tardiness were a result of confusion

as to which position she held. 

Swyear also claims “this Court’s jurisprudence allows the

plaintiff to challenge the basis of her adverse actions as the

court need not accept the employer at its word.” True enough,

but Swyear has not pointed to any evidence in the record that

implies Fare Foods’ reasons for firing her were pretextual, nor

has she pointed to any evidence that implies the real reason she

was fired was due to her sex. The fact that Swyear has not

produced any evidence that she was meeting Fare Foods’

legitimate expectations orthat the reasons Fare Foods gave for

firing her were pretextual are fatal to her sexual discrimination

claim. Accordingly, we affirm the district court’s dismissal of

this claim.

C. Retaliation

Swyear’s retaliation claim meets the same fate as her sexual

discrimination claim for many of the same reasons. Title VII

forbids employers from retaliating against employees for

engaging in statutorily protected activities by opposing an

unlawful employment practices or participating in the investigation of one. 42 U.S.C. § 2000e–3(a); see also Lord v. High

Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016). To

determine whether Swyear’s retaliation claim should survive

summary judgment, we ask whether the evidence produced

would permit a reasonable factfinderto conclude the plaintiff’s

sex caused the discharge. Ortiz v. Werner Enters., Inc., 834 F.3d

760, 765 (7th Cir. 2016). 

There are two ways of proving a prima facie retaliation claim

and each requires proving different elements. A plaintiff
No. 18-2108 19

opting for the “direct” method must present evidence that

(1) she engaged in a protected activity, (2) she suffered an

adverse action, and (3) a causal connection exists between the

two. Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 728 (7th Cir.

2003). The “indirect” method, as the name implies, allows the

plaintiff to establish a prima facie case without establishing a

causal link. This method requires a plaintiff show (1) she

engaged in a protected activity, (2) she performed her job

duties according to her employer’s legitimate expectations,

(3) she suffered an adverse action, and (4) she was treated less

favorably than similarly situated employees who did not

engage in the protected activity. Id. The indirect method falls

under the auspices of the McDonnell Douglas burden-shifting

framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under this framework, if a plaintiff is able to establish

a prima facie case, the burden shifts to the employer to provide

a legitimate, non-discriminatory reason forthe adverse action.

Khowaja v. Sessions, 893 F.3d 1010, 1015 (7th Cir. 2018). Then to

prevail, Swyear must present evidence that the reasons

proffered by Fare Foods are pretextual. Id. 

As was discussed in more detail above, Swyear can point to

no evidence that she was meeting the legitimate expectations

of Fare Foods, nor has she produced any evidence that indicates the reasons Fare Foods fired her are pretext. As a result,

herretaliationclaim is fatally deficient and summary judgment

was appropriate.
20 No. 18-2108

D. Breach of Contract

Finally, Swyear argues Fare Foods is liable for breach of

contract underIllinois law. An employment agreement signed

by an at-will employee can create valid and enforceable

contractual rights if the traditional requirements for contract

formation exist. Duldulao v. St. Mary of Nazareth Hosp. Ctr., 505

N.E.2d 314, 318 (Ill. 1987). UnderIllinois law exists a presumption that an individual hired without a fixed term is an at-will

employee, which can be overcome by demonstrating the

parties contracted otherwise. Id. That “otherwise” requires a

plaintiff show: (1) the policy contained a promise of such

clarity that an employee would reasonably believe an offer has

been made, (2) the statement was disseminated to the employee in a manner that makes the employee aware of its

content and reasonably believe it was an offer, and (3) the

employee accepted the offer by commencing or continuing to

work after learning of the policy. Id. 

Swyear argues Fare Foods breached her employment

agreement by reassigning her to the position of inside sales

representative, by failing to provide her with a company credit

card, and by taking her company vehicle. In what Swyear

purports to be the parties’ employment agreement, although

it is not signed by either party or dated, the aforementioned

benefits are contemplated. The first page of the agreement

states that Swyear will work as an outside sales representative.

The second stated she would be provided with a company

credit card and company vehicle. 

The parties do not dispute that Swyear has satisfied the test

in Duldulao, although Swyear points to no case law finding
No. 18-2108 21

contractual rights in similar employment provisions nor did

the Court find any in its independent research. Nevertheless,

the Court need not decide that issue because even if Swyear

satisfied Duldulao, that would only establish that the relationship at issue is not merely at-will. 

Under Illinois law, to prevail on a breach of contract claim

the plaintiff must show: (1) the existence of a valid and

enforceable contract, (2) she substantially performed the

contract, (3) the defendant breached that contract, and

(4) damages resulted from the alleged breach of contract. Reger

Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 764 (7th Cir. 2010)

(citing W.W. Vincent & Co. v. First Colony Life Ins. Co., 814

N.E.2d 960, 967 (Ill. App. Ct. 2004)). Appellants spend about

two pages discussing the breach of contract issue, and most of

it was devoted to discussing why the employment was not atwill. Thus, the Court was given no guidance as to how the

appellants would be able to prove breach or damages.

It is unclear here how appellant would prove damages for

Fare Foods’ failure to provide Swyear with a company credit

card during her employment. Nor is it readily apparent how

Swyear would show her reassignment resulted in damages.

She was never officially reassigned, but merely ceased traveling after the incident. Her salary was not changed and it

appeared many of her duties in the office were the same.

Finally, appellants do not explain how Fare Foods breached the

part of the agreement that Swyear would be provided with a

company vehicle. The record is replete with instances of

Swyear using a company vehicle. Fare Foods did require

Swyearto only utilize a company van for employment-related

activities, but at no time did Fare Foods forbid Swyear from
22 No. 18-2108

using it. Because Swyear failed to develop these issues at all in

her briefs, despite the fact that Fare Foods’ main argument in

their brief was that Swyear had not alleged damages, she has

waived the issue. See Echo, Inc. v. Timberland Machines &

Irrigation, Inc., 661 F.3d 959, 967 (7th Cir. 2011) (three sentence

argument that failed to explain how the contract was breached

was “too skeletal, and amounted to waiver”). 

III. CONCLUSION

Because we find the environment at Fare Foods as a whole

was not sufficiently severe or pervasive to constitute a hostile

work environment, we affirm the district court. Further,

because Fare Foods set forth numerous legitimate reasons for

termination that Swyear failed to rebut with evidence, the

district court was correct in granting summary judgment in

favor of Fare Foods for Swyear’s sexual discrimination and

retaliation claims. Finally, because Swyear failed to establish

the elements of breach of contract, summary judgment was

appropriate for this claim as well. AFFIRMED.