By: Sarah Burke and Mitchell Riese
In Cowley v. Lynch, four FBI special agents alleged that the FBI had created a hostile work environment, discriminated against them based on their sex in denying them transfers, and had retaliated against them by reorganizing their department in order to break up their “clique.” The FBI argued that the restructuring and transfer denials were due to legitimate department needs and that a hostile work environment had not been established. The district court agreed with the FBI, finding that stray comments made around the agents did not rise to the level of hostile work environment and that the reasons for the restructuring and transfer were legitimate.
Julia Cowley, Robert Drew, Susan Kossler, and Kimberly Quesinberry were all employed as Supervisory Special Agents with the National Center for the Analysis of Violent Crime (NCAVC) in the Crimes Against Adults (CAA) division prior to the department’s reorganization. All of the women agents, Cowley, Kossler, and Quesinberry, alleged that during their time with the CAA they had been denied assignments over men, and were told they needed to either have children or discuss their children more by their supervisors. Drew, the only male, alleged that he was retaliated against because of his support for the women.
Further, all of the agents stated that the supervisor called them “prima donnas” and “princesses” and that a book for pick-up artists on how to sleep with women was distributed throughout the department. A coworker also allegedly commented about “getting laid” and recounted a time where he convinced a waitress to expose her breasts by acting as a porn producer during an official deployment. After experiencing these comments and being subjected to the restructuring of the department and denied transfers, the agents filed suit alleging hostile work environment, sex discrimination, and retaliation.
On the hostile work environment claim, the district court believed that the comments about having children, the distribution of the book, the labeling of the group as “princesses” and “prima donnas”, and the discussion by another coworker about “getting laid” and having a waitress show him her breasts were not enough to demonstrate an environment that was permeated with discriminatory intimidation, ridicule, and insult. Similarly, the district court believed that even assuming these comments were made frequently, they were not sufficiently “severe and pervasive” to constitute a hostile work environment.
The district court next examined the agents’ claims that they had been discriminated against because of their sex. The Court found that the agents had failed to show that similarly situated males had been treated more favorably through transfers because the entire unit had been affected by the reorganization. Similarly, the district court found that the reorganization was a managerial decision due to department needs. Further, the agents still continued to be employed in the NCAVC following the reorganization, only the subject matter of their assignments was altered and therefore the agents could not show an adverse employment action.
The court concluded F.B.I. has articulated legitimate nondiscriminatory reasons for these denials: budgetary restrictions and the resultant cancellation of three job announcements. Because the agents could not show they had suffered an “adverse employment action,” they could not state a claim for retaliation for filing an EEOC claim.
This decision shows that the standard for establishing a hostile work environment, which requires the plaintiff to show that the harassment was “severe and pervasive,” can be difficult to establish. There clearly was some harassment in this case, and another judge, in our view, could have come to the opposite conclusion and found that there was a hostile work environment.
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