Ex-Reporters' Race Bias Claims Against Post Dismissed

, The Litigation Daily

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Ruling in favor of The New York Post and its defense lawyers at Kasowitz Benson Torres & Friedman, Southern District Judge Lorna Schofield on Monday dismissed a racial discrimination lawsuit two black former Post reporters brought against the tabloid. The decision comes one month after Schofield refused to toss a similar racial discrimination suit brought by a onetime Post editor.

Schofield acknowledged in Fenner v. News Corp., 09 Civ. 09832, that the staffers "endured a raucous work environment" in which supervisors "yelled and cursed at reporters." But she ultimately concluded that the plaintiffs' hostile work environment claim couldn't survive summary judgment.

"Plaintiffs have not adduced evidence to show that they were treated differently because of their race, much less of severe or pervasive race-based harassment," Schofield wrote. "Plaintiffs concede that they never heard their supervisors or coworkers utter a racial epithet or make an overtly racist remark."

A former Post editor named Sandra Guzman, who identifies as black and Puerto Rican, sued the tabloid in November 2009, alleging she was subjected to a hostile work environment. A few days later, a black reporter named Austin Fenner, who had recently been terminated from a job as a reporter for the Post's city desk, brought his own employment discrimination case against the paper. A few days after that, a Post staffer named Ikimulisa Livingston joined Fenner's case. The same law firm, Thompson Wigdor, represents all three plaintiffs.

The three employees raised similar grievances. For instance, all three complained about racist comments by editorial higher-ups. Guzman and Fenner both said they were fired after complaining about a controversial Post cartoon that drew charges of racism.

After a lengthy discovery period, Schofield refused to grant summary judgment to the Post in the Guzman case on Oct. 29. The judge dismissed Post parent News Corp. as a defendant, however (NYLJ, Oct. 30).

In Fenner and Livingston's case, Schofield noted that the Post had non-retaliatory reasons for firing the two. Fenner scored poorly on performance reviews and Livingston worked another job as a "mystery shopper" when she was supposed to be writing about New York courts for the Post, the judge wrote.

"We're very pleased with the court's decision to dismiss the case in its entirety," said Mark Lerner, a partner at Kasowitz Benson, who represented the Post.

Kenneth Thompson of Thompson Wigdor had represented the plaintiffs in both cases against the post. But Thompson was elected Brooklyn district attorney in November and will take office in January. Douglas Wigdor, the firm's other founding partner, now represents the plaintiffs.

In an e-mail, Wigdor said he was reviewing Schofield's latest decision and "exploring our options."

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