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New York Post Ducks Suit Alleging Racial Bias

MANHATTAN (CN) - There is no evidence of severe race-based harassment in the newsroom of The New York Post, a federal judge ruled, dismissing a discrimination lawsuit brought against the News Corp.-owned paper by a pair of former journalists.

"Plaintiffs have not adduced evidence to show that they were treated differently than employees outside of their protected group because of their race," U.S. District Judge Lorna Schofield wrote.

Austin Fenner, who is black, claimed in a November 2009 lawsuit against the paper, its parent company, and editors Michelle Gotthelf and Daniel Greenfield that they were subjected to a "racially hostile work environment," and that that there hasn't been a single black editor on the Post's Metro Desk in almost 10 years.

Another black journalist, Ikimulisa Livingston, joined as a plaintiff, but Judge Schofield highlighted Monday how both plaintiffs conceded that they never heard their supervisors or co-workers utter racial epithets or make overtly racist remarks. The plaintiffs provided only second-hand accounts of their allegations, none of which concerned the named individual defendants.

"The second-hand stories of discriminatory comments sporadically directed at other employees, while not irrelevant to assessing the totality of circumstances, in this case do not show that plaintiffs were treated differently from employees in their protected group because of their race," Schofield wrote.

Fenner and Livingston had also taken issue with a Feb. 18, 2009, political cartoon in which two officers examine a chimp with bullet holes in its chest, lying dead in a pool of blood. In an apparent allusion to the United States' then-newly elected president, Barack Obama, one officer says to the other: "They'll have to find someone else to write the next stimulus bill."

Judge Schofield noted that the First Amendment protected the decision to run the cartoon.

The Post applauded her ruling.

"We are very pleased with the Court's decision to dismiss the Austin Fenner and Ikimulisa Livingston case in its entirety," a spokeswoman said. "As we have maintained for four years and as the federal Court held today in no uncertain terms, their claims of a hostile work environment, disparate treatment and retaliation were completely baseless. This decision represents total vindication for the Post as well as for its senior editors Col Allan, Michelle Gotthelf and Dan Greenfield, who were viciously attacked in the plaintiffs' mendacious complaint."

The Post had also faced racial bias claims from fired editor Sandra Guzman, but the spokeswoman said the case has been "resolved" in the last month.

Fenner and Livingston's case against News Corp. and the Post failed in part because the two defendants are separate corporations that are not "integrated for the purposes of the single employer doctrine," according to the ruling.

"For the most part, their office space is separate," Schofield wrote. "The two companies occupy separate floors in the same office building, accessible only to their respective employees - with the limited exception of shared conference rooms on the third floor, the News Corp. cafeteria and possibly certain offices on the eighth floor. The Post and News Corp. each pays separate rent for its respective office space."

Schofield added that the evidence is ultimately "insufficient to raise a question of fact that the operations of the Post and News Corp. were integrated for purposes of the single employer doctrine."

The Post, not News Corp., was responsible for hiring, firing, supervising and evaluating its reporters, according to the ruling.

In trying to argue that the Post and News Corp. were an integrated single employer, Fenner and Livingston pointed to various officials, like Rupert Murdoch, who served as chairman of both companies.

Schofield noted that such "dual roles, without more, do not demonstrate that News Corp. exercised control over plaintiff's employment."

As for the alleged hostile work environment created by a verbally abusive editor, the judge noted testimony showing that that editor yelled at other reporters, including white ones.

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