Thompson denied chance to try case before taking over as Brooklyn DA

November 13, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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Ken Thompson, Brooklyn’s district attorney-elect, has been denied an opportunity to try his last case as a practicing trial attorney before ascending to his new political role.

Thompson, named partner at Thompson Wigdor, was lead attorney in a bias suit against the New York Post. Sandra Guzman, a former associate editor at the Post, a subsidiary of News Corporation, claimed that she was subject to discrimination and harassment based on her sex and race and was subsequently fired in retaliation for her complaints.

Arguments on the case are scheduled to take place on Jan. 13. Thompson submitted a request for the trial to be heard on an “expedited basis,” allowing Thompson to argue the high-profile case in December before he takes office.

Lawrence Pearson, an attorney at Thompson Wigdor, argued that Thompson “will no longer be able or permitted to engage in private practice, and he will be required to leave his position as a partner at the firm. Therefore, if the trial were not to begin until 2014, Guzman would unnecessarily be deprived of her choice of trial counsel.”

Manhattan Federal Judge Lorna Schofield noted that “[w]hile the Court is sympathetic to Ms. Guzman’s position, the first available date on the Court’s trial calendar is Jan. 13, 2014,”

Guzman, a black Hispanic female, alleged that the Post’s work environment was rife with sexual innuendos and racially insensitive comments. One supervisor, commented on how “sexy” and “beautiful” Guzman looked each morning and would “habitually look… her ‘up and down’ as though she were ‘naked,’ leered at her body in an overtly sexual manner and licked his lips,” Guzman asserted. Another columnist, it is alleged, would greet Guzman by singing “I want to live in America” in a Spanish accent.

Matters came to a head when Guzman complained about an offensive political cartoon in the Post that appeared to compare President Barack Obama to a monkey. Guzman was fired shortly thereafter on the grounds that the paper could no longer justify her high annual salary of $137,807 due to a decline in advertising revenues.

Though the reason for termination appeared innocuous on its face, Schofield found evidence sufficient, “to permit a reasonable jury to conclude that defendants stated reasons for terminating [Guzman’s] employment were pretextual.”

In its motion to dismiss, the New York Post contended that an employee’s discomfort with a political cartoon, for example, is not sufficient cause for an employment discrimination lawsuit, as the newspaper is protected by the First Amendment’s guarantee of freedom of speech and freedom of the press.

The Post has the right to “publish editorial content, even offensive editorial content,” Schofield noted. However, the content was not at issue, rather they way in which the Post handled Guzman’s complaint about the cartoon’s content.

“However, while Guzman cannot bring an employment discrimination claim against the Post for publishing an allegedly racist cartoon,” Schofield wrote, “her hostile work environment claim also encompasses the way that the Post dealt with the publication of the Cartoon and the issues that arose after the Cartoon was published, including the increased racial tensions in the office.”

Guzman filed suit against the New York Post, its parent company, the News Corporation, and the Post’s editor in chief, Col Allan. Schofield removed News Corporation from the case, asserting that while News Corporation owns the New York Post, it maintains an existence completely separate from the — meaning that News Corporation is not involved in the printing or distribution of the Post’s daily newspaper and that the companies maintain separate financial records.

The claims against Allan and the Post were allowed to proceed because, in Schofield’s estimation, the comments by, and behavior, of Allan—and by extension his employer the New York Post — “ostensibly contributed to [Guzman’s] hostile work environment.”