In a memorandum filed yesterday, lawyers for Erin Johnson call WPP’s recent arguments to dismiss her discrimination lawsuit "absurd," arguing that the case should go to trial despite the company’s attempts to portray the suit as frivolous.
"While defendants apparently believe they are being clever by offering ‘completely innocent’ interpretations of Martinez’s comments, they are instead showing that they have no defense for these unwelcome comments repeated in the workplace, such as telling the plaintiff to come to him so he could ‘rape her in the bathroom,’" it states. "Defendants have reduced this argument to the absurd — rewriting comments that Martinez had denied he never made when they told the press that Johnson’s ‘allegations’ are ‘outlandish’ and ‘absolutely’ untrue."
Last month, WPP responded to the lawsuit filed in March against the holding company, J. Walter Thompson, and its former CEO Gustavo Martinez by arguing that Johnson’s suit did not support her claims that Martinez created a gender-based hostile work environment, or that the company retaliated against her for complaining. The motion contended that Johnson, chief communications officer for the agency, "twisted the facts and distorted the context" of Martinez’s comments and behavior.
Johnson’s suit alleges that Martinez engaged in a constant stream of racist and misogysntic comments in the workplace, much of it directed at her. A video clip showing Martinez making a joke about rape and African-Americans at a corporate meeting in Miami last year was entered in evidence in April.
Both WPP’s motion to dismiss the suit, as well as its argument against allowing the tape into evidence, relied in part on sworn affidavits from current JWT employees stating they either did not witness racist comments Johnson claimed were made by Martinez or that they did not find his behavior to be offensive or racist.
In yesterday’s filing, Johnson’s lawyers stated that the defendants are asking the court to rely on "declarations clearly written by counsel and signed by high level JWT employees." The filing also claims that WPP’s arguments are contradictory, claiming that Martinez’s comments were inoffensive, but were nonetheless being addressed by the agency’s head of human resources, Laura Agostini.
"What was Agostini ‘addressing’ if there was nothing wrong with Martinez’s comments?" says the 32-page filing from Johnson’s law firm, Vladeck, Raskin & Clark.
"Defendants’ arguments show that they believe the Court is bound not by the factual allegations in a complaint, but instead on a defendants’ spin on those allegations," states the filing.
The memorandum goes on to state that the defendants’ description of the "unwanted touching is, in itself, offensive," which characterizes her description as a "desperate attempt to ‘bolster her claim.’" The filing reiterates the suit’s allegations that Martinez repeatedly touched Johnson in an unwelcome and offensive manner, citing occasions where the former CEO grabbed her by the throat and back of the neck.
"While defendants can argue all they want to a jury about erogenous zones, or what is, a matter of law, ‘sexual’ or not, they cannot in good faith argue, on a motion to dismiss, that unwelcome touching by a CEO at work is to be reduced to a question of whether body parts are ‘sexual,’ rather than an examination of unlawful conduct."
The filing also contests the motion for dismissal’s suggestion that "there was some nefarious motive for the timing of the initial complaint." The timing was required, states the memorandum, because the defendants required that Johnson and other JWT executives sign legal documents stating that they were "unaware of any unlawful conduct at JWT" no later than Feb. 26.
"We will respond at the appropriate time in the court proceedings," said a WPP representative.
Johnson’s legal team was unavailable for comment at press time.