Eleftheria Parpis
Dec 14, 2016

Judge denies WPP's motion to dismiss Johnson discrimination suit

CEO Gustavo Martinez created "a workplace cut through with hostility," says judge.

(L-R: Erin Johnson, Gustavo Martinez
(L-R: Erin Johnson, Gustavo Martinez

US District Judge J. Paul Oetken has denied WPP’s motion to dismiss Erin Johnson’s discrimination suit against the holding company, J. Walter Thompson and former chairman and CEO Gustavo Martinez, finding that Martinez’s actions created "a workplace cut through with hostility."

"Considering the alleged conduct in context, Johnson has pleaded enough to support a plausible inference that an objectively hostile work environment existed," said Oetken in a 28-page ruling released Tuesday morning. 

The defendants had argued that Johnson’s claim should be dismissed because Martinez’s comments did not meet the standard for harassment, and that Johnson, JWT’s chief communications officer, did not sufficiently demonstrate that she had suffered retaliation for complaining about him.

"[I]t is clear that Plaintiff has twisted the facts and distorted the context to contrive gender-based hostile work environment and retaliation claims," read a motion filed by WPP’s law firm, Davis & Gilbert, in May. 

Today, Oetken rejected those claims. "Certain of Martinez’s comments, viewed in the context of his physically intimidating behavior and repeated sexually explicit and demeaning statements, suggest a workplace cut through with hostility," he wrote.

Johnson’s attorney, Anne Vladeck of Vladeck, Raskin & Clark, said she was "very pleased" with Judge Oetken’s order. "We obviously agree with the judge and look forward to getting to the merits of the case, which we have talked about from the very beginning." 

Today’s ruling hinged in part on Johnson’s allegations that Martinez routinely touched her without consent. In her initial suit, filed on March 10 in federal district court in Manhattan, she recounted an incident in which Martinez grabbed her by the throat and back of the neck when directing her to complete a task. Another time, he allegedly took an apple Johnson was eating out of her hand, took a bite out of it and returned it to her. 

"These allegations of physical contact plausibly allege a pattern wherein Martinez asserted physical power over Johnson without her consent," Oetken wrote in today’s memo.

The Court takes into account, he added, that "Martinez’s repeatedly touching Johnson" as "part of a broader effort to intimidate her physically because of her sex." 

The judge also rejected the defendants’ claim that Martinez’s comments about rape and sex were "merely a lack of civility" and "not gender-motivated," because some of them were made in mixed company.

Such comments, Oetken wrote, must be viewed as part of an overall pattern rather than in isolation. "Martinez’s multiple comments alluding to his raping Johnson and other female employees color and make relevant his other, more generalized invocations of rape and sex, even if those comments were made in the presence of men or were not exclusively targeted at women," he wrote.    

Even if his threats to rape Johnson were intended as a joke, "Martinez asserted power over Johnson in an explicitly sexualized and gendered form," Oetken wrote. 

Overall, Oetken made it clear that Martinez’s behavior cannot be divorced from the realities of workplace gender dynamics. "[T]hrough his words and his actions, Martinez allegedly exhibited hostility toward the idea of women exercising power in the workplace," he continued. As an example, the judge cited Johnson’s claim that Martinez made references to her "bossy" character. It "can be understood not as a sex-neutral insult but rather as invoking a double standard for men’s and women’s leadership in the workplace." 

Oetken also rejected WPP’s claims that Johnson had failed to show that the company had retaliated against her for complaining about Martinez. "Johnson alleges that each of the actions—including her placement on leave, the halting of her team’s development and the smearing statements in the press—immediately followed her lawyer’s letter and the filing of the initial complaint in this action," he wrote. "She thus satisfies the relatively loose causation requirements." 

Following an eight-month paid leave of absence, Johnson returned to work at JWT on Nov. 2nd. However, within days of her return, her lawyers asked the court for an injunction to stop the "highly visible punishment" she was allegedly being subjected to in the office, including being made to sit in front of the agency’s director of human resources all day. WPP’s lawyers immediately denied the veracity of those claims. Though Oetken did not address the injunction request in today’s memo, he did order both sides to come prepared to discuss it in court on Dec. 22, when the two sides will meet to discuss their case management plans (he ordered the defendants to submit their case management plans by Dec. 20).

WPP, JWT and Martinez have until January 3 to file their responses to the overall complaint.

A spokesman for JWT downplayed the ruling, saying the motion to dismiss had always been a long shot. "Motions to dismiss employment cases are not often granted, particularly since the law requires that all facts be presumed for the sake of the argument in a light most favorable to the other side," he said via email. "We remain confident that we will prevail at trial."

Debra Raskin, a member of Johnson's legal team, also expressed confidence, and said much more will revealed as the case progresses. "The motion has set the outline of what needs to be proved and we are quite satisfied that we will be able to prove all of that and more," she said.  "A complaint doesn’t have every last piece of evidence in it. That will come out in discovery."

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