Lawyers for WPP and J. Walter Thompson today filed a motion to dismiss the discrimination lawsuit brought by Erin Johnson against them and former JWT chief executive Gustavo Martinez, saying she twisted facts and took Martinez’s statements out of context to "make a splash with the media."
"[I]t is clear that Plaintiff has twisted the facts and distorted the context to contrive gender-based hostile work environment and retaliation claims," the motion read.
Today’s 31-page filing, from law firm of Davis & Gilbert, also claims that Johnson, JWT’s chief communications officer, failed to satisfy the legal requirements of the statutes under which she filed. Johnson was not denied equal pay as a man because she complained about her working conditions, nor was she made to suffer as a result of her own race, the suit says.
"Defendants are moving now to dismiss the Complaint in its entirety," the motion said.
A lawyer for Johnson took issue with the motion, saying its portrayal of Martinez’s behavior as inoffensive — a characterization supported by affidavits from JWT executives — set too high a bar for employees seeking redress.
"They are suggesting a type of over-the-top requirement that I don’t think there is any support for," said Anne Vladeck of Vladeck, Raskin & Clark. "And the fact that some of the people didn’t find Martinez’s comments offensive doesn’t mean that a jury might not take a different view, particularly since that jury is not on their payroll."
WPP’s motion to dismiss argues that Johnson "did not feel she was subjected to a hostile work environment," citing a text message Johnson sent to Martinez on February 12 that told him she had rejected a job offer "because I am loyal to you and what you are doing. I felt like we had a good year together. So I hope I wasn’t wrong to stay. Lol."
The motion argues that when the allegations in Johnson’s complaint are put in the chronological order, "it is immediately noticeable that there are only a few incidents that might have relevance to these claims."
Johnson’s lawsuit, filed on March 10, alleges that Martinez repeatedly made racist and sexist remarks that made it "impossible for her to do her job" as chief communications officer, and that Martinez and the agency retaliated after she alerted management of her concerns by eliminating some of her duties, reducing her bonus and excluding her from meetings, among other allegations.
The filing argues that Johnson’s allegation about receiving a reduced bonus in 2014, "despite being distorted," does not support her retaliation claims. "This occurred before she complained about her bonus in ‘late April and early May 2015’ and before she allegedly complained in May 2015 about Martinez’s racist comments," it says.
WPP’s lawyers also argue that any alleged racist comments that Martinez may have made cannot be used to support Johnson’s retaliatory harassment claims. "Johnson never alleges the racist comments were directed at her as a result of her alleged complaint in May 2015 about Martinez’s racist comments, nor could she since they were made before she complained," says the motion.
In the discrimination suit, Johnson said she complained about racist and sexist comments Martinez allegedly made at a company meeting in Miami last May. A video showing Martinez making a rape joke at that meeting was filed as evidence in support of Johnson’s complaint last month. The motion filed today states, "The only reason for Plaintiff to make it publicly available on a website would be to try this case in the press and attempt to intentionally harm JWT." The filing also references affidavits filed by WPP last month from agency employees that were in attendance that "attested that the comments on the video were not racist, sexist or offensive as the Plaintiff has characterized them to be."
Additionally, the filing states that at least one of the sexist remarks that the suit claims Martinez made, "talk about the sex," is a phrase that "derives from a completely innocent French/Italian phrase ‘talk about sex of angels,’ which essentially means having a conversation with no practical consequences for your everyday life.’"
Jeremiah Iadevaia, one of Johnson’s lawyers at Vladeck, Raskin & Clark, however, points to other incidents cited in the complaint where Martinez used similar language that was clearly in the context of sexual behavior. "The complaint also alleges that ‘he loves sex, loves talking about the sex, and loves making sex with his wife’ and that has nothing to do with whatever phrase they say he was using," he said.
Johnson’s legal team said that they had not yet thoroughly reviewed the court filing to determine how to respond to the claims that they have not met the legal requirements, but that ultimately it’s up to a jury to decide whether or not Johnson has a valid discrimination suit.
"The kind of retaliation and discrimination that has been alleged in the compliant is illegal under all of those statures," said Deborah Raskin, a partner at Vladeck, Raskin & Clark. "Therefore there is no reason for the federal law not to hear all of it."