Lawyers for WPP and J. Walter Thompson today said they would drop their objection to admitting as evidence a tape of former CEO Gustavo Martinez making a rape joke if the faces of all JWT executives—except Martinez—were blurred.
"[I]f the Court orders that Plaintiff edit out the faces of the people in the Video (other than Martinez), Defendants have no objection to the filing of the Video since they have argued from the outset that the words Martinez spoke on the Video are already in the Amended Complaint and they did not create a hostile work environment," they wrote in a memo to the court.
The suggestion came in a 14-page letter responding to the most recent memo from lawyers for Erin Johnson, who is suing WPP, JWT and Martinez in federal court for sexual harassment. For nearly a month, the two sides have been arguing whether the tape of Martinez, filmed during a JWT retreat in Miami in 2015, should be allowed as evidence.
Lawyers for the defense, who initially argued that the tape should not be admitted because it contained propriety agency information, wrote today that those concerns have been alleviated, and that their one remaining objection to the use of the tape is the privacy of the JWT executives who were caught on camera. If those faces were edited out, they said (a solution they suggest the plaintiff should have proposed) they would no longer object to it being made public.
"In light of the Declarations from women, minorities and others in the room that show that the comments on the Video were, in context, not offensive, the Video actually demonstrates the misleading nature of the allegations in the Amended Complaint," the memo said, referring to previously filed affidavits from several JWT executives who appear on the tape saying that the joke was harmless and was merely intended to "ease the tension."
"Plaintiff, however, has conveniently ignored this crucial context and continues to contend, without any basis whatsoever, that the comments were racist and created a hostile," said the memo, which was filed by Davis & Gilbert, the law firm representing JWT and WPP.
Additionally, the defendants’ lawyers today filed a joint affidavit from many of the same JWT executives refuting Johnson’s claims that Martinez had used racial slurs at a dinner during the Miami retreat. Specifically, the executives—including JWT NY president Lynn Power, CEO of the Americas Stefano Zunino, and CCO of NY and Canada Bret Choi—say they did not hear Martinez refer to customs agents as "black monkeys," or "apes" or "Guatemalan Monkey Face."
"These allegations are not true because together we are all the people who were at the table, other than Gustavo and Ms. Johnson, and not one of us recalls hearing Gustavo make these comments," reads the joint statement.
Update: On Tuesday, Johnson’s lawyers filed a letter to the court arguing against WPP’s proposal to file the video with redactions. The letter cites that the defendants had more than enough time to make that suggestion before filing a motion for a protective order on March 29, and that yesterday’s reply brief represents "a complete reversal in their previous position."
"If defendants had a genuine desire to reach a compromise regarding the video, they had ample opportunity to make such a proposal long before filing their reply brief. Defendants received a copy of the video on March 22, 2016," stated the letter.
The letter argues that by asking to blur the faces of employees pictured at the meeting, the defendants are contradicting their earlier position that Johnson was the only one at the meeting that found Martinez’s alleged joke about being raped offensive.
"Indeed, defendants know that the video contradicts their contention that only plaintiff found Martinez’s purported joke about rape offensive. The video shows that some audience members’ expressions do not reflect the amusement as defendants suggest," the letter continued.
Lawyers for Ms. Johnson did not immediately return a call for comment.
Johnson filed the suit against WPP, JWT and Martinez in federal court in New York on March 10th alleging that Martinez repeatedly made racist and sexist comments that rendered it "impossible for her to do her job." According to the suit, Martinez said, "Come here [Johnson] so I can rape you in the bathroom" in front of colleagues; occasionally grabbed her by the neck or throat when speaking to her; and more than once referred to "fucking Jews."
WPP, JWT and Martinez are all named as defendants in Johnson’s case. Martinez, who is being represented by a separate law firm, denied the charges. WPP, after initially saying an internal investigation had failed to corroborate any of the claims, has maintained that they are continuing to investigate. (WPP retained Bettina Plevan, a prominent labor lawyer and partner at New York firm Proskauer Rose, to conduct an independent investigation starting March 14th).
Today’s memorandum says Johnson continues to stick by her assertions that Martinez created a hostile work environment despite mounting evidence that others at the firm did not share her experience.
"When the true facts come out in the course of this litigation, this house of cards that Plaintiff has built will come tumbling down," it read.
Johnson remains on administrative leave from JWT. Martinez resigned one week after the lawsuit was filed, and was replaced as chief executive by Tamara Ingram, the former WPP chief client team officer.