Erin Johnson Lawyers Fire Back at WPP's Motion to Dismiss Lawsuit

Filing Says WPP Is Trying to Minimize Unlawfulness of Martinez's Acts

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Erin Johnson's lawyers are opposing WPP and JWT's motion to dismiss the lawsuit she filed against the parent company, agency and its former Chairman-CEO Gustavo Martinez.

WPP last month filed a motion to dismiss the lawsuit, which alleged a hostile work environment, citing a slew of allegedly racist and sexist comments Mr. Martinez made in front of several people, and interacted with Ms. Johnson in an inappropriate way via unsolicited contact and talking about sex.

The motion to dismiss, filed May 20, said: "It is clear that Plaintiff has twisted the facts and distorted the context to contrive gender-based hostile work environment and retaliation claims."

Now Ms. Johnson's lawyers are firing back in a filing today. "Although defendants, and their counsel, are fully familiar with the law governing motions to dismiss, they urge the Court to make factual findings -- such as jokes about rape, and comments about African-Americans being 'strange characters' with a penchant to steal and act inappropriately, are not 'offensive' as a matter of law," the filing said.

Last month, Ms. Johnson's lawyers told Ad Age that the defendants were punishing Ms. Johnson for "Doing the right thing" -- that is, calling out what they saw as discriminatory and unlawful behavior.

In today's filing, her lawyers said that while the motion to dismiss tried to offer innocent interpretations of Mr. Martinez's comments -- including the now well-known comment he made on video at a company meeting in Miami -- "they are instead showing that they have no defense for these unwelcome comments repeated in the workplace such as telling plaintiff to come to him so he could 'rape [her] in the bathroom,'" an allegation that appeared in the original suit.

A representative for WPP said, "We will respond to the latest filing at the appropriate time in the court proceedings."

Just after the suit was filed in March, Mr. Martinez said in a statement that the allegations were untrue and "outlandish." Shortly after that, WPP said that it had been conducting an internal investigation and found nothing to substantiate the claims. Then shortly after that, Ms. Johnson's lawyers filed a request to tack on the Miami video, which captured Mr. Martinez making comments about rape. WPP opposed the inclusion of the video, but eventually reversed its stance. The video has since been released publicly. WPP, in the meantime, had also hired an external firm, Proskauer, to investigate internally further.

Also from today's filing: "Defendants' description of plaintiff's claims of unwanted touching is, in itself, offensive." Rather than stick to the facts in the complaint and argue whether there is an argument, "corporate defendants characterize her description as a 'desperate' attempt to 'bolster' her claim," the filing continued.

The filing also said that WPP is trying to minimize Mr. Martinez's alleged actions. "Stating that the plaintiff did not allege that Martinez 'touched her' based on gender, or 'in a sexual or suggestive manner,' defendants omit the actual language" from the complaint, which said that he touched her inappropriately in an unwelcome and offensive manner. It also said that he often "rubs her shoulders and strokes her face" and on several occasions "grabbed Johnson by the throat and be the back of her neck."

The defendants "can argue all they want to a jury about erogenous zones, or what is, as a matter of law, 'sexual' or not, they cannot in good faith argue, on a motion to dismiss, that unwelcome touching by a CEO is to be reduced to a question of whether body parts are 'sexual,' rather than an examination of unlawful conduct."

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