Erin Johnson’s Legal Team Files Memorandum in Opposition to Motion for Dismissal

By Erik Oster 

Several weeks ago, the legal teams of JWT, WPP and former CEO/chairman Gustavo Martinez each filed a motion to dismiss Erin Johnson‘s lawsuit against Martinez. Unsurprisingly, Johnson’s lawyers responded today by filing a memorandum in opposition to Martinez’s motion to dismiss the complaint, contending that JWT and WPP’s response to Johnson’s complaints show that “if you complain of discrimination, you will be attacked publicly, be branded as a liar and ostracized.”

The 23-page memorandum attempts to refute the various arguments made in the aforementioned motion to dismiss the case. Among the arguments in that motion for dismissal, Martinez’s lawyers contended that a text sent by Johnson to Martinez ten days before her legal team let WPP and JWT know that they would be filing a suit was evidence that Martinez’s behavior did not create a hostile work environment. In the message, Johnson told Martinez she had turned down a job offer, choosing instead to stay loyal to him and JWT. Johnson’s lawyers reject the “snippets of a text” as invalidating her argument that Martinez created a hostile work environment.

There is no question that “going along to get along” is common in these cases,” they wrote in the memorandum. “Plaintiffs decision not to quit in reaction to a dispute with a more than decade-long employer is neither unusual, nor relevant to this motion.”


Regarding the text in question, the memorandum adds, “Discovery will show the full texts, emails, and the like among many relevant individuals and a jury can decide the significance of this text at that time, with a full record.”

The document also objects to the notion that there weren’t enough instances of offending behavior on Martinez’s part to constitute a case against him. “Corporate defendants list six such incidents [of offensive comments by Martinez],” the document states. “That behavior, without more, could state a claim for a hostile environment. In addition, however, defendants ignore that those allegations are far from describing isolated incidents, but instead are examples of sexist, humiliating and threatening behavior that was typical of Martinez.”

Johnson’s legal team also alleges, contrary to Martinez’s claims, that “despite Johnson’s repeatedly following ‘her employer’s well-established discrimination prevention policies,’ the discrimination continued, escalated and provoked retaliation and defendants’ ridicule.” (In the motion for dismissal, Martinez’s team claimed to find it “‘fascinating’ that Johnson did not use “her employer’s well-established discrimination prevention policies.”)

The memorandum also addresses the claims made by Martinez’s legal team that Martinez’s behavior didn’t amount to sexual harassment which created a hostile work environment by stating his comments, including retaliatory remarks made when Johnson objected to his previous behavior by stating “The sex-based nature of Martinez’s offensive comments and conduct frequently was explicit.”

“For example, when Johnson told Martinez that his comments about rape were not acceptable in the workplace, he responded by telling her that ‘American women are too sensitive,'” the document goes on. “Shortly thereafter, he grabbed Johnson around the neck with his arm, telling her to come to him so that he could rape her in the bathroom.” 

Additionally, Johnson’s lawyers address the claim that “all of the ‘complained of adverse actions occurred in 2015’ before plaintiffs first protected activity in February 2016.”

“Of course, just because Martinez says something does not make it so,” the document states, alleging that there were “multiple instances of protected activity in both 2015 and 2016, and many examples of adverse actions thereafter.”

For more on the most recent filing in the case, see Adweek’s coverage, which includes the document in full.