This morning U.S. District Judge Paul J. Oetken dealt a fatal blow to efforts by the legal teams representing WPP and J. Walter Thompson to dismiss the lawsuit filed by chief communications officer Erin Johnson early this year.
In less than a month, the WPP/JWT must directly address her claims. If the parties involved forego a settlement, the deposition of witnesses and admission of evidence will follow.
By denying all requests for dismissal, Oetken has effectively forced the WPP team’s hand, requiring them to submit “a proposed case management plan” by next Monday and be prepared to have a conference with Johnson’s team the following Wednesday. The most important line in today’s 28-page letter is almost certainly this one: “Defendants shall file their answers to the complaint on or before January 3, 2017.”
After approximately 9 months, the case is nearing its end as WPP must address her claims directly. The legal team must also respond to Johnson’s request for a preliminary injunction to counter alleged “retaliatory behavior” that began upon her November return to the JWT New York office.
Oetken’s extended document doesn’t quite reveal what would be a very understandable sense of frustration with the case, but it does counter the opposing team’s requests for dismissal one by one.
The WPP team initially filed its motions for dismissal back in May, arguing that the case was not valid on the federal, state or city levels because Martinez’s alleged behavior, while potentially “offensive,” did not affect Johnson’s ability to do her job. And most of it occurred after she first complained to JWT chief talent officer Laura Agostini in May 2015 anyway, so they argued that it shouldn’t have been considered as part of the case since that initial complaint essentially froze Johnson in time as a “protected” employee.
Oetken rejected all these arguments.
After going through all the specifics of Johnson’s claims against Martinez — none of which the WPP team has directly denied — Oetken states that her case warrants “individualized consideration” due to “the diversity of results in such cases.” He goes on to address each point in the claim that JWT New York became a hostile work environment.
- Because Martinez allegedly “touched [Johnson] routinely” and made “threatening” comments, it’s reasonable for the court to consider whether his behavior constituted “a pattern wherein Martinez asserted physical power over Johnson without her consent”
- Despite the defense’s claims that Martinez’s comments were not inherently “sexual” in nature, the judge argues that they “suggest a workplace cut through with hostility”
- Here’s another key line regarding WPP’s claims that the very concept of a hostile work environment is “subjective”: “Defendants do not appear to contest the effect of the alleged conduct on Johnson herself.”
- Oetken then notes that Johnson’s claims that the work environment was especially hostile due to her gender are also reasonable to consider since Martinez would not have made similar statements to a male subordinate.
From the judge himself: “In threatening to ‘rape’ Johnson (even jokingly) and asking which other female employees he could rape, Martinez asserted power over Johnson in an explicitly sexualized and gendered form.”
Oetken is really just arguing that WPP cannot use technicalities to avoid directly addressing the Johnson team’s claims and that the case will proceed with no more related delays. Next week, the two firms will talk about schedules as the case moves forward — and on January 3rd the team must take a formal position on whether the incidents included in Johnson’s suit actually happened.
Unless WPP chooses to make a settlement very soon, each team will begin to line up its witnesses and supporting documents, further complicating the case. Oetken notes that WPP has not explicitly denied that Martinez’s alleged behavior could be considered hostile by some or that it did, in fact, have a discernible (if unspecified) effect on Johnson.
In short, the clock has run out … which is very good news for Johnson and the law firm of Vladeck, Raskin & Clark.