Johnson v. J. Walter Thompson U.S.A., LLC

224 F.Supp.3d 296

Erin JOHNSON, Plaintiff,

v.J. WALTER THOMPSON U.S.A., LLC, J. Walter Thompson Company LLC, WPP PLC, and Gustavo Martinez, Defendants.

16–CV–1805 (JPO)

United States District Court, S.D. New York.

Signed December 13, 2016

Debra L. Raskin, Jeremiah Joseph Iadevaia, Joshua Tarrant–Windt, Anne C. Vladeck, Vladeck, Raskin & Clark P.C., New York, NY, for Plaintiff.

Howard Jeffrey Rubin, Jennifer Tafet Klausner, Judith Kong, Sharon Sara Cohen, Davis & Gilbert LLP, Ricki E. Roer, Celena R. Mayo, Nancy V. Wright, Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY, Alexandra Manfredi, Frumkin & Hunter LLP, White Plains, NY, for Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge:

Plaintiff Erin Johnson filed this action against J. Walter Thompson U.S.A., LLC ("JWT USA"), J. Walter Thompson Company, LLC ("JWT Co.") (together, "JWT"), WPP PLC ("WPP"), and Gustavo Martinez (collectively, "Defendants") on March 10, 2016. (See Dkt. No. 1.) Johnson alleges that JWT and WPP discriminated and retaliated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and that Defendants unlawfully discriminated and retaliated against her under New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. ("NYSHRL" or "State Law"), and New York City Human Rights Law, Admin. Code of the City of N.Y. § 8–107 ("NYCHRL" or "City Law"). She also alleges retaliation for opposition to unlawful practices in violation of the Equal Pay Act, 29 U.S.C. 206(d) and 29 U.S.C. § 215(a)(3) ("EPA"), and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (" Section 1981"). Defendants move to dismiss each claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, their motions are denied.

I. Background

Unless otherwise noted, the following facts are taken from the Second Amended Complaint (Dkt. No. 62 ("Compl.")) and are assumed true for the purposes of this motion.

WPP is the world's "largest advertising company by revenue" and owns "a number of advertising, public relations, and market research firms," including JWT. (Compl. ¶ 23.) JWT is an international advertising agency with headquarters in New York. (Id. ¶ 24.)

Johnson joined JWT in 2005 and rose quickly through the ranks, receiving "substantial pay increases, bonuses, and equity awards." (Id. ¶¶ 27–28.) Within two years, JWT promoted Johnson from Director of Corporate Communications for JWT New York to Director of Communications for JWT North America, (id. ¶¶ 28–29), and by 2009, she was promoted again to Chief Communications Officer of JWT, her current role (id. ¶¶ 13, 30). Johnson's responsibilities include overseeing global internal and external communications, managing a core team of four employees, and overseeing JWT's regional communications and public relations teams around the world. (Id. ¶ 30.) In this new role, Johnson continued to succeed. She created and now leads JWT's Worldwide Communications/Public Relations Council; she developed and spearheaded important initiatives, including a blog, a digital talk show, and JWT's 150th anniversary celebration (id. ¶¶ 31–32); and she and her team have won multiple awards (id. ¶ 33).

When Johnson first assumed the position of Chief Communications Officer, she reported to former JWT Chairman and CEO, Bob Jeffrey. (Id. ¶ 30.) But on January 1, 2015, Defendant Gustavo Martinez succeeded Jeffrey as Worldwide Chairman and CEO. (Id. ¶ 36.) Martinez reported directly to WPP's CEO. (Id. )

Johnson alleges that Martinez "made it impossible for her to do her job." (Id. ¶ 39.) Johnson's allegations are summarized here, in relevant part.

On May 18, 2015, just a few months into Martinez's tenure, at an off-site retreat in Miami, Martinez told a group of approximately sixty employees that he found the hotel where they were staying to be "tricky" and full of "strange characters" who made him "think[ ] [he] was going to be raped at the elevator ... not in a nice way." (Id. ¶ 40.)

Approximately two days later, Johnson met with Martinez and told him that his comments about rape made her uncomfortable and were not acceptable. Martinez responded that she "was wrong" and that "American women are too sensitive." (Id. ¶ 42.) Less than half an hour later, Martinez walked over to Johnson's desk, situated among other employees in an open-office layout, and told her—in front of "numerous" employees—to come to him so he could "rape [her]" in the bathroom. (Id. ¶ 43 (alteration in original).) Later that day, Martinez burst into a meeting of several female employees, including Johnson, and asked Johnson which female staff member he could rape. (Id. )

Johnson alleges that these comments about rape and raping female employees at JWT were part of a broader pattern of conduct through which Martinez denigrated women through invocations of sex and rape. Also in spring 2015, Martinez apparently told another employee that a certain female senior global executive needed to be "hogtied" and "raped into submission." (Id. ¶ 44.) Johnson alleges that Martinez didn't like this woman because he believed that she is "too bossy" and "too American"; "she should shut up her mouth," he said. (Id. )

Martinez repeatedly referenced sex and made sexualizing comments about women, including Johnson. For example, following a conference call, Martinez asked a male business associate to leave his office because he and Johnson needed to talk about "the sex." (Id. ¶ 49.) The associate laughed, and Martinez turned to Johnson, saying, "Come on, let's go talk about sex now ... I am going to close the door." (Id. ) He further made sexual comments about other female employees. In the course of a business meeting, Martinez invited a female JWT Director to present, calling her "young, willing, and ready." (Id. ¶ 52.) During the same meeting, he commented that he "loves sex" and loves to talk about it. (Id. )

Martinez also specifically commented on women's bodies. After Johnson's pregnancy, Martinez made a "snide remark" about her eating an appetizer at a work event; the comment implied that Johnson should eat less and should be more self-conscious about her weight. (Id. ¶ 53.) He also told Johnson and other women employees that he hated a female Director at JWT because she "smells bad" and he "hate[s] her hair." (Id. ¶ 54.) Martinez told the women employees not to repeat what he had said. (Id. )

Johnson also alleges that Martinez repeatedly said certain women were "too bossy." (Id. ¶ 51.) He specifically stated Johnson was "so bossy" and called Johnson his "bossy boss." (Id. ¶ 46.)

Martinez also physically touched Johnson. (Id. ¶¶ 45–48.) "He often rub[bed] her shoulders and stroke [d] her face." (Id.¶ 45.) He has also "grabbed" her by the throat and the back of the neck multiple times, including when directing her to complete a task. (Id. ) For example, in March 2015, Martinez grabbed Johnson by the back of the neck and, while laughing, exclaimed, "[she is] so bossy," in front of Johnson's colleagues. (Id. ¶ 46.) Martinez proceeded to shove Johnson toward his office. (Id. ) In September 2015 and again in February 2016, Martinez took an apple Johnson was eating out of her hand, took a bite, and returned it to her. (Id. ¶¶ 47–48.) He indicated that she should keep eating the apple. (Id. )

Martinez made numerous comments about racial and religious minorities. For example, he told Johnson and other JWT leaders (including CEOs and Presidents of various regional offices) that Latino customs officers had given him a hard time because he was from Spain; he said one of the agents had a "Guatemalan monkey face." (Id. ¶ 56.) Martinez told the group that he would avoid the "black monkeys" and "apes" at customs because they "don't know how to use computers"—he would seek out agents with blonde hair and blue eyes going forward. (Id. ¶ 57.) On multiple occasions, he made disparaging comments about Westchester because there are "too many Jews" and he "hate[s] those fucking Jews." (Id. ¶¶ 59, 61, 62.) In one instance, an employee brought to Martinez's attention that she is Jewish, and Martinez responded, "yes, but you are half Catholic." (Id. ¶ 61.) At one point, when disappointed that he had not been profiled in the press, Martinez complained that the "Jew" at a competing firm knew how to "work" the press better. (Id. ¶ 63.)

Johnson raised concerns about Martinez's comments with the Chief Talent Officer, Laura Agostini. (Id. ¶ 67.) In mid-March 2015, Johnson met with Agostini to complain about Martinez's touching her. (Id. ¶ 68.) Agostini implied that the touching was not a problem because it was based on "affection." (Id. ) Then in April, Johnson met with a public relations executive at WPP while on a business trip to London. (Id. ¶ 69.) She described Martinez's grabbing her by the throat, as well as his other conduct, and asked for advice about how to deal with this behavior. (Id. ) The executive apparently responded that Johnson should not discuss her concerns with anyone at WPP and warned that she would be "exposed," her career would be adversely affected, and Martinez would "find out" if she continued to make complaints. (Id. )

Around this time, Johnson alleges that Martinez "significantly cut" Johnson's bonus for the previous year. (Id. ¶ 79.) The bonus amount was "well below the level it had been since 2011." (Id. ) Johnson raised the bonus issue with Martinez "on multiple occasions" between April and May 2015. (Id. ¶ 80.) She asked whether "all of the men who reported to him in the corporate bonus pool also received significantly lower bonuses than they had received for the previous year," but Martinez refused to answer and responded that Johnson was "spoiled." (Id. )

Martinez also stopped inviting Johnson to JWT Executive Committee meetings beginning after March 2015.¹ (Id. ¶ 81.) (When Johnson later, in January 2016, inquired why she was no longer invited, Martinez claimed that he "forgot" and...