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

United States District Court, S.D. New York

July 18, 2017

ERIN JOHNSON, Plaintiff,
v.
J. WALTER THOMPSON U.S.A., LLC, J. WALTER THOMPSON COMPANY, LLC, WPP PLC, and GUSTAVO MARTINEZ, Defendants.

          MEMORANDUM AND ORDER

          JAMES C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Erin Johnson, brings this action against J. Walter Thompson U.S.A., LLC, J. Walter Thompson Company, LLC (together, "JWT"), WPP PLC (together with JWT, the "Corporate Defendants"), and Gustavo Martinez, alleging that the all defendants discriminated and retaliated against her on the basis of her gender in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq., and the New York City Homan Rights Law, Admin. Code of City of N.Y. § 8-107, and that the Corporate Defendants did so in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ejt seq. ("Title VII") . The plaintiff further asserts that the defendants retaliated against her for opposing unlawful practices in violation of the Equal Pay Act, 29 U.S.C. §S 206(d) and 215(a)(3), and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981.

         The Corporate Defendants now move for an order compelling Ms. Johnson to produce documents concerning her efforts to secure alternative employment. Concurrently, Mr. Martinez moves for an order permitting him to serve a non-party subpoena on a company with which the plaintiff previously communicated about potential employment. Both motions are granted.

         Background[1]

         Since 2009, Ms. Johnson has been the Chief Communications Officer of JWT, an international advertising agency based in New York. Johnson, 224 F.Supp.3d at 301. In 2014, Mr. Martinez joined JWT as its Global President. (Second Amended Complaint (“SAC”), ¶ 35). When he became Chairman and CEO on January 1, 2015, the plaintiff began reporting directly to him. Johnson, 224 F.Supp.3d at 302. According to Ms. Johnson, Mr. Martinez created a hostile work environment by making sexually suggestive remarks both directly to her and in her presence and by engaging in unwanted physical touching. Id. at 302-03. After the plaintiff raised concerns about this conduct to JWT's Chief Talent Officer, Mr. Martinez allegedly reduced her bonus, stopped inviting her to JWT Executive Committee meetings, cancelled the annual meeting of one of Ms. Johnson's programs, and began assigning away responsibilities that had been hers. Id. at 303-04.

         On February 22, 2016, Ms. Johnson's attorneys sent a letter to the defendants indicating that she believed that she was a victim of discrimination and retaliation. Id. at 304. She was then placed on paid leave pending completion of an internal investigation. Id. at 304-05. On March 10, 2016, Ms. Johnson commenced this action. Thereafter, Mr. Martinez issued a statement through WPP asserting that “there is absolutely no truth to [plaintiff's] outlandish allegations.” Id. at 305 (alteration in original). WPP sent a memorandum to its senior executives and clients and to the media stating that it had been investigating the plaintiff's allegations and had “found nothing.” Id. JWT issued a press release stating that “Martinez has asserted that [the plaintiff's] allegations are false.” Id.

         In the meantime, Ms. Johnson had allegedly been contacted by TBWA Worldwide (“TBWA”), another advertising agency, about working there. Ultimately, that position was filled by Anaka Kobzev, one of the plaintiff's subordinates, and Ms. Johnson discussed this development with Mr. Martinez in a string of text messages on February 12, 2016. (Memorandum in Support of Defendants' Motion to Compel the Production of Information and Documents (“Corp. Def. Memo.”) at 3 & n.2). In pertinent part, Ms. Johnson stated, “Hey. To brag a little. They came after me first for this role and I didn't go because I am loyal to you and what you are doing. I felt like we had a good year together. So I hope I wasn't wrong to stay. Lol.” (Memorandum of Law in Support of Defendant's Proposed Subpoena to Non-Party TBWA (“Martinez Memo.”), Exh. A at JWTJOHNSON000000210).

         In the course of discovery, the Corporate Defendants have sought information relating to Ms. Johnson's efforts to find new employment. In particular, they have made the following requests:

Interrogatory No. 23: Identify all persons (including companies or employers) with knowledge or information, personal or otherwise, concerning Plaintiff's efforts to find work (including without limitation work to be performed as an employee, consultant or independent contractor) from June 25, 2014 to the present, including without limitation any applications of employment or contact with TBWA Worldwide.
Document Request No. 17: All documents concerning Plaintiff's efforts to find new employment or any consulting, freelance or other paid work since January 1, 2014 to the present, including without limitation any contact she had with TBWA Worldwide.
Document Request No. 18: All documents concerning Plaintiff's efforts to mitigate any damages she allegedly suffered as a result of the conduct alleged in the Complaint.

(Corp. Def. Memo. at 3 n.5). After the plaintiff objected to this discovery and the parties were unable to come to a resolution, the Corporate Defendants filed their motion.

         Similarly, counsel for Mr. Martinez proposed to serve a subpoena on TBWA seeking:

1. All documents and tangible objects for the period June 1, 2014 to present in your custody or control pertaining to Erin Johnson (a/k/a Erin Oettinger or Erin Johnson Oettinger) in connection with the position “Global Head of Communications” at TBWA currently held by Anaka Kobzev, including but not limited to job applications, cover letters, resumes, portfolios, notes, emails, letters, correspondence, calendar invites, meeting schedules, interview notes, contracts, nondisclosure agreements, and written agreements.
2. All documents and tangible objects for the period June 1, 2014 to present in your custody or control pertaining to Erin Johnson (a/k/a Erin Oettinger or Erin Johnson Oettinger) in connection with any position of employment at TBWA, including but not limited to job applications, cover letters, resumes, portfolios, notes, emails, letters, correspondence, calendar invites, ...

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