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Wesley v. CBS Radio Services, Inc.

United States District Court, W.D. Washington, Seattle

September 19, 2019

JESSE WESLEY, Plaintiff,
CBS RADIO SERVICES, INC. et al., Defendants.



         This matter comes before the Court on the motion for summary judgment[1] filed by defendants CBS Radio Stations, Inc., CBS Radio Services, Inc., CBS Broadcasting, Inc., Viacom Radio, Inc., Michael Fashana and Cindy Johnson. Dkt. #42.


         This case arises out of plaintiff Jesse Wesley’s employment as a Digital Sales Specialist (“DSS”) and Account Executive (“AE”) with CBS Radio Stations, Inc. (“CBS”) in Seattle, Washington from 2014 to 2016. Plaintiff brought claims for violation of Washington’s Law Against Discrimination (“WLAD”), see RCW 49.60.010 et seq., violations of the Family Medical Leave Act (“FMLA”) and Washington’s Family Leave Act (“FLA”), wrongful termination in violation of public policy, failure to accommodate, intentional infliction of emotional distress and negligent infliction of emotional distress. Dkt. #1-2 (Compl.) at ¶¶ 4.1.1-4.6.1. Defendants removed the case to this Court on March 29, 2018. Dkt. #1; see 28 U.S.C. § 1331. In his “Motion for Leave to Amend Complaint”, plaintiff requested leave to add a claim for racial discrimination pursuant to 42 U.S.C. § 1981(a) and the dismissal of his causes of action for intentional and negligent infliction of emotional distress. Dkt. #24. The Court granted plaintiffs motion on June 17, 2019. Dkt. #63. Plaintiff accordingly filed a Second Amended Complaint on June 21, 2019, see Dkt. #64, but defendants moved for summary judgment prior to that date. Dkt. #42. The causes of action that are the subject of this motion, therefore, are violations of the WLAD, FMLA and FLA, wrongful termination in violation of public policy, and failure to accommodate.

         A. CBS’s Hiring of Plaintiff

         Plaintiff was hired as a DSS on June 10, 2014. Ex. E, Dkt. #43-5 at 2. He had a base yearly salary of $50, 000 plus commissions. Id. at 3; see Dkt. #49 (Wesley Decl.) at ¶ 4. Generally, DSS’s were provided with a “salary in perpetuity and they received a commission on top of that … which was generally anywhere from 15 to 18 percent.” Ex. A, Dkt. #50-1 (Baker Decl.) at 12:11-17. Plaintiff acknowledged receipt of CBS’s Non-Discrimination and Anti-Harassment Policy on the same day. Ex. E, Dkt. #43-5 at 7.

         At the time that he was hired, plaintiff was interviewed by defendant Michael Fashana, defendant Cindy Johnson, Kevin McCarthy and Angel Olson. Ex. M, Dkt. #49-13 (Wesley Dep.) at 39:11-23. At his deposition, plaintiff testified that he did not inform any of those four individuals that he suffered from depression. Id. He informed them that he had been through a period of depression after his brother’s suicide. Id. at 39:24-40:18. But when asked by Fashana, “Well, how are you now? Is your head right?”, he responded, “Yes, sir.” Id. at 40:19-41:1. He did not inform any of them of any disabilities that he had at the time that might have affected his ability to do his job. Id at 41:22-42:2. He did not ask for any accommodations. Id. at 42:3-8. Fashana does not “recall any time that Plaintiff informed him that Plaintiff or his family member suffered [from] ‘depression’ or ‘anxiety.’” Ex. H, Dkt. #43-8 at 10-11. Neither does Johnson. Ex. I, Dkt. #43-9 at 10. The only medical condition that plaintiff informed them of was a miscarriage allegedly suffered by his wife. Id.; Ex. H, Dkt. #43-8 at 11; see also Ex. B, Dkt. #43-2 at 12-13. Plaintiff testified that he believes that he “did have a severe depression disability [but] didn’t have any flare-ups that would prohibit [him] at that time from doing [his] job.” Wesley Dep. at 43:2-4. In the declaration filed with his response to defendants’ motion for summary judgment, however, plaintiff states that he “personally informed Defendants during [his] initial interview that [he] suffered [from] depression that was aggravated by [his] brother’s recent death and that [his] struggles from depression were the reason that [he] was terminated from Townsquare.” Dkt. #49 (Wesley Decl.) at ¶ 3. On a Personal Information Form dated June 10, 2014, under “Disability Status”, plaintiff ticked the box that stated, “I am an individual with a disability.” Ex. B, Dkt. #50-2; see Wesley Decl. at ¶ 3.

         B. Plaintiffs Employment as a Digital Sales Specialist

         Plaintiff missed his first day of work. Wesley Dep. at 86:6-87:23. He informed Fashana, who “just told [him] to go home and get rest, come back the next day with [his] A game.” Id. at 88:15-20. He was not reprimanded or disciplined in any way. Id. at 88:21-23.

         “As a general rule, all salespeople [at CBS] [were] given a salary for the first six to twelve months and then [were] given a budget by their ninetieth day of employment.” Ex. B, Dkt. #43-2 at 5. There was no specific policy on setting budgets. Ex. A, Dkt. #50-1 (Baker Dep. II[2]) at 59:6-11. During that initial period of 90 days, CBS assessed “how they were doing, how much business they had on the books, how much business they had in the funnel, what their aptitude was.” Id at 59:6-21. A “reasonable budget” would then be assigned, taking CBS’s revenue needs into consideration. Id. at 59:22-60:23. It was an “evolving process” and the budget was generally revised quarterly. Id. at 60:10-23. Plaintiff stated that he was not given a budget “from the first month that [he] was hired” and that “during the first two months of [his] employment, [he] was not told that [he] had a budget.” Wesley Decl. at ¶¶ 5, 8. CBS expected salespersons like plaintiff to be at a certain percentage of their budgets, to come to work on time, and to dress and behave professionally. Baker Dep. II at 65:19-66:9.

         From July to September 2014 (i.e., during the initial period), plaintiff had a budget of $10, 000. Ex. E, Dkt. #43-5 at 42. He billed $500 in July, $7, 800 in August, and $4, 000 in September. Id. Between October and December 2014, plaintiff had a budget of $12, 000 per month. Id. at 41; see Baker Dep. II at 51:06-10. Plaintiff billed $4, 000 in October, $2, 000 in November, and $6, 200 in December. Ex. E, Dkt. #43-5 at 41. Overall, between June and October 2014, he met 38% of his budget. Id. at 42. Generally, CBS expected its salespersons over a six-month period to meet their budgets over 50% of the time. Plaintiff failed to achieve those goals. Baker Dep. II at 51:11-17. It was not mandatory that every employee hit their budget in each month or quarter, but employees “had to show that [they] were consistently meeting it more often than not.” Id. at 85:6-11. Plaintiff, however, claims that he received oral and written praise for his work and was under the impression that he was meeting his supervisors’ expectations. Wesley Decl. at ¶ 6. He states that he was “always the first to arrive at work” and left late. Id. On December 30, 2014, plaintiff received an email from Olson. She stated that plaintiff had had a “good year” and that he was “at the #2 position in Seattle for digital revenue”. Ex. 3, Dkt. #49-3 at 8-10. Plaintiff does not dispute that he did not meet his budget targets. See Dkt. #48 at 2-4.

         C. Transition to Account Executive

         According to CBS, due to his lack of success as a DSS in achieving his budget numbers, plaintiff was switched from a DSS to an AE effective January 1, 2015. Baker Dep. at 22:15-22. His managers “felt that he had the aptitude to be successful as an account executive. They felt that he was very aggressive in his pursuing of clients, that he had some decent relationships, that he certainly had the passion for the industry and for the stations, … [but] wasn’t able to be focused just on digital and … would attempt to sell all of [CBS ’s] assets.” Id at 22:23-23:5. DSS’s focused on selling only the digital aspects of the station. Id at 23:17-23. CBS “wanted to see [plaintiff] succeed.” Id at 50:8-25.

         Plaintiff, however, casts this as a demotion. Wesley Decl. at ¶ 8. There was no change in salary, although CBS made changes around the same time to the commission structure applicable to all Seattle AEs. Ex. E, Dkt. #43-5 at 43-49. Plaintiff does not dispute that there was no change in his salary. Dkt. #48 at 4. AEs were generally provided with a guaranteed salary plus commission for a certain amount of time and then, depending on the kind of business procured, they eventually dropped down to a draw against commissions, typically within a year. Baker Dep. II at 12:18-13:7.

         The decision to transfer plaintiff was made by Olson, Fashana, Johnson and McCarthy. Baker Dep. at 67:20-24. Baker initially testified that plaintiff was not given a warning or reprimand prior to being transferred to the AE position. Baker Dep. II at 53:16-20. She later testified that he received a verbal warning prior to the transfer. Baker Dep. at 67:25-68:3. He was told that he wasn’t “very successful in his job, ” particularly in terms of meeting his budgets, and “that they thought that he would be much more successful in an AE position.” Id. at 68:4-9. In general, CBS had a policy of issuing warnings if employees were not meeting their supervisors’ expectations. Baker Dep. II at 62:6-63:20. Plaintiff testified that he was told that he was not making anything near what CBS wanted him to make in his first six months and that it was time for him to move over. Wesley Dep. at 112:15-24.

         Plaintiff was not given an opportunity to better his sales after the warning. Baker Dep II at 68:10-22. Plaintiff and Fashana had discussed plaintiffs performance in regular one-on-one meetings prior to the decision. Id. 68:10-22. According to witnesses present at the meeting, plaintiff “seemed fine with” the shift. Id. 69:23-25.

         D. Employment as an AE and Billing Accounts

         Between January 2015 and June 2016, plaintiffs budget varied between $44, 000 and $77, 000. Ex. F, Dkt. #43-6; see Dkt. #43 (Silke Decl.) at ¶ 8. Each month, plaintiff achieved between 3% and 50% of his budget, with an average of 37% in 2015 and 18% in 2016. Id. More often than not, the majority of his colleagues did significantly better. Ex. G, Dkt. #43-7. However, on March 18, 2015, he received an email from Olson praising his work. Ex. 3, Dkt. #49-3 at 8-10 (“You are rocking your Q1 digital budget… 79% in and need to add $7, 600 more to hit your budget or $36, 000!”).[3] Plaintiff also won a gift card in CBS’s digital sales month contest on April 13, 2015. Id. at 1-4. In that month, he achieved 44% of his budget, higher than four of his colleagues and lower than another four of them. Ex. G, Dkt. #43-7 at 2. On January 19, 2016, an email was sent out to the team congratulating plaintiff on his sale to Issaquah Honda Kubota. Ex. 3, Dkt. #49-3 at 5. Overall, in January, he achieved 12% of his budget, which was significantly lower than his colleagues’ percentages of 81%, 92%, 87% and 64%. Ex. G, Dkt. #43-7 at 2.

         According to plaintiff, “billing accounts” are accounts with clients who have previously done business with CBS. Wesley Decl. at ¶ 10. They are “desirable accounts because it is highly likely that these clients will keep billing, which results in commissions without having to prospect new clients.” Id. Plaintiff requested that he be assigned these accounts and was not. Id. at ¶ 11; see Baker Dep. at 73:15-17; see Ex. E, Dkt. #43-5 at 29-30. This, according to CBS, is because he had to “prove himself.” Id. at 73:20-24; see Wesley Decl. at ¶ 10. There were concerns about him failing to meet his budgets as a DSS, as well as his lack of understanding of CBS’s business and his ability to grow the accounts that he already had. Baker Dep. at 73:23-76:9. To earn these accounts, plaintiff needed to “obtain[] his budgets, hav[e] sufficient business in the sales funnel, establish[] more relationships with clients and hav[e] the operational acumen that the sales department required.” Id at 83:17-25. In general, CBS did not have any formal or written policies and procedures for the assignment of these accounts. Ex. J, Dkt. #43-10 at 4. It was left to the discretion of local market management, who “took into consideration a variety of factors including but not limited to the strengths and weaknesses of individual employees, the time commitment required for each account, the sophistication and specific needs of the clients, and other factors as appropriate.” Id.; see Ex. K, Dkt. #43-11 at 4.

         Plaintiff claims that his coworkers were assigned these accounts without having to earn them. Specifically, he states that a Caucasian female employee named Jocelyn Macdonald was hired in February 2015 and was assigned the accounts that he had been requesting. Wesley Decl. at ¶ 12; see Ex. A, Dkt. #49-1. Macdonald had no sales experience. Dkt. #52 (Fashana Decl.) at ¶ 2. However, according to Fashana, she “worked hard, learned quickly and was a natural born leader. Even as a person new to the business, [Macdonald] found accounts, was a leader in the building and earned the assignment of the accounts that were given to her. She was generally a very good sales person. Once she took over an account, she delivered results for the company.” Id. By contrast, plaintiff “did not demonstrate the same skill level, even though he had much more media sales experience.” Id. at ¶ 6. Decisions on account assignments “had to be made in the best financial interest of both [CBS’s] clients and CBS and a person’s race, gender, or disability played no role in [their] decision making.” Id. at ¶ 7.

         E. Complaint Against ...

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