United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
S. LASNIK, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion for summary
judgment filed by defendants CBS Radio Stations,
Inc., CBS Radio Services, Inc., CBS Broadcasting, Inc.,
Viacom Radio, Inc., Michael Fashana and Cindy Johnson. Dkt.
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.
CBS’s Hiring of 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.
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.
Plaintiffs Employment as a Digital Sales Specialist
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.
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.
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.
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.
Transition to Account Executive
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.
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.
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.
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.
Employment as an AE and Billing Accounts
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!”). 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.
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.
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.
Complaint Against ...