NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE L. WESLEY III, 

Plaintiff-Appellant, 

 v. 

TOWN SQUARE MEDIA WEST 

CENTRAL RADIO BROADCASTING; et 

al., 

Defendants-Appellees.

No. 16-35852 

D.C. No. 1:15-cv-03012-LRS 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, District Judge, Presiding

Submitted May 11, 2018**

Seattle, Washington

Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM,*** Chief District 

Judge.

Plaintiff Jesse Wesley III (Wesley) was fired by his employer, Townsquare 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable John R. Tunheim, Chief United States District Judge 

for the District of Minnesota, sitting by designation.

FILED

MAY 15 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Media West Central Radio Broadcasting (WCRB) in June 2013. He sued WCRB 

and related companies (collectively Defendants) for violating the Washington Law 

Against Discrimination (WLAD) by engaging in disparate treatment and 

retaliation.1 The district court granted summary judgment for Defendants 

concluding that as a matter of law Wesley had not established a prima facie case of 

disparate treatment. Wesley then moved to amend the summary judgment order 

because the district court did not address the retaliation claim. When denying 

Wesley’s motion to amend judgment, the district court concluded that Wesley

would not be able to establish a prima facie case of retaliation. Wesley appeals

both orders. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the 

district court.

Wesley contends that the district court erred by granting summary judgment 

for Defendants on his disparate treatment claim. We review de novo a district 

court’s grant of summary judgment. See Stegall v. Citadel Broad. Co., 350 F.3d 

1061, 1065 (9th Cir. 2003). The district court correctly concluded that Wesley 

could not establish a prima facie case for disparate treatment because he did not 

establish an element, that he was performing his job satisfactorily. See Mikkelsen 

v. Pub. Util. Dist. No. 1 of Kittitas Cty., 404 P.3d 464, 470 (Wash. 2017). The 

 

1 Wesley alleged other claims, but did not appeal the district court’s entry of 

judgment for Defendants on those claims.
3 

undisputed evidence in the record showed that Wesley’s team, for which he was 

responsible in his managerial position, was not meeting its budget goals in 2012–

2013. Additionally, Wesley’s team and his customers complained about his lack 

of attentiveness and leadership. The district court did not err by granting summary 

judgment for Defendants on Wesley’s disparate treatment claim.

Wesley also contends that the district court erred by treating Defendants’ 

motion for summary judgment as a case ending motion when Defendants had not 

moved for summary judgment on his retaliation theory of discrimination. We 

review for abuse of discretion a district court’s denial of a motion to amend 

judgment. See Int’l Rehab. Scis. Inc. v. Sebelius, 688 F.3d 994, 1000 (9th Cir. 

2012). Although the district court cursorily rejected Wesley’s retaliation theory for 

the same reasons it rejected Wesley’s claim for disparate treatment, the record 

supports the conclusion that Wesley did not establish a prima facie case of 

retaliation under the WLAD. Under section 49.60.210(1) of the Revised Code of 

Washington, an employee establishing a prima facie case of retaliation must allege 

that he or she opposed any practices forbidden by the statute, or filed a charge, 

testified, or assisted in any proceeding under the statute. See Lodis v. Corbis

Holdings, Inc., 292 P.3d 779, 787 (Wash. Ct. App. 2013). Wesley asserts that his 

protected activity was taking medical leave, but the act of taking medical leave is 

not a protected activity under the statute. There is no evidence that Defendants 
4 

opposed Wesley’s request for leave or that Wesley made any complaints about 

Defendants’ grant of leave. We affirm the district court’s conclusion that 

Defendants were entitled to summary judgment on Wesley’s retaliation claim.

AFFIRMED.