NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 15 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE L. WESLEY III, No. 16-35852

Plaintiff-Appellant, D.C. No. 1:15-cv-03012-LRS

v.

MEMORANDUM*

TOWN SQUARE MEDIA WEST

CENTRAL RADIO BROADCASTING; et al.,

Defendants-Appellees.

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. 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.

2 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

3 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.

4