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Patricia Wynn-Mason v. Levas Communications

April 28, 2010


The opinion of the court was delivered by: O'neill, J.


In this action, plaintiff alleges that defendant, her former employer, discriminated against her on the basis of her gender. Presently before me are defendant's motion for summary judgment, plaintiff's response and defendant's reply. For the following reasons, I will grant plaintiff's motion.


Defendant is the owner and operator of WURD radio, a Philadelphia radio station. Plaintiff was employed as an account executive by WURD from May 7, 2007 until her resignation on October 22, 2007. She was hired by Cody Anderson, who was the general manager of WURD at that time, to sell advertising time for the station.

At the outset, she was paid an annual salary of $36,000 plus a ten percent commission on any advertising revenue that she was able to secure. In July 2007, Kernie Anderson*fn1 replaced Cody Anderson as the general manager of WURD. On October 9, 2007, Anderson changed plaintiff's compensation structure to commission only, meaning that she would no longer receive a salary. He testified that he did so because plaintiff's compensation was much greater than the compensation of the other salespeople yet she "was performing extremely poorly." K. Anderson Dep. 7:21-24 (Nov. 18, 2010). Anderson had set plaintiff's monthly sales goal at $22,000. Id. at 13:11-14. In setting this benchmark, Anderson took into consideration the fact that plaintiff had been given an account that generated between $8,000 and $10,000 monthly. Id. at 10:4-11. He expected her to sell enough advertising every month to cover the difference. Id. at 13:11-14. She was unable to do so. Id. at 25:20 - 26:6 (describing plaintiff's monthly sales numbers as "dire"). Plaintiff asserted that her low sales figures were due to the fact that she was "build[ing] relationships" and thus had "accounts that were in the making." Pl. Dep. 25:19-24 (Nov. 17, 2010).

Anderson also expected sales executives like plaintiff to attend a morning sales meeting on Monday, Wednesday and Friday of each week. K. Anderson Dep. 15:9-18. Sales executives were allowed to miss the meetings, however, if they had a meeting with a prospective client that could not be scheduled for any other time. Id. at 31:6-14. Anderson testified that plaintiff did not attend the sales meetings on a regular basis. Id. at 32:15-16. When she did attend, she often discussed her attempts to sell advertising time to large out-of-town clients. Id. at 18:19-21. Anderson, who was skeptical that her attempts to attract large clients to advertise on a small radio station like WURD would be successful, admitted that he may have told plaintiff in the course of the meetings "that's not going to happen because the agency . . . only deals with [the station's representatives who represent it on the national level]." Id. at 19:9-12. Anderson described plaintiff's insistence on pursuing national clients as "unbelievable and irritating," id. at 20:3-4, and testified that he had at least "one or two" personal meetings with her to discuss her performance. Id. at 33:15-21. He testified that her compensation structure was changed as a result of her poor sales, her routine absence at the sales meetings and her unwillingness to shift her focus from large national clients to smaller local clients in accord with Anderson's stated goals.

Plaintiff recounts the events leading up to her resignation differently. She testified that she was recruited and hired by former general manager Cody Anderson to focus on selling advertising time to large national clients. Pl. Dep. 56:2-3. She testified that when Kernie Anderson took over as general manager, he did not schedule sales meetings for Monday, Wednesday and Friday of each week. Id. at 15:4-7. Instead, with occasional exceptions, Anderson held only one sales meeting per week. Id. at 15:1-3. Plaintiff testified that she missed several sales meetings on account of conflicting client appointments but emphasized that she always left a voicemail with Anderson explaining her absence. Id. at 39:20-24. According to plaintiff, Anderson often claimed not to have received such voicemails. Id. at 39:24 - 40:1. She also testified that Anderson never told her that her absence at these meetings was a problem.

Id. at 41:11-13 ("Q. And he never told you that he thought you were missing too many sales meetings? A. No, he didn't."); Id. at 41:7-10 ("Q. Didn't he tell you how important it was to have sales meetings? A. He did not. He said it was important to get clients.").

Plaintiff also testified that Anderson acted disrespectfully to her. For example, in one of the last sales meetings that she attended, Anderson asked each salesperson in attendance to describe what he or she was working on. Id. at 46:1-3. When he reached plaintiff, she mentioned that she "was working on Loews Hotel" and Anderson responded "it's not going to happen." Id. at 46:3-7. Flustered, plaintiff began discussing the next account she had been working on. Id. at 46:7-13. Before she could continue Anderson cut her off, again saying "it's not going to happen." Id. at 46:15-16. At another sales meeting, Anderson asked everyone in the room except plaintiff what he or she was working on. Id. at 47:11-14. When plaintiff interjected that she had not shared what she was working on, Anderson ignored her and kept on talking.

Id. at 47:16-17. On another occasion, Anderson read plaintiff's sales numbers out loud and criticized them in front of the whole group. Id. at 52:3-5. She testified that she endured this sort of behavior at every sales meeting, id. at 47:2-4 ("There was not one sales meeting where [Anderson] did not harass me in some capacity."), and that Anderson never criticized anyone else. Id. at 48:14-16.

Plaintiff testified that when she learned that her compensation structure had been changed to commission only, she was pleased. Id. at 64:5 ("I preferred 100 percent commission."). When she pressed Anderson for the details of her compensation package, however, he refused to answer, saying "[j]ust leave. I'll let you know. I'll let you know." Id. at 64:17-18. Plaintiff believed, based on her experience in the industry, that she was entitled to twenty percent commission and benefits. Id. at 64:20 - 65:9. She received notice via a letter sent by Anderson that her commission would be ten percent and she would not be entitled to benefits. Id. at 65:19-22. When she questioned Anderson about what she considered to be inadequate compensation, he responded "that's what it is and if you don't like it, you can quit." Id. at 65:20-22. The day after receiving the change in compensation, plaintiff was in a co-worker's office when Anderson entered and became "enraged when he saw [plaintiff] in the office." Id. at 76:17-18.

Plaintiff testified that she had no reason to believe that any of Anderson's conduct toward her, other than her compensation change, was because of her gender. Id. at 77:14-18 ("Q. Do you believe any of [Anderson's] other conduct toward you was based on because you were a woman or just the compensation?" A. I don't know. But I would say the compensation."); See Def.'s Statement of Uncontested Facts ¶ 43; Pl.'s Ans. to Def.'s Statement of Uncontested Facts ¶ 43.


Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex, 477 U.S. at 322-23. If the movant sustains its burden, the non-movant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A fact is "material" if it might affect the outcome of the case under governing law. Id.

To establish "that a fact cannot be or is genuinely disputed," a party must:

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), ...

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