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Ogletree, Deakins, Nash

Smoak & Stewart, P.C.

2415 East Camelback Road, Suite 800

Phoenix, Arizona 85016

(602) 364-7000

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Joseph Sorge, 

Plaintiff, 

vs. 

Yelp, Inc., 

Defendant. 

No. 2:17-cv-04518-SMM 

DEFENDANT YELP INC.’S REPLY 

TO PLAINTIFF’S RESPONSE TO 

MOTION FOR SUMMARY 

JUDGMENT 

Defendant Yelp Inc. (“Yelp”) replies to Plaintiff Joseph Sorge’s (“Sorge”) 

Response to Yelp’s Motion for Summary Judgment. This Reply is supported by the 

following Memorandum of Points and Authorities. 

I. INTRODUCTION 

Sorge alleges Yelp created a hostile work environment by allowing a song to be 

played on its sales floor he believed contained lyrics that were “demeaning to women and 

homosexuals.” 1 He further alleges he was fired in retaliation for complaining about the 

Song. Yelp is entitled to summary judgment on Sorge’s Title VII claims because Sorge, 

who is neither female nor homosexual, is not a member of these protected classes and was 

not targeted based on his sex or sexual orientation by the allegedly offensive Song lyrics. 

1

 The song is “Straight to the Bank” by 50 Cent, hereinafter “the Song”. 

L. Eric Dowell, SBN 011458 

Alexandra J. Gill, SBN 027506 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., SBN 00504800 

2415 East Camelback Road, Suite 800 

Phoenix, Arizona 85016 

Telephone: (602) 778-3700 

Fax: (602) 778-3750 

Eric.Dowell@OgletreeDeakins.com 

Alexandra.Gill@OgletreeDeakins.com 

Attorneys for Defendant Yelp Inc. 

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When Sorge argues Title VII protects men and women from sexual harassment, he 

misses the point—a sexual harassment claim under Title VII requires the allegedly 

offending conduct to have been directed at him based on his sex or his sexual orientation. 

Sorge’s allegations and admissions confirm that the allegedly offensive Song lyrics were 

not directed at him or based on his sex or sexual orientation. 

Sorge also fails to address Yelp’s argument that a Title VII retaliation claim cannot 

survive when the underlying, allegedly protected activity—Sorge’s alleged expression of 

concern to his supervisor Matthew Susa (“Susa”) about the Song lyrics—is not protected 

activity under Title VII. Even accepting as true that Sorge expressed concern about the 

Song to Susa, his conduct was not protected activity because he was never the recipient of 

the allegedly offensive behavior based on his sex or sexual orientation. 

Instead of addressing this argument, Sorge argues Yelp provided shifting 

explanations for its decision to terminate him and that the temporal proximity between his 

alleged complaints about the Song and his termination supports an inference of retaliatory 

intent. However, Yelp’s explanations for Sorge’s termination are entirely consistent and 

compatible and have never changed. Furthermore, even if the timeline led the Court to 

infer a prima facie case of retaliation, Yelp has provided legitimate, non-discriminatory 

reasons for Sorge’s termination and Sorge’s temporal proximity argument is insufficient to 

show pretext because there were multiple intervening events between Sorge’s alleged 

conversation with Susa about the Song and his subsequent termination. Sorge has 

proffered no evidence to contradict or question the truth of Yelp’s stated reasons for 

termination except his own insufficient and self-serving speculation. 

Sorge ignores, and therefore concedes, Yelp’s primary arguments. Instead of 

responding, he raises irrelevant arguments based on mischaracterizations of Yelp’s Motion 

that do not affect the outcome. The Court should grant Yelp’s Motion and dismiss Sorge’s 

claims with prejudice. 

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II. LEGAL ANALYSIS 

A. Yelp is Entitled to Summary Judgment on Sorge’s Claim for Sexual 

Harassment/Hostile Work Environment.

A plaintiff asserting a claim under Title VII for sexual harassment under a hostile 

work environment theory must demonstrate that he was subjected to a hostile work 

environment and that the employer is liable for the harassment. Little v. Windermere 

Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002). To demonstrate a prima facie case of 

hostile work environment, Sorge must prove: (1) he was subjected to verbal or physical 

conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was 

sufficiently severe or pervasive to alter the conditions of his employment and create an 

abusive working environment. Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1054 (9th 

Cir. 2007) (internal quotations omitted). Sexual harassment/hostile work environment is 

actionable under Title VII only to the extent “it occurs because of the plaintiff’s sex.” 

Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 874 (9th Cir. 2001) (internal 

quotations omitted).

1. Sorge’s Hostile Work Environment Claim Fails Because Sorge 

did not Experience Misconduct Based on His Sex or Sexual 

Orientation. 

Sorge’s sexual harassment/hostile work environment claim fails because he does 

not, and cannot, allege that he experienced sexual harassment because of his sex or sexual 

orientation. [Mot., Dkt. 29 at 7]. Sorge alleged he was offended on behalf of two groups he 

believes are demeaned by the Song’s lyrics—women and homosexuals. [SOF ¶¶ 58-62; 

Compl., Dkt. 1 at 4-6]. Yet, the Ninth Circuit has addressed this issue directly, holding 

that exposure to language potentially demeaning toward groups of which the plaintiff is 

not a member cannot support a claim under Title VII. Nichols, 256 F.3d at 874; See also 

Patee v. Pacific Northwesten Bell Tl. Co., 803 F.2d 476, 477 (9th Cir. 1986) (Sexual 

harassment actionable under Title VII only to the extent “it occurs ‘because of’ the 

plaintiff’s sex.”); see also Equal Employment Opportunity Comm. V. L&W Supply Corp., 

No 2:07-cv-1364 JWS, 2008 WL 11339622, at *3-4 (D. Ariz. Feb. 12, 20087) (adopting 

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Patee and granting summary judgment on the plaintiff’s discrimination claim where he 

was not a member of the protected class that was the target of the alleged discrimination 

and noting “[t]he Ninth Circuit has not accepted indirect discrimination as a basis for a 

Title VII claim”). 

In his Response, Sorge mischaracterizes Yelp’s argument, stating “Yelp’s argument 

is that ... no amount of sexually explicit or demeaning lyrics ... can ever create a hostile 

environment for a straight white man.” [Resp., Dkt. 40 at 4]. Sorge cites and quotes at 

length the Supreme Court’s decision in Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 

118 S. Ct. 998, 140 L.Ed.2d 201 (1998) to show that the Supreme Court has “protected 

men, not just women, from sexually hostile work environments under Title VII[.]” [Resp., 

Dkt. 40 at 6]. 

Yelp, however, does not take issue with the holding in Oncale or the other cases 

Sorge cites because they are inapposite here. Yelp does not contend that Title VII protects 

only women from a sexually hostile work environment. Rather, Yelp contends that Sorge’s 

Title VII claim fails because he did not complain of conduct that was offensive or 

demeaning to other heterosexual men, but because he allegedly complained of conduct he 

believed was offensive or demeaning to women and homosexuals. In holding that Title VII 

prohibits same-sex discrimination “because of ... sex,” the Supreme Court implicitly 

acknowledged that conduct is only actionable under Title VII when it occurs “because of 

... sex.” Id.; Nichols, 256 F.3d at 874. Sorge’s claim fails because the actions he accuses 

Yelp of taking did not target him based on his sex, or his sexual orientation.

2. Sorge Cannot Change His Allegations at Summary Judgment 

Because it would Prejudice Yelp.

At the commencement of this litigation, Sorge claimed that the Song Yelp allowed 

to be played on the sales floor contained lyrics that were “demeaning to women and 

homosexuals” and that he complained to Yelp on their behalf. [SOF ¶¶ 58; 62, Compl., 

Dkt. 1 at 4-6]. In his Response, Sorge reaffirms the scope of his concern, stating “He 

counts both women and homosexuals among his family and friends, and was embarrassed 

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Phoenix, Arizona 85016

(602) 364-7000

to be hearing those lyrics with women in the workplace.” [Resp., Dkt. 40 at 4]. Yet, 

recognizing he is neither a woman nor homosexual and not in the protected class allegedly 

targeted by the Song, Sorge now claims for the first time that the Song actually targets “an 

otherwise straight man,” because it implies the hypothetical straight man in the Song—the 

“Homey”—is like a woman on her menstrual cycle and a homosexual. Id. at 4; 8. 

Sorge is not merely pleading in the alternative, but completely changing his theory 

of the case. Sorge cannot, after the close of discovery and at summary judgment, change 

the very substance of what allegedly concerned him and what he allegedly complained 

about—lyrics that were offensive “to women and homosexuals.” [Compl., Dkt. 1 at 4]. The 

Ninth Circuit does not permit new theories of cases to be raised at summary judgment, 

especially where the applicable Complaint does not provide sufficient notice for a 

defendant to address the new theory. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 

(9th Cir. 2000) (“After having focused on intentional discrimination in their complaint and 

during discovery, the employees cannot turn around and surprise the company at the 

summary judgment stage on the theory that an allegation of disparate treatment in the 

complaint is sufficient to encompass a disparate impact theory of liability”). 

Here, Sorge’s new theory of liability, that the Song actually targeted him on the 

basis of his gender, is entirely inconsistent with his Complaint. Sorge offers no evidence or 

legal argument to support his new theory, which comes long after the close of discovery 

and the deadline for amending his pleadings. The Court cannot permit Sorge to argue his 

new theory because it would prejudice Yelp by denying it the benefit of discovery and 

other procedural opportunities to address the issue. See also Patel v. City of Long Beach, 

564 Fed. App’x. 881, 882 (9th Cir. 2014) (“[A] plaintiff cannot raise a new theory for the 

first time in opposition to summary judgment.” Citing Coleman, 232 F.3d at 1292). 

3. Sorge's Hostile Work Environment Claim Fails Because Yelp’s 

Alleged Conduct was not Severe or Pervasive and did not Alter 

the Conditions of his Employment.

Sorge’s Response argues the frequency with which snippets of the Song played on 

the sales floor made the work environment hostile. [Resp., Dkt. 40 at 7]. However, in its 

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Phoenix, Arizona 85016

(602) 364-7000

Motion, Yelp demonstrated that no reasonable trier of fact could conclude that Yelp’s 

alleged conduct—occasionally playing short snippets of the Song on the sales floor—rises 

to the level of severity or pervasiveness necessary to support Sorge’s claim. [Mot., Dkt. 29 

at 10-12]. 

To support a claim for Hostile Work Environment under Title VII, the work 

environment must be both subjectively and objectively hostile and abusive, meaning it 

must be hostile and abusive both to the alleged victim and to a reasonable person. Harris v. 

Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). It must also be sufficiently severe or 

pervasive to alter the conditions of his employment and create an abusive working 

environment. Craig, 496 F.3d at 1054. 

Many courts have held that the occasional playing or repetition of offensive song 

lyrics is not sufficiently severe or pervasive to support a hostile work environment claim 

under Title VII. See Stevens v. Life Care Centers of Am., Inc., No. 4:06-cv-79-SEB-WGH, 

2008 WL 4443089 (S.D. Ind. Sep. 28, 2008) (Holding that repetition of allegedly offensive 

lyrics from the same musician, 50 Cent, where not directed at anyone, was not actionable 

sexual harassment that supports a hostile environment claim); See also Small v. KS 

Engineers PC, No. 08-3458 (GEB), 2010 WL 1705002, at *3 (D.N.J. Apr. 26, 2010) 

(dismissing the plaintiff’s sexual harassment claim where the alleged coworkers sang rap 

songs to him in a derogatory manner and finding that “the singing of derogatory songs in 

Plaintiff’s presence, while possibly offensive, is not objectively hostile so as to amount to 

being a physical threat, humiliation, or detriment to work performance); See also Swann v. 

Roadway Express, Inc., No Civ.1:02 CV 01053, 2004 WL 1166651, at *4 (M.D.N.C. May 

14, 2004) (“A single offensive song played periodically on a radio station in the workplace 

is not an actionable violation of Title VII); See also Bahri v. Home Depot USA, Inc., 242 F. 

Supp. 2d 922, 951 (D. Or. 2002) (although plaintiff claimed that her supervisor 

“repeatedly” referred to her and other female employees with language she found 

objectionable, the evidence fell “far short” of demonstrating sexual harassment); 

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Here, ten to thirty seconds of the Song were played over a music streaming station. 

[SOF ¶ 7]. Sorge did not keep any records or notes but speculates that the Song was played 

somewhere between four or five times per day, up to fifteen or twenty times per day. [SOF 

¶ 63]. Taking the higher numbers of Sorge’s speculation as true, the total length of the 

Song’s play time would be only ten minutes of a full workday. Even if the entire Song 

were played (and Sorge does not allege it was), the play time would be only about an hour. 

The occasional repetition of the segment of the Song is even less pervasive because it was 

only one among many team songs that played on the Yelp sales floor. [SOF ¶¶ 7-8]. Sorge 

admits there was “generally music playing” on the Yelp sales floor, both when teams made 

a sale and “additional music” during breaks. Id. As shown by Stevens, Small, Swann, and 

Bahri, mere repetition does not make conduct sufficiently pervasive to support a hostile 

work environment claim. Further, as in Stevens, Small, and Swann, while Sorge may have 

considered the lyrics “offensive,” they were not so objectively hostile to support a sexual 

harassment claim. Small, 2010 WL 1705002, at *3; Stevens, 2008 WL 4443089, at *13. 

See also Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (finding no 

hostile work environment where supervisor’s outbursts were “offensive” but “about other 

people” and he “never directed a sexual insult” at the plaintiff). 

Finally, in addition to being severe or pervasive, the alleged conduct must alter the 

conditions of Sorge’s employment. Craig, 496 F.3d at 1054. The Ninth Circuit has held 

“[i]t is enough if such hostile conduct pollutes the victim’s workplace, making it more 

difficult for her to do her job, to take pride in her work, and to desire to stay in her 

position.” Reynaga v. Roseberg Forest Products, 847 F.3d 678, 687 (9th Cir. 2017) 

(quoting Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994)). In 

Reynaga, the Ninth Circuit found conduct sufficiently severe or pervasive to alter the 

conditions of employment where the conduct was so severe it led to confrontations 

between the plaintiff and his supervisor in the workplace, led the plaintiff to register verbal 

and written complaints with management, required management to rearrange shifts to keep 

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the plaintiff and supervisor apart, and eventually led plaintiff to leave his position. 

Reynaga, 847 F.3d at 687. 

Unlike the plaintiff in Reynaga, Sorge has never alleged that hearing the Song 

played affected his work or the conditions of his employment in any way. Sorge believed 

he was in the top 50 to 75 percent of his sales team in terms of his production and that he 

was the “best” sales person in his group. [SOF ¶¶ 25-27]. Sorge did not complain about the 

Song until after his disciplinary meeting with Susa and Kennedy on the morning of June 

16, 2016, at the earliest. [Resp., Dkt. 40 at 2]. No one ever complained to Sorge about the 

Song, nor did Sorge ask anyone if they found the Song to be offensive [SOF ¶ 68-70]. 

Sorge even admits that “everyone” sang along to the Song, including “probably” him. 

[SOF ¶¶ 72-73]. A coworker who sat beside Sorge on the sales floor witnessed Sorge 

singing along to the Song. [SOF ¶ 74]. Far from alleging the Song altered the conditions of 

his employment, Sorge participated willingly and believed his employment conditions 

were conducive to excellent performance. 

B. Sorge’s Retaliation Claim Fails as a Matter of Law. 

To establish a prima facie case of retaliation, Sorge must show that (1) he engaged 

in a protected activity; (2) he was thereafter subjected by his employer to an adverse 

action; and (3) a causal link existed between the protected activity and the adverse 

employment action. Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 894 (9th Cir. 2005). If 

Sorge presents a prima facie case of retaliation, then Yelp must proffer a legitimate, nonretaliatory reason for its actions. Id. Sorge then bears the ultimate burden of submitting 

evidence that Yelp’s given reason is a pretext for retaliation. Id. 

1. Sorge’s Prima Facie Case Fails Because He Cannot Demonstrate 

He Engaged in Protected Activity. 

Sorge cannot satisfy the first element of his claim under Porter v. Cal Dep’t of 

Corr., 419 F.3d at 894 because the alleged conduct must be protected conduct under Title 

VII to sustain a claim for retaliation. Sorge’s conduct was not protected under Title VII. 

Therefore, it cannot sustain a claim for retaliation. 

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Although courts liberally construe the anti-retaliation provision of Title VII, to 

show protected activity, the conduct allegedly complained of “must fairly fall within the 

protection of Title VII to sustain a claim of unlawful retaliation.” Learned v. City of 

Bellevue, 860 F.2d 928, 932 (9th Cir. 1988); Quednau v. Arizona, No. CV-12-571-PHXGMS, 2013 WL 5314358, at *3 (D. Ariz. Sep. 20, 2013) (“While an employee may fail to 

prove the alleged unlawful employment practice but still prevail on a retaliation claim, ‘the 

opposed conduct must fairly fall within the protection of Title VII to sustain a claim of 

unlawful retaliation’”) (quoting Learned, 860 F.2d at 932)); Maner v. Dignity Health, No. 

CV16-3651-PHX DGC, 2018 WL 4927250, at *8 (D. Ariz. Oct. 11, 2018). 

Even assuming, for summary judgment, that Sorge complained about the allegedly 

offensive Song to Susa on June 16, 2016, Plaintiff’s claim fails because he did not oppose 

conduct that fell within the protection of Title VII. Maner, 2018 WL 4927250, at *8. Sorge 

alleges that he told Susa the Song was offensive because it was “denigrating to 

homosexuals and women.” [SOF ¶ 77]. However, the Ninth Circuit has clarified there can 

be no violation of Title VII where the plaintiff is not a member of the class that was the 

target of the allegedly hostile conduct. Patee, 803 F.2d at 477. Therefore, like the plaintiff 

in Maner, Sorge did not have an “objectively reasonable” belief he was complaining of 

conduct that violated Title VII. Sorge cannot demonstrate that he objectively, or even 

subjectively, experienced a hostile work environment based on his sex. Sorge’s alleged 

complaint constitutes no protected activity under Title VII. Learned, 860 F.2d at 932;

Maner, 2018 WL 4927250, at *8. Sorge ignores, and therefore concedes, this argument. 

2. Sorge’s Retaliation Claim Fails Because Yelp Offered Legitimate, 

Non-Discriminatory Reasons for the Termination That Sorge 

Does Not Dispute. 

Even if Sorge could show a prima facie case of retaliation, Yelp provided valid, 

nondiscriminatory reasons for the termination which Sorge does not refute. Yelp 

terminated Sorge’s employment due to his repeated unprofessional and disrespectful 

behavior, including appearing disengaged in a training meeting and repeatedly failing to 

follow Yelp’s sales process, despite receiving coaching on numerous occasions. [SOF ¶ 

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46-48]. Yelp ultimately terminated Sorge’s employment after receiving the report he told a 

person he apparently believed to be an interview candidate to “run while [he] still can.” 

[SOF ¶ 49]. Even if Sorge alleges he did not say “run while you still can” as reported by 

multiple Yelp employees, Sorge “must do more than show that [Yelp’s] proffered reasons 

are false. ‘Rather, courts only require that an employer honestly believe its reasons for its 

actions, even if its reason is foolish or trivial or even baseless.’” Kent v. City of Tucson, 

No. CV 09-0280 TUC-FRZ (JM), 2011 WL 7637263, at *6 (D. Ariz. Sep. 26, 2011) 

(quoting Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002)). Yelp 

believed its reasons for its actions because it had credible reports from multiple sources. 

[SOF ¶ 42]. Yelp has provided reasons for its actions supported by substantial evidence. 

Sorge has not offered any evidence beyond his own self-serving speculations showing 

Yelp’s reasons for terminating him were pretext, as he must to succeed in his claim. 

Porter, 419 F.3d at 894. 

a. Sorge’s “Shifting or Changing Reasons” Argument Fails 

Because Yelp’s Position has Remained Consistent. 

Sorge argues Yelp’s reasons for terminating him were pretextual because Yelp gave 

“shifting or changing reasons for its actions.” [Resp., Dkt. 40 at 10]. Sorge claims the 

reasons stated during Sorge’s termination meeting are incompatible with the reason on his 

termination paperwork, and those shifting reasons demonstrate pretext and support an 

inference of a causal link between his alleged conservation with Susa about the Song and 

his termination. [Id. at 10]. 

However, it is well established that “separate reasons offered by an employer are 

not considered shifting if they are not incompatible” Culver v. Qwest Commc’ns. Corp., 

306 Fed. App’x. 403, 405 (9th Cir. 2009) (internal quotations omitted). Yelp has never 

changed its explanation for Sorge’s termination, and the reasons Yelp gave were entirely 

consistent. Not only are these reasons for termination valid and nondiscriminatory, they are 

consistent with Sorge’s claim that his termination paperwork states he was terminated 

because he was not a good fit in Yelp’s workplace culture. [Resp., Dkt. 40 at 10]. Yelp 

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maintains a workplace culture of professionalism and respect; Sorge proved himself unable 

or unwilling to comport himself under Yelp’s workplace culture by engaging in the 

behaviors described in SOF ¶¶ 46-48. The two positions are entirely consistent, and 

explain Yelp’s decision to terminate Sorge. 

b. Sorge’s Temporal Proximity Argument Fails Because 

Sorge Committed Multiple Intervening Actions Which 

Justified his Termination. 

Sorge also argues the 24-hour interval in time between his complaint and his 

termination shows pretext by establishing a causal link between his protected activity and 

his termination. [Resp., Dkt. 40 at 8-9]. While timing of an adverse employment action can

create an inference of causality, it does not necessarily create such an inference, or require 

a case to proceed to the finder of fact. Passantino v. Johnson & Johnson Consumer 

Products, Inc., 212 F.3d. 493, 507 (2000). The Ninth Circuit has cautioned “that a 

specified time period cannot be a mechanically applied criterion. A rule that any period 

over a certain time is per so too long (or, conversely, a rule that any period under a certain 

time is per se short enough) would be unrealistically simplistic.” Coszalter v. City of 

Salem, 320 F.3d 968, 977-78 (9th Cir. 2003). Indeed, the court in Passantino permitted 

evidence of retaliation based on timing to go to the jury only where “the evidence as a 

whole does not compel” the conclusion that the adverse employment action was not due to 

retaliatory motives. Passantino, 212 F.3d at 507. 

Here, by contrast, the evidence compels the conclusion that Sorge’s termination was 

not due to retaliatory motives. Even if Sorge’s allegations regarding the interval between 

his complaint and his termination meet the causality requirement for the purposes of 

showing a prima facie case of retaliation, they cannot rebut Yelp’s given reasons for the 

termination. Multiple intervening events undercut Sorge’s argument. First, he alleges he 

raised his concern about the Song to Susa at midday on June 16, 2016, after a meeting with 

Susa and Kennedy in which Sorge was very disrespectful and combative [Resp., Dkt. 40 at 

2; SOF ¶ 23-30]. Following that, Sorge was again disrespectful and inattentive in a training 

meeting and made the insubordinate comment to the employee he evidently believed was 

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an interview candidate. [SOF ¶ 31-45]. Sorge was terminated the following day, June 17, 

2016. [SOF ¶ 46]. The decision came quickly in response to Sorge’s consistent and 

increasingly problematic behavior, not in response to his alleged conversation about the 

Song with Susa. Considering the brevity of Sorge’s employment with Yelp, the rapid 

downward trajectory of his behavior at work, and the multiple intervening reasons for 

termination, the timeline is not sufficient evidence of pretext to send this issue to the jury 

under Passantino. 

c. Sorge’s Hostile Reaction Argument Fails Because Susa’s 

Response to Sorge’s Complaint was Not Hostile. 

Sorge argues when he voiced his concern about the Song to Susa following their 

meeting with Kennedy on June 16, 2016, Susa’s hostile reaction provided evidence of a 

causal link between Sorge’s action and his subsequent termination. [Resp., Dkt. 40 at 9]. 

Sorge’s argument must fail because Susa’s reaction does not rise to the level of hostility 

contemplated by the cases Sorge cites. Waters v. Churchill, 511 U.S. 661, 681-682 (1994) 

requires Sorge to “produce enough evidence to create a material issue of disputed fact 

about petitioners’ actual motivation.” 

In Waters, a nurse complained on multiple occasions to her supervisor about a 

hospital policy. Following her complaints, hospital management took certain actions that, 

viewed in the light most favorable to plaintiff, would show hostility based on her 

complaint. These actions included negative performance evaluations and being dismissed 

from an operating room while assisting on a surgery and contrary to the surgeon’s wishes. 

Id. at 681 (citing Churchill v. Waters, 977 F.2d 1114 (7th Cir. 1992) (reversed on appeal)). 

Similarly, in Tamosaitis v. URS Inc., 781 F.3d 468, 481-82 (9th Cir. 2015), plaintiff 

submitted emails showing defendant reacted to plaintiff’s protected activity by deciding to 

remove plaintiff from the project and location where he worked. In those cases, the courts 

concluded that such extreme reactions to plaintiffs’ complaints created a fact issue about 

defendants’ actual motivations. 

Here, Sorge alleges Susa merely said playing the Song was “company culture” and 

Sorge should “get over it.” [Resp., Dkt. 40 at 9]. Sorge offers no evidence beyond his own 

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recollection of the event, unlike the plaintiffs in both Waters and Tamosaitis. Sorge’s 

recollection of Susa’s statements does not rise to the level of hostile reaction contemplated 

by Waters and Tamosaitis. Susa did not oppose, attempt to restrict, or offer any other 

hostile reaction to Sorge’s complaint. His comments were and attempt to explain to Sorge 

why he elected not to take action based on Sorge’s complaint and to counsel Sorge on how 

to maintain his employment and bring himself into alignment with Yelp’s employee 

expectations. Therefore, Susa’s reaction to Sorge’s complaint cannot forestall summary 

judgment. 

IV. CONCLUSION 

Sorge has not and cannot demonstrate that he experienced a hostile work 

environment because of his sex or his sexual orientation. Nor can he show that Yelp 

terminated him in retaliation for allegedly complaining about a song he found offensive to 

“women and homosexuals”; even if he could, he cannot show that his complaint 

constituted protected activity under Title VII, or that Yelp’s given reasons for his 

termination were pretext for retaliatory intent. Sorge cannot meet his burden and his Title 

VII claims must be dismissed. 

DATED this 25th day of March 2019. 

OGLETREE, DEAKINS, NASH, 

SMOAK & STEWART, P.C. 

By: s/ L. Eric Dowell 

L. Eric Dowell 

Alexandra J. Gill 

2415 East Camelback Road, Suite 800 

Phoenix, Arizona 85016 

Attorneys for Defendant Yelp Inc. 

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CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of March 2019, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF Systems for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 

Joshua W. Carden 

Joshua Carden Law Firm, P.C. 

16427 North Scottsdale Road, Suite 410 

Scottsdale, Arizona 85254 

joshua@cardenlawfirm.com 

Attorneys for Plaintiff Joseph Sorge 

s/ Susan Stimson 

37843427.1 

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