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Joshua W. Carden, SBN 021698

JOSHUA CARDEN LAW FIRM, P.C.

16427 North Scottsdale Road, Suite 410 

Scottsdale, AZ 85254

joshua@cardenlawfirm.com

(480) 454-1100 

(480) 454-1101 (Fax)

Attorney for Plaintiff

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.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Joseph Sorge, 

Plaintiff,

v.

Yelp, Inc.,

Defendant.

No. 2:17-CV-04518-JJT

JOINT CASE MANAGEMENT 

REPORT

Come now the parties in the above listed matter and, pursuant to this Court’s February 22, 

2018 Order (Dkt. 10), file this joint case management report in anticipation of the upcoming 

Scheduling Conference and show the Court as follows: 

1. The nature of the case, setting forth in brief statements the factual and legal basis 

of plaintiff’s claims and defendant’s defenses;

Plaintiff:

Mr. Sorge worked as an entry-level sales/call-center employee for Yelp, Inc. in June 2016. 
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Early into his employment, he realized that another team’s “theme music” (played loudly and 

unavoidably in the event of every sale) was the song “Straight to the Bank” by rapper “50 Cent” 

– a song which contains lyrics offensive to, inter alia, women and homosexuals. 

(https://www.azlyrics.com/lyrics/50cent/straighttothebank.html). He complained to his manager 

regarding the offensive nature of the song on or about June 16, 2016 – his manager told him to 

“get over it,” that the song was “part of the corporate culture,” or words to that effect. On June 

17, 2016, the manager fired Mr. Sorge in the presence of Human Resources, allegedly for Mr. 

Sorge’s “lack of enthusiastic participation” in a group meeting during the previous day – a meeting 

that the manager himself did not attend. Mr. Sorge notified the Human Resources representative 

in the meeting that he was being terminated for reporting the offensive song and that the 

termination was clearly retaliatory. Human Resources did nothing to stop the termination. 

Defendant: 

This case arises out of Plaintiff’s employment with and termination by Defendant Yelp Inc. 

Plaintiff was employed by Yelp from June 6, 2016 until June 17, 2016 and held the position of 

Associate Account Executive Trainee. During his brief employment with Yelp, Plaintiff 

displayed a lack of professionalism, failed to follow Yelp’s established sales processes, and 

refused to comply with straightforward directives from his manager, Matthew Susa. During his 

first seven days of employment, Mr. Susa was forced to follow up with Plaintiff three separate 

times regarding his failure to correctly record his daily call metrics. Further, Plaintiff was 

disrespectful to Mr. Susa and Mr. Susa’s manager, Abby Kennedy, when she joined a meeting to 

discuss Plaintiff’s poor performance. Then, during a training session, Plaintiff was inattentive, 

leaning back in his chair, and put his head on the table rather than pay attention to the presenter.

Later, when leaving Yelp’s building and walking past the area where interview candidates 

typically sit, Plaintiff proceed to tell Yelp’s Facilities Coordinator, Randall Meagher, who Plaintiff 

evidently believed was an interview candidate, to “run while [he] still can.” In addition to Mr. 

Meagher, this event was witnessed by Receptionist Heather Webb and Security Specialist Amber 

Sutton. Mr. Meagher, Ms. Webb, and Ms. Sutton each provided statements regarding their 

witnessing of Plaintiff’s inappropriate comment.
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Based upon Plaintiff’s unprofessionalism, performance deficiencies, failure to follow 

directions, and his statement to Mr. Meagher to “run while he still can,” Defendant determined 

that Plaintiff lacked the necessary level of professionalism and good judgment to continue in his 

role. Accordingly, on June 17, 2016, Defendant terminated Plaintiff’s employment. 

Defendant denies that it engaged in any unlawful conduct towards Plaintiff and can 

demonstrate that its employment decisions were based on legitimate, non-discriminatory and nonretaliatory factors. Accordingly, Plaintiff’s discrimination and retaliation claims fail as a matter 

of law. See McDonnell-Douglas Corp. v. Green, 411 U.S. 892, 802 (1973); Hawn v. Executive 

Jet Mgmt., Inc., 546 F. Supp. 2d 703, 715 (D. Ariz. 2008).

2. A list of the elements of proof necessary for each count of the Complaint and each 

affirmative defense. 

Plaintiff:

Count One: Title VII – Hostile Work Environment – Plaintiff has two theories 

supporting relief:

A. The plaintiff seeks damages from the defendant for a hostile work environment caused 

by sexual harassment. The plaintiff has the burden of proving both of the following elements by 

a preponderance of the evidence: 

1. the plaintiff was subjected to a sexually hostile work environment by one or more 

coworkers; and

2. the defendant or a member of the defendant’s management knew or should have known 

of the harassment and failed to take prompt, effective remedial action reasonably calculated to 

end the harassment. 

Ninth Circuit Model Jury Instructions § 10.7

B. The plaintiff seeks damages against the defendant for a sexually hostile work 

environment while employed by the defendant. In order to establish a sexually hostile work 

environment, the plaintiff must prove each of the following elements by a preponderance of the 

evidence: 

1. the plaintiff was subjected to verbal conduct of a sexual nature;
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2. the conduct was unwelcome;

3. the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s 

employment and create a sexually abusive or hostile work environment;

4. the plaintiff perceived the working environment to be abusive or hostile; and

5. a reasonable man in the plaintiff’s circumstances would consider the working 

environment to be abusive or hostile. 

Whether the environment constituted a sexually hostile work environment is determined 

by looking at the totality of the circumstances, including the frequency of the harassing conduct, 

the severity of the conduct, whether the conduct was physically threatening or humiliating or a 

mere offensive utterance, and whether it unreasonably interfered with an employee’s work 

performance.

Ninth Circuit Model Jury Instructions § 10.5

Count Two: Title VII – Retaliation

The plaintiff seeks damages against the defendant for retaliation. The plaintiff has the 

burden of proving each of the following elements by a preponderance of the evidence: 

1. the plaintiff: 

participated in an activity protected under federal law, that is filing a complaint; 

or 

opposed an unlawful employment practice, that is the creation of a sexually hostile work 

environment; and

2. the employer subjected the plaintiff to an adverse employment action, that is, he was 

terminated; and

3. the plaintiff was subjected to the adverse employment action because of his participation 

in a protected activity or opposition to an unlawful employment practice. 

A plaintiff is "subjected to an adverse employment action" because of his participation in 

a protected activity or his opposition to an unlawful employment practice if the adverse 

employment action would not have occurred but for that participation or opposition.

Ninth Circuit Model Jury Instructions § 10.8
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Defendant:

A. Sexual Harassment Under Title VII

To establish a Title VII claim of hostile work environment based on sex, Plaintiff must 

show that: (1) he was subjected to verbal or physical conduct of a sexual nature; (2) the conduct 

was unwelcome; and (3) the conduct was sufficiently severe and pervasive as to alter the 

conditions of his employment and create an abusive work environment. Fuller v. City of Oakland, 

47 F.3d 1522, 1527 (9th Cir. 1995). Plaintiff must demonstrate that the conduct is severe enough 

to both subjectively and objectively create an abusive environment. Id. To make such a 

determination, the court considers “the frequency of the discriminatory conduct; its severity; 

whether it is physically threatening or humiliating, or a mere offense utterance; and whether it 

unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 

U.S. 17, 23 (1993).

Assuming Plaintiff can meet his burden, Defendant is not liable if: (1) it exercised 

reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) Plaintiff 

failed to take advantage of any preventive or corrective opportunities provided by Defendant or 

to avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. 

v. Ellerth, 524 U.S. 742, 765 (1998).

B. Retaliation Under Title VII

To establish a prima facie case of retaliation, Plaintiff must prove that: (1) he engaged in 

protected activity; (2) he suffered an adverse employment action; and (3) there was a causal 

connection between his protected activity and the adverse employment action. Surrell v. Cal. 

Water Serv. Co., 518 F.3d 1097, 1107-08 (9th Cir. 2008). If Plaintiff is able to establish a prima 

facie case, the burden of production (but not persuasion) shifts to Defendant to articulate some 

legitimate, non-retaliatory reason for the challenged action. Id. If Defendant does so, the burden 

shifts to Plaintiff to show that the articulated reason is pretextual either directly by persuading the 

Court that a retaliatory reason more likely motivated Defendant or indirectly by showing that 

Defendant’s proffered explanation is unworthy of credence. Texas Dep’t of Cmty. Affairs v. 

Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089 (1981). Plaintiff’s evidence of pretext must be both 
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specific and substantial. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003). 

Finally, Plaintiff bears the ultimate burden to establish that her protected activity was the “but for” 

cause of the alleged adverse action. Univ. of Tx. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 

2517, 2545 (2013).

C. Affirmative Defenses

Failure to State a Claim

Defendant is entitled to dismissal of Plaintiff’s Complaint if Defendant can demonstrate 

that it “‘appears beyond doubt that the plaintiff can prove no set of facts in support of his claim 

which would entitle him to relief.’” Still v. Michaels, 791 F. Supp. 248, 250 (D. Ariz. 1992) 

(quoting Conley v. Gibson, 355 U.S. 41, 45 (1957); Gillespie v. Civiletti, 629 F.2d 637, 640 (9th 

Cir. 1980)).

Failure to Exhaust Administrative Remedies

Plaintiff’s claims may be barred, in whole or in part, by his failure to exhaust administrative 

remedies and fulfill all conditions precedent to filing suit. See Karim-Panachi v. Los Angeles 

Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). A plaintiff must timely file a discrimination 

charge with the EEOC or an appropriate state agency and receive a right-to-sue letter. Id. (citing 

42 U.S.C. § 2000e-5(f)(1); Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1351 n.3 (9th Cir. 

1984)). “When a plaintiff fails to raise a Title VII claim before the EEOC, the district court lacks 

subject-matter jurisdiction to hear it.” Lowe, 775 F.2d 998,1003 (citing Shah v. Mt. Zion Hos. & 

Med. Ctr., 642 F.2d 268, 271-72 (9th Cir. 1981)).

Failure to Mitigate/Mitigation of Damages

Title VII requires Plaintiff to mitigate his damages by “us[ing] reasonable diligence in 

finding other suitable employment.” Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1496-97 (9th 

Cir. 1995) (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982)). To prove failure to 

mitigate, Defendant must show there were other substantially equivalent jobs available that 

Plaintiff could have obtained, and that Plaintiff failed to use reasonable diligence in seeking one. 

Id. at 1497. Plaintiff’s damages are barred to the extent he has failed to take such steps.
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Unclean Hands, Waiver And/Or Estoppel

Plaintiff’s suit may be barred if Plaintiff’s conduct impairs Defendant’s ability to defend 

itself against the lawsuit. Wauchope v. U.S. Dept. of State, 985 F.2d 1407, 1412 (9th Cir.1993); 

TransWorld Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676, 696 (9th Cir.1990); 

EEOC v. Alioto Fish Co., 623 F.2d 86, 88-89 (9th Cir.1980).

Legitimate, Non-discriminatory Reason For All Employment Practices

Defendant may rebut the presumption of discrimination by producing evidence of a 

legitimate, non-discriminatory reason for the alleged adverse employment action. See McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Punitive Damages/Good Faith Efforts

Punitive damages are “an extraordinary remedy” in employment discrimination cases. 

Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir. 1999). To recover punitive 

damages, Plaintiff must show that Defendant acted with “malice or with reckless indifference to 

[plaintiff’s] federally protected rights.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 535 

(1999) (citations and internal quotations omitted) (emphasis in original). An employer may not 

be vicariously liable for discriminatory employment decisions of its agents where these decisions 

are contrary to the employer’s “good-faith efforts to comply with Title VII.” Id. at 545 (citations 

omitted).

Moreover, Plaintiff’s claim for punitive damages is limited or barred, in whole or in part, 

by the Arizona and United States Constitutions, which prohibit the imposition of grossly excessive 

or arbitrary punishments. See State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003).

3. The factual and legal issues genuinely in dispute, and whether they can be narrowed 

by stipulation or motion;

Whether Plaintiff can make a prima facie case that he was subjected to a sexually hostile 

work environment.

Whether Plaintiff can make a prima facie case of retaliation.

Whether Defendant can prove it terminated Plaintiff for a legitimate non-discrimination, 

non-retaliatory reason.
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Whether Plaintiff can prove that Defendant’s alleged business reason was a pretext.

Whether Plaintiff can rebut Defendant’s showing that any alleged adverse employment 

actions were taken for legitimate, non-discriminatory and non-retaliatory reasons.

Whether Plaintiff is entitled to equitable relief (back pay, front pay, reinstatement, etc.) 

from the Court, and if so, the amount. 

Whether Plaintiff is entitled to seek compensatory damages from the jury.

Whether Plaintiff is entitled to seek punitive damages from the jury. 

Whether Plaintiff has properly mitigated his alleged damages.

Whether Defendant is entitled to any affirmative defense to Plaintiff’s claims.

4. The jurisdictional basis of the case, citing specific statutes.

28 U.S.C. § 1331 – federal question

5. Parties, if any, that have not been served, as well as parties that have not filed an 

Answer or otherwise appeared, including fictitious parties. 

None.

6. The names of parties not subject to the Court’s jurisdiction;

None.

7. Whether there are dispositive or partially dispositive issues to be decided by 

pretrial motions, and the legal issues about which any pretrial motions are contemplated;

Defendant anticipates filing a Motion for Summary Judgment on all issues.

8. Whether the case is suitable for reference to a United States Magistrate Judge or 

to a special master;

The case is not suitable for reference.

9. The status of related cases pending before other judges of this Court or before other 

courts;

None.

10. Suggested changes, if necessary, in the timing, form, or requirement for 

disclosures under Rule 26(a), Federal Rules of Civil Procedure, including a statement of 

when Initial Disclosures were made or will be made;
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None. MIDP Disclosures were made on March 19, 2018.

11. Proposed deadlines for:

(a) filing motions to amend the Complaint and to join additional parties;

May 25, 2018

(b) completion of all fact discovery;

November 22, 2018

(c) disclosure of expert testimony by plaintiff under Rule 26(a)(2), Fed. R. Civ. P.;

July 13, 2018

(d) disclosure of expert testimony by defendant under Rule 26(a)(2), Fed. R. Civ. P.;

August 24, 2018

(e) disclosure of rebuttal expert testimony;

September 7, 2018

(f) disclosure of all witnesses, exhibits and other matters under Rule 26(a)(3), Fed. R. 

Civ. P.;

October 12, 2018

(g) closure of all discovery;

November 22, 2018

(h) completing good faith discussions of settlement; and

November 22, 2018

(i) filing dispositive motions, including Daubert motions.

January 11, 2019

12. The scope of discovery, including any suggested changes in the limitations on 

discovery imposed by the Federal Rules of Civil Procedure, and whether discovery should 

be conducted in phases or should be limited to or focused upon particular issues.

The scope will involve depositions of the Plaintiff, Plaintiff’s former manager at Yelp, the 

HR Representative, and likely one or more co-workers, document production related to 

Defendant’s policies and personnel records related to this case and Plaintiff’s damages and 

mitigation efforts. 
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13. Estimated length of trial, and any suggestions for shortening the trial;

Three days

14. Whether a jury trial has been requested and whether the request for a jury trial 

is contested. If the request for a jury trial is contested, the Proposed Case Management Plan 

shall set forth the reasons that a trial by jury is in dispute;

A jury has been requested and not contested.

15. The prospects for settlement, including any request to have a settlement 

conference before another United States District Court Judge or Magistrate Judge, or any 

other request of the Court for assistance in settlement efforts;

The parties do not request a referral at this time, but may jointly make the request as initial 

discovery efforts are completed.

16. In class actions, the proposed dates for class certification proceedings and other 

class management issues. Such certification will result in the case being reassigned to the 

complex track for case management purposes;

Not applicable.

17. Whether any unusual, difficult, or complex problems or issues exist that would 

require this case to be placed on the complex track for case management purposes; and

None.

18. Any other matters that counsel believe will aid the Court in resolving this dispute 

in a just, speedy, and inexpensive manner.

None at this time.

Respectfully submitted this 2nd day of April, 2018,

JOSHUA CARDEN LAW FIRM, P.C.

By: s/Joshua W. Carden

Joshua W. Carden

Attorneys for Plaintiff

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C.

By: s/Alexandra J. Gill (with permission)

L. Eric Dowell

Alexandra J. Gill

Attorneys for Defendant Yelp Inc.
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I certify that the content of this 

document is acceptable to all 

persons required to sign the 

document and that authorization to 

electronically sign this document 

has been obtained.

By: s/Joshua W. Carden
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CERTIFICATE OF SERVICE

I certify that on the 2nd day of April, 2018, I electronically transmitted a PDF version of 

this document to the Office of the Clerk of the Court, using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants listed for this 

matter:

L. Eric Dowell

Alexandra J. Gill

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C.

2415 East Camelback Road, Suite 800

Phoenix, Arizona 85016

Attorneys for Defendant Yelp Inc.

/s/Joshua W. Carden

33568189.1