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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Joseph Sorge, 

Plaintiff, 

v. 

Yelp Incorporated, 

Defendant. 

No. CV-17-04518-PHX-SMM

ORDER 

Before the Court is Defendant Yelp Inc.’s Motion for Summary Judgment. (Doc. 

29.) The motion has been fully briefed and is ripe for review. (Docs. 29-30, 39-40, 45.) For 

the reasons that follow, the motion will be granted in part and denied in part. 

I. BACKGROUND 

On June 6, 2016, Plaintiff Joseph Sorge began working as an Associate Account 

Executive Trainee at Yelp Inc.’s (“Yelp”) Scottsdale, Arizona location. (Pl.’s Statement of 

Facts, Doc. 39 (“PSOF”) at 1.) His employment was terminated two weeks later on June 

17. (Id. at 10.) 

Sorge’s primary responsibility at Yelp was to build relationships and sell advertising 

to local business customers. (Id. at 1.) On Sorge’s first day, Yelp assigned him to a sales 

team with approximately 10 other trainees who started on the same day. (Id.) Sorge 

reported to Sales Manager Matthew Susa. (Id.) During his first week of employment, Sorge 

spent a majority of his work time in training and learning Yelp’s sales techniques and 

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procedures. (Id. at 2.) Sorge learned about various reports and information that Yelp 

required trainees to enter on a daily basis. (Id.) In his second week, Sorge continued training 

classes and also worked on building relationships and making sales to customers. (Id.) 

At the time of Sorge’s employment, there were approximately six to eight sales 

teams on Sorge’s sales floor. (Id.) The teams were permitted to select a team name and a 

team song that would occasionally play for approximately 10 to 30 seconds on the sales 

floor to celebrate a sale by the sales team. (Id.) One team, the “Razz Daddies,” selected 

“Straight to the Bank” (the “Song”) as their team song. (Id. at 12.) The parties dispute how 

often the Song was played during the work day. Sorge contends that it played anywhere 

from 5 to 20 times a day. (Doc. 30-1 at 71.) 

Sorge found two lyrics in the Song offensive. First, the song opened with the words, 

“I’m in my Lambo, faggot.” (Id.) Sorge was offended by use of the word “faggot” because 

it is hate speech toward a particular sexual orientation and Sorge has friends and family 

that are gay. (Id. at 71, 88.) The Song also included the line, “Homey, you’re a bitch. 

You’ve got feminine ways. You’ve got four lips and bleed for seven days.” (Id. at 71.) 

Sorge found this line to be offensive to women. (Id.) Sorge does not identify as a 

homosexual or a woman. (PSOF at 13.) 

Sorge alleges that he complained about the Song to Susa on June 16, 2016.1

 (Doc. 

39-1 at 2.) According to Sorge, he told Susa the Song was highly offensive and denigrating 

to homosexuals and women. (Doc. 30-1 at 104.) Susa responded by saying “it [was] 

company culture to play songs after a team sells to business owners” and that Sorge should 

“get over it” or words to that effect. (Doc. 39-1 at 2.) Sorge was terminated the following 

day. (PSOF at 10.) 

Yelp contends it terminated Sorge for his “unprofessional and disrespectful 

behavior.” (Doc. 45 at 9.) According to Yelp, as Sorge began to focus on sales in his second 

week of employment, Susa observed that Sorge repeatedly failed to follow specific 

 1

 Susa denies that Sorge raised any concerns regarding offensive music prior to his termination. (Doc. 30-1 at 8.) For purposes of summary judgment, the Court assumes the 

conversation occurred as Sorge recounts. 

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techniques and procedures required by Yelp. (Doc. 30 at 2.) On June 14, Susa met with 

Sorge to coach him on the importance of following Yelp processes. (PSOF at 3.) Susa 

followed up the conversation with an email. (Doc. 30-1 at 10.) On the same day, Susa 

observed that Sorge had failed to complete Yelp’s daily sales metrics documents. (Doc. 30 

at 3.) This document required trainees to enter their individual data covering calls made 

and appointments set. (PSOF at 3.) Despite receiving verbal reminders and calendar invites 

from Susa, Sorge failed to enter the required data three times in a row, including at the end 

of the day on June 13, and at lunch and the end of the day on June 14. (Id. at 4.) Susa sent 

Sorge an email reminding Sorge of these requirements and asking if anything was getting 

in the way of him completing the tasks. (Doc. 30-1 at 15.) Sorge replied “Good to go.” (Id.) 

On June 15, Susa reached out to his direct supervisor, Senior Sales Manager Abby 

Kennedy, to discuss Sorge’s repeated failures to follow Yelp’s processes and procedures 

and his failure to improve. (PSOF at 5; Doc. 30-1 at 18.) The email notes that Sorge was 

not recording vetting notes or updating his vetting list as required and that he was 

disregarding the processes and feedback Susa had given him. (Doc. 30-1 at 18.) 

On the morning of June 16, Kennedy joined Susa for a coaching session with Sorge. 

(PSOF at 5.) They discussed Sorge’s failure to complete the metrics document on a daily 

basis and his failure to follow Yelp’s procedure for vetting potential clients. (Id.) Susa and 

Kennedy perceived Sorge to act disrespectfully and resistant to their coaching. (Doc. 30-1 

at 5-6, 23.) According to Kennedy and Susa, Sorge laughed, interrupted them, and referred 

to Susa’s instruction as “you guys and your practices.” (Id.) Sorge denies that he was 

disrespectful and believed any laughing during the meeting was congenial. (Doc. 39-1 at 

3.) Kennedy and Susa also state that Sorge asked why Kennedy was present for the meeting 

and told Susa that he would prefer that she was not present for future meetings. (Doc. 30-

1 at 6, 23.) Sorge denies this occurred. (Doc. 39-1 at 3.) Following the meeting, Kennedy 

summarized these observations for Senior Manager Marla Castaneda in an email and 

sought her insight. (PSOF at 6; Doc. 30-1 at 30-31.) The email noted that the meeting was 

“alarming to say the least.” (Doc. 30-1 at 30.) 

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That same afternoon, Sorge attended a team-wide training event. (Doc. 39-1 at 2.) 

During the meeting, the Sales Director for the Scottsdale location, Heyward McAlpin, gave 

a presentation. (PSOF at 7.) Kennedy also attended the meeting. (Id.) Kennedy observed 

Sorge slouching in his chair, leaning back in his chair, putting his head down, not taking 

notes, and generally ignoring the presentation. (Doc. 30-1 at 23-24.) Sorge concedes that 

he may not have appeared in “peak state” but attributes that to his frustration with Susa’s 

response to his complaint about the Song and to being exhausted from having “[his] ears 

assaulted multiple times a day that week by the offensive song.” (Doc. 39-1 at 2-3.) He 

denies that he was ignoring the presentation and contends that note-taking was not required. 

(Id. at 2.) 

At the conclusion of the training session, at approximately 4:10 p.m., Sorge exited 

the building through the entry doors, passing the area where interview candidates usually 

wait. (PSOF at 7-8.) Kennedy was later informed by Facilities Coordinator Randall 

Meagher and his supervisor, Carmine Verderame, that when Sorge was exiting the 

building, he turned to Meagher, who was sitting in a chair where interview candidates 

usually wait, and said to him, “Run while you can,” or words to that effect. (Doc. 30-1 at 

24.) Two other Yelp employees, Heather Webb and Amber Sutton, also reported 

witnessing Sorge’s statement and recorded these observations in emails on June 17.(Id. at 

24, 32-38.) Webb told Kennedy that she assumed Sorge made the comment to Meagher 

because he believed Meagher was an interview candidate.2

 (Id. at 24, 147.) Sorge denies 

saying anything to Meagher or anyone else as he left that day. (Doc. 39-1 at 3.) 

Kennedy immediately informed Susa and McAlpin of Meagher and Webb’s account 

of Sorge’s statement. (Doc. 30-1 at 6, 24.) Kennedy and Susa then discussed with McAlpin 

Sorge’s behavior over the past week, including his alleged comments to Meagher, and 

recommended that Yelp terminate Sorge. (Id.) McAlpin approved the termination that 

 2

 Sorge objects to Kennedy’s declaration recounting how Sorge’s comments were reported to her, arguing that Kennedy’s report of others’ statements is hearsay. (PSOF at 8.) However, Kennedy does not offer their statements for their truth but rather to show 

what she believed occurred at the time she and Susa were considering Sorge’s termination. Therefore, Sorge’s objection is overruled. 

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evening. (Id.) 

On the morning of June 17, Susa and Human Resources Representative Nicole 

Berger met with Sorge. (PSOF at 10.) They informed him that his employment was 

terminated, effective immediately, because of his unprofessional and disrespectful conduct 

and failure to demonstrate improvement in following Yelp’s processes and procedures. 

(Id.) Susa discussed the observations reported to him regarding Sorge’s behavior at the 

McAlpin training session3 and his comments to Meagher as he left. (Doc. 30-1 at 7, 70.) 

He stated that the final reason for Sorge’s termination was the comment made to Meagher. 

(PSOF at 11.) The formal paperwork documenting Sorge’s termination states that the 

primary reason for his termination was “Not a good [sic] Cultural Fit.” (Doc. 39-1 at 12.) 

At the meeting, Sorge complained that he experienced a hostile work environment 

at Yelp because he found the Song playing multiple times per day highly offensive, and he 

stated that his termination felt like retaliation for discussing the Song with Susa. (Doc. 30-

1 at 70-71.) Sorge also complained that Susa used the “F-word” frequently when 

addressing Sorge and his teammates. (PSOF at 11; Doc. 39-1 at 4.) Sorge then stated that 

he would likely take legal action because he believed he was being retaliated against. (Doc. 

30-1 at 82.) 

On December 5, 2017, Sorge filed suit against Yelp in federal district court alleging 

that he suffered sexual harassment and retaliation in violation of Title VII of the Civil 

Rights Act of 1964. (Doc. 1.) Sorge states two causes of action: (1) Yelp created and 

fostered a hostile work environment by playing loud, offensive music demeaning to women 

and homosexuals; and (2) Yelp retaliated against Sorge by immediately terminating him 

after he engaged in the protected activity of complaining about the hostile work 

environment created by the Song. (Id. at 4-5.) Yelp now moves for summary judgment on 

each of Sorge’s claims. (Doc. 29.) 

. . . . 

 3

 Sorge highlights that during the termination meeting, Susa initially stated that he personally saw Sorge not paying attention or taking notes at the McAlpin training. (PSOF at 10; Doc. 30-1 at 70.) When Sorge noted that Susa was not at the training, Susa then stated that someone told him about it. (Doc. 30-1 at 70.) 

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II. LEGAL STANDARD 

 “A party may move for summary judgment, identifying each claim or defense—or 

the part of each claim or defense—on which summary judgment is sought.” Fed. R. Civ. 

P. 56(a). A court must grant summary judgment if the pleadings and supporting documents, 

viewed in the light most favorable to the nonmoving party, show “that there is no genuine 

dispute as to any material fact and that the movant is entitled to judgment as a matter of 

law.” Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nev. Fed. 

Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts 

are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also Jesinger, 

24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit under 

the governing law will properly preclude the entry of summary judgment.” Anderson, 477 

U.S. at 248. The dispute must also be genuine, that is, the evidence must be “such that a 

reasonable jury could return a verdict for the nonmoving party.” Id.; see Jesinger, 24 F.3d 

at 1130. The court will determine whether a genuine issue of material fact exists through 

the “lens of the quantum of proof applicable to the substantive claim at issue.” Steven 

Baicker-McKee et al., Federal Civil Rules Handbook 1104 (Thomson Reuters 25th ed. 

2018); see Anderson, 477 U.S. at 254. 

A principal purpose of summary judgment is “to isolate and dispose of factually 

unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 

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.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 

1994). The moving party need not disprove matters on which the opponent has the burden 

of proof at trial; instead, the moving party may identify the absence of evidence in support 

of the opposing party’s claims. See Celotex, 477 U.S. at 317, 323-24. The party opposing 

summary judgment need not produce evidence “in a form that would be admissible at trial 

in order to avoid summary judgment.” Id. at 324. However, the opposing party “may not 

rest upon the mere allegations or denials of [the party’s] pleadings, but . . . must set forth 

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specific facts showing that there is a genuine issue for trial.” See Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e) 

(1963) (amended 2010)). 

III. ANALYSIS 

Yelp moves for summary judgment on Sorge’s claims for hostile work environment 

and retaliation. (Doc. 29 at 6-16.) It also moves for summary judgment on Sorge’s claim 

for damages. (Id. at 16-18.) The Court discusses each claim in turn. 

A. Hostile Work Environment 

Yelp argues it is entitled to summary judgment on Sorge’s hostile work environment 

claim because Sorge is a heterosexual man and, therefore, cannot show that he experienced 

sexual harassment because of his sex when listening to lyrics that were offensive to 

homosexuals and women. (Doc. 29 at 7.) Yelp further contends that even if taken as true, 

the conduct Sorge complains of was neither sufficiently severe nor pervasive to create a 

hostile work environment that is actionable under Title VII. (Id. at 10.) Because the Court 

finds Sorge cannot show that he was sexually harassed because of his sex, the Court does 

not reach whether the alleged harassment was severe or pervasive. 

Under Title VII, it is unlawful for an employer “to discriminate against any 

individual with respect to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). This 

prohibition “extends to the creation of a hostile work environment.” Fuller v. Idaho Dep’t 

of Corr., 865 F.3d 1154, 1161 (9th Cir. 2017) (quoting Harris v. Forklift Sys., Inc., 510 

U.S. 17, 21 (1993)). To establish a claim for hostile work environment, the plaintiff must 

show that: “(1) she 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 the victim’s employment and create an abusive working environment.” 

Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (quoting Fuller v. City 

of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)). Additionally, a hostile work environment 

claim is actionable only to the extent the harassment occurred “because of” the plaintiff’s 

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sex. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (citing Oncale 

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)); 42 U.S.C. § 2000e-2(a)(1) 

(prohibiting discrimination in conditions of employment “because of [claimant’s] . . . sex”) 

Sorge identifies as a heterosexual man, but he complains of a work environment 

hostile to women and homosexuals. Because Sorge is neither a woman nor homosexual, 

his complaints about the Song cannot support a claim for hostile work environment as he 

has not experienced harassment because of his own sex. See Nichols, 256 F.3d at 874; see 

also Patee v. Pac. Nw. Bell Tel. Co., 803 F.2d 476, 478 (9th Cir. 1986) (holding group of 

men did not have standing to bring a discrimination claim on behalf of female co-workers). 

Sorge’s arguments in support of this claim are unavailing. First, Sorge argues that 

the context of the Song’s lyrics makes it clear that the rapper is actually using offensive 

language to insult a heterosexual man and Sorge, thus, experienced harassment on the basis 

of his sex as a heterosexual man. (Doc. 40 at 4.) This is a rewriting of Sorge’s claim. The 

Complaint clearly states that Yelp created “a pervasive hostile work environment that 

tolerates . . . music demeaning to women and homosexuals.” (Doc. 1 at 4.) At no point does 

Sorge allege that the Song was demeaning to heterosexual men. Sorge will not be permitted 

to amend the theory of liability stated in his Complaint in opposition to summary judgment. 

See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000) (holding plaintiff 

could not present new theory of liability in opposition to summary judgment). 

Next, Sorge points to Yelp’s own “no tolerance” policy, stating that the lyrics of the 

Song violated the policy and that the policy is written for the benefit of those associated 

with anyone in a protected class, not just those within a protected class. (Doc. 40 at 4.) This 

argument is irrelevant. Yelp’s “no tolerance” policy does not alter the statutory 

requirements of Title VII, which requires that the discrimination occur because of the 

plaintiff’s sex. Sorge does not identify any case law stating otherwise. 

Sorge’s next argument is similarly irrelevant. Sorge argues that “hostile 

environment cases based on sex do not require evidence that the treatment was motivated 

by sexual desire and the treatment need not to be sex specific.” (Doc. 40 at 5 (emphasis in 

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original) (citing Zetwick v. Cnty. of Yolo, 850 F.3d 436, 446 (9th Cir. 2017)).) This 

statement is true but does not advance Sorge’s cause. The shortcoming in Sorge’s claim is 

not that it is not “sex specific”; the fault is that Sorge does not belong to the protected class 

that was the subject of the offensive lyrics. 

Sorge also quotes at length from the Supreme Court’s decision in Oncale v. 

Sundowner Offshore Servs., Inc., to argue that men are protected from sexually hostile 

work environments under Title VII. (Doc. 40 at 6-7.) This is true but, once again, irrelevant 

to the question before the Court. The critical issue is “whether members of one sex are 

exposed to disadvantageous terms or conditions of employment to which members of the 

other sex are not exposed.” Id. at 80 (1998) (citing Harris, 510 U.S. at 25 (Ginsburg, J., 

concurring)). Sorge has alleged that women and homosexuals were subject to 

disadvantageous terms or conditions, and Sorge is not a member of either class. Therefore, 

the statutory terms of Title VII bar Sorge from bringing this claim. 

Finally, Sorge argues that the “zone of interests” protected by Title VII encompasses 

his claim regardless of his sex or sexual orientation. (Doc. 40 at 5.) In support of this 

argument, Sorge points to the Supreme Court’s decision in Thompson v. N. Am. Stainless, 

LP, 562 U.S. 170 (2011). In Thompson, the Supreme Court addressed who has standing to 

bring a retaliation claim under Title VII. Under Title VII, “a civil action may be brought . 

. . by the person claiming to be aggrieved.” 42 U.S.C. § 2000e-5(f)(1). The Thompson 

Court held that the term “aggrieved” incorporates the “zone of interests” test applied in 

suits brought under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. 562 U.S. at 

178. The Court was merely interpreting the standing provision of Title VII; it did not alter 

the statutory requirements of any claims under Title VII. Therefore, even if Sorge’s claim 

falls within the zone of interests protected by Title VII, a question the Court does not reach 

here, he still cannot satisfy the element of a hostile environment claim requiring that the 

discrimination occur because of his sex. See Nichols, 256 F.3d at 874. 

Therefore, because Sorge cannot show that the alleged discrimination occurred 

because of his sex, summary judgment is proper on Sorge’s claim for hostile work 

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environment. 

B. Retaliation 

Yelp also moves for summary judgment on Sorge’s retaliation claim, arguing that 

Sorge cannot make a prima facie case of retaliation; it has proffered evidence of legitimate, 

non-retaliatory reasons for Sorge’s termination; and Sorge cannot demonstrate Yelp’s 

reasons are pretextual. (Doc. 29 at 14.) 

A plaintiff may use the McDonnell-Douglas burden-shifting framework to establish 

a retaliation claim. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 

2006) (citing Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987)). First, “[t]o 

establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) a protected 

activity; (2) an adverse employment action; and (3) a causal link between the protected 

activity and the adverse employment action.” Id. at 1034-35 (9th Cir. 2006) (citing Steiner 

v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994)). Once the plaintiff has 

made a prima facie case, the burden then shifts to the defendant “to advance legitimate, 

non-retaliatory reasons for any adverse actions taken.” Steiner, 25 F.3d at 1464. To meet 

its burden, the defendant “must offer evidence that the adverse action was taken for other 

than impermissibly discriminatory reasons.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 

(9th Cir. 1994) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)), 

as amended on denial of reh’g (July 14, 1994). 

If the defendant meets its burden of production, “the plaintiff bears the ultimate 

burden of demonstrating that the reason was merely a pretext for a discriminatory motive.” 

Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (citing Steiner, 25 F.3d at 1464-

65). The plaintiff can satisfy this burden by producing direct or circumstantial evidence of 

retaliatory motive, but “[m]erely denying the credibility of the employer’s proffered 

reasons is insufficient to withstand summary judgment.” Munoz v. Mabus, 630 F.3d 856, 

865 (9th Cir. 2010) (citing Lindsey v. Shalmy, 29 F.3d 1382, 1385 (9th Cir. 1994)). 

Sorge alleges that his termination was retaliation for complaining about the Song’s 

lyrics to Susa. (Doc. 1 at 4-5.) Yelp argues that Sorge cannot establish a prima facie case 

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of retaliation. Specifically, Yelp argues Sorge cannot demonstrate that he engaged in a 

protected activity for the same reason his hostile work environment claim failed: Sorge is 

a heterosexual man. (Doc. 29 at 13-14.) However, Yelp’s argument misconstrues what 

constitutes a protected activity for purposes of a retaliation claim. An employee need not 

prove an “unlawful employment practice” to prevail on a claim of unlawful retaliation; 

rather, “the opposed conduct 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) (citing Silver v. KCA, Inc., 586 F.2d 138, 142 (9th Cir. 1978)). “Furthermore, an 

employee’s complaints about the treatment of others is considered a protected activity, 

even if the employee is not a member of the class that he claims suffered from 

discrimination, and even if the discrimination he complained about was not legally 

cognizable.” Ray, 217 F.3d at 1240 n.3 (citing Moyo v. Gomez, 40 F.3d 982 (9th Cir. 

1994)). Thus, Sorge’s alleged complaint about the Song is not excluded from protection 

under Title VII’s retaliation provision merely because Sorge is not a woman or a 

homosexual. Because Yelp makes no further arguments against Sorge’s prima facie case, 

the Court assumes, without finding, that Sorge has established his prima facie case. 

Yelp, in turn, has carried its burden of production and provided adequate evidence 

of a legitimate, non-retaliatory reason for Sorge’s termination. Yelp states that it terminated 

Sorge for his “unprofessional and disrespectful behavior,” his failure to follow Yelp 

processes, and his “Run while you can” comment to Meagher. (Doc. 29 at 14.) Yelp has 

provided thorough contemporaneous documentation of Sorge’s supervisors’ belief that 

Sorge was acting disrespectfully and that Sorge made the comment to Meagher. (Doc. 30-

1 at 10-20, 28-37.) 

Sorge challenges the accuracy of his supervisors’ belief, arguing that he did not 

make the comment to Meagher and his supervisors misinterpreted or misrepresented his 

behavior. (See generally PSOF.) However, in judging the legitimacy of proffered nonretaliatory reasons, “it is not important whether they were objectively false.” Villiarimo v. 

Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (emphasis in original). “Rather, 

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courts only require that an employer honestly believed its reason for its actions, even if its 

reason is foolish or trivial or even baseless.” Id. at 1063 (internal quotations omitted) (citing 

Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001)). Sorge provides no evidence 

that his supervisors did not honestly believe that he was behaving disrespectfully or that he 

made the comment to Meagher. Therefore, Yelp has provided enough evidence to proffer 

a legitimate, non-retaliatory reason for Sorge’s termination. 

In response, Sorge argues that, despite Yelp’s evidence of a legitimate, nonretaliatory reason, his retaliation claim should go to a jury because of the temporal 

proximity between his complaint to Susa about the Song and his termination approximately 

24 hours later. (Doc. 40 at 8-9.) While unclear if Sorge offers this evidence to support his 

prima facie case or as evidence of pretext, the Court considers it in the context of pretext 

here. See Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 n.8 (9th Cir. 1989) (citing 

Burdine, 450 U.S. at 255 n.10; Miller v. Fairchild Indus., Inc., 797 F.2d 727, 732 (9th Cir. 

1986) (noting that “[t]o show pretext, a plaintiff may rely on evidence offered to establish 

the prima facie case”), as amended on denial of reh’g and reh’g en banc (Sept. 19, 1989). 

The Ninth Circuit Court of Appeals has held that “[i]n some cases, temporal 

proximity can by itself constitute sufficient circumstantial evidence of retaliation for 

purposes of both the prima facie case and the showing of pretext.” Dawson v. Entek Int’l, 

630 F.3d 928, 937 (9th Cir. 2011) (citing Bell v. Clackamas Cty., 341 F.3d 858, 865-66 

(9th Cir. 2003); Miller, 797 F.2d at 731-32); see also Passantino v. Johnson & Johnson 

Consumer Prod., Inc., 212 F.3d 493, 507 (9th Cir. 2000) (citing Strother v. S. Cal. 

Permanente Med. Grp., 79 F.3d 859, 870-71 (9th Cir. 1996)) (noting “evidence based on 

timing can be sufficient to let the issue go to the jury, even in the face of alternative reasons 

proffered by the defendant”). In at least two cases, the Ninth Circuit has found that a very 

close temporal proximity between a protected activity and an adverse action, without 

further circumstantial evidence of retaliatory intent, is sufficient to raise a jury question as 

to pretext. In Dawson v. Entek Int’l, the Ninth Circuit held that two days between the 

plaintiff’s protected activity and discharge was sufficient to raise a triable issue of fact. 630 

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F.3d at 937. Similarly, in Kerr v. Jewell, the Ninth Circuit held that a temporal proximity 

of less than a month’s time, without more, “provide[d] a sufficient basis from which to 

infer pretext.” 549 F. App’x 635, 639 (9th Cir. 2013) (citing Dawson, 630 F.3d at 937). 

Although the Ninth Circuit has warned against a mechanical and simplistic application of 

the temporal proximity criterion, see Coszalter v. City of Salem, 320 F.3d 968, 977-78 (9th 

Cir. 2003), the holdings in Dawson and Kerr provide no guidance as to when a similar 

temporal proximity would be insufficient to infer pretext without further circumstantial 

evidence. Therefore, the Court is compelled to conclude that the temporal proximity of 24 

hours between Sorge’s alleged complaint and his termination is sufficient to raise a triable 

issue as to pretext. 

Additionally, according to Ninth Circuit law, a reasonable jury could potentially 

find evidence of retaliatory intent in Susa’s response to Sorge’s complaint and Yelp’s 

formally stated reason for Sorge’s termination. (See Doc. 40 at 9-10.) Sorge alleges that 

when he complained to Susa about the offensive lyrics, Susa responded by saying “it [was] 

company culture” and that Sorge should “get over it.” (Doc. 39-1 at 2.) Then on the formal 

paperwork documenting Sorge’s termination, Yelp noted that the primary reason for 

Sorge’s termination was “Not a good [sic] Cultural Fit.” (Id. at 12.) Susa’s response to 

Sorge’s complaint suggests, at the very least, that Susa was not open to Sorge’s complaint, 

and the parallel between the formally documented reason for Sorge’s termination and 

Susa’s response could suggest a connection between Sorge’s complaint and his 

termination.4

 Standing alone, this connection would not constitute “specific” and 

“substantial” circumstantial evidence sufficient to defeat a motion for summary judgment. 

 4

 Sorge also argues that Yelp gave shifting or changing reasons for its actions, from 

which a fact-finder could infer retaliatory intent. (Doc. 40 at 11.) Sorge notes that the reasons Yelp offers here for his termination are different than the reason stated in his 

termination paperwork, which stated that he was “Not a good [sic] Cultural Fit.” (Id.) 

However, this argument is a misrepresentation of the record. Sorge does not dispute that at the time of his termination he was informed orally that he was being terminated for his unprofessional and disrespectful conduct, for his failure to follow Yelp’s processes and procedures, and for the comments he made to Meagher. (PSOF at 10-11.) These are the same reasons Yelp offers here for Sorge’s termination. The statement that Sorge was not a good cultural fit in his termination paperwork does not contradict, but rather encompasses, each of these reasons. 

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See Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001) 

(quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998)) (noting 

circumstantial evidence of pretext must be “specific” and “substantial”). However, it does 

add some, albeit limited, support for inferring a retaliatory motive in light of the close 

temporal proximity between Sorge’s complaint and his termination. For these reasons, the 

Court will deny Yelp’s motion for summary judgment as to Sorge’s retaliation claim. 

C. Damages 

Yelp also moves for summary judgment on Sorge’s claim for damages. (Doc. 29 at 

16-18.) Sorge seeks $300,000 in compensatory and punitive damages and $5,600 in lost 

wages for 8 weeks of unemployment in the 12 months following his termination. (Doc. 30-

1 at 169.) 

Yelp first moves for summary judgment on Sorge’s claim for back pay, arguing 

Sorge cannot provide evidence of his entitlement to back pay. (Doc. 29 at 16-17.) While 

Sorge did not respond to Yelp’s damages argument, there is sufficient evidence in the 

record to create an issue of fact as to Sorge’s entitlement to back pay. Sorge was terminated 

from Yelp on June 17, 2017, and began employment with Impact Payments Recruiting 

(“Impact”) a week later on June 28, 2016. (PSOF at 16.) Sorge’s starting salary at Impact 

was $40,000, which was higher than his salary of $30,000 at Yelp. (PSOF at 17.) Sorge 

voluntarily resigned from Impact on September 16, 2016. (Id.) Then, beginning on October 

24, 2016, Sorge worked at The Lucas Group for approximately one week before Sorge was 

involuntarily terminated. (Id.) Sorge does not identify his salary at The Lucas Group. Nor 

does he provide evidence of being employed or unemployed following his termination 

from The Lucas Group. 

Based on these facts, Sorge could potentially be entitled to back pay for the one 

week of unemployment between his termination at Yelp and subsequent employment at 

Impact and the five weeks of unemployment between his leaving Impact and starting at 

The Lucas Group. There is no further evidence supporting Sorge’s claim for an additional 

two weeks of unemployment. Therefore, Sorge may only seek back pay for a total of six 

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weeks, rather than eight. 

However, Yelp argues that Sorge should be prohibited from obtaining back pay for 

any unemployment following his voluntarily resignation from Impact because Impact paid 

a higher salary. (Doc. 29 at 17.) Yelp contends voluntarily resignation from a higher paying 

position should cut off entitlement to back pay. (Id. (citing Palasota v. Haggar Clothing 

Co., 499 F.3d 474, 486 (5th Cir. 2007)).) Although framed differently by Yelp, the critical 

question Yelp presents is whether Sorge was mitigating his damages when he voluntarily 

resigned. 

A Title VII plaintiff seeking back pay has “a duty to mitigate damages by seeking 

alternative employment with ‘reasonable diligence.’” Caudle v. Bristow Optical Co., 224 

F.3d 1014, 1020 (9th Cir. 2000) (quoting 42 U.S.C. § 2000e-5(g)(1) (1994)), as amended 

on denial of reh’g (Nov. 2, 2000). The plaintiff “need not go into another line of work, 

accept a demotion, or take a demeaning position,” but the plaintiff “forfeits his right to 

backpay if he refuses a job substantially equivalent to the one he was denied.” Ford Motor 

Co. v. E.E.O.C., 458 U.S. 219, 231-32 (1982) (footnotes omitted). Yelp bears the burden 

of proving Sorge failed to mitigate his damages. See Odima v. Westin Tucson Hotel, 53 

F.3d 1484, 1497 (9th Cir. 1995). 

The Court finds Yelp has failed to carry its burden at this stage of litigation. Sorge 

stated in his deposition that he voluntarily resigned from Impact because of the distance of 

his commute and “a cultural clash with one of the owners.” (Doc. 30-1 at 128.) Neither 

party addressed whether the position with Impact was “substantially equivalent” to Sorge’s 

position with Yelp, especially in light of Sorge’s stated reasons for leaving. Without this, 

the Court is unprepared to determine whether Sorge’s resignation for these reasons 

constitutes a failure to mitigate his damages. Accordingly, the Court will not grant 

summary judgment as to Sorge’s entitlement to back pay for the weeks between his 

resignation from Impact and his employment at The Lucas Group. It remains to be seen, 

however, whether Sorge may persuade a jury at trial that he is entitled to back pay for 

anything more than the one week between his Yelp and Impact positions. 

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Yelp also moves for summary judgment on Sorge’s claim for emotional damages. 

(Doc. 29 at 17-18.) Yelp argues that because Sorge cannot offer evidence of medical 

records, counseling, or physical symptoms resulting from emotional distress he cannot 

show that he is entitled to emotional damages. (Id.) In making this argument, Yelp relies 

on two district court cases addressing the availability of damages in diversity-jurisdiction 

contract disputes. (Id. at 17 (citing Hastings v. Bank of Am. NA, No. CV-13-00834-PHXDLR, 2014 WL 11514488, at *4 (D. Ariz. Dec. 9, 2014); Loza v. Am. Heritage Life Ins. 

Co., No. CV-09-01118-PHX-DGC, 2012 WL 1019033, at *8 (D. Ariz. Mar. 26, 2012)).) 

These cases have no relevance to the quantum of proof necessary to establish emotional 

damages in a federal employment-discrimination case. The Ninth Circuit has explicitly 

rejected any requirement for objective or substantial evidence of emotional damages in 

employment discrimination cases. See Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 

1040 (9th Cir. 2003); Passantino, 212 F.3d at 513. A plaintiff’s personal testimony 

regarding even mild, non-physical forms of emotional distress is sufficient to support an 

award of emotional damages. Zhang, 339 F.3d at 1040 (9th Cir. 2003) (upholding a jury 

award for emotional-distress damages where plaintiff testified that his termination had 

killed his dream and damaged his reputation). 

Sorge testified at his deposition that his termination was distressing and 

embarrassing and that he experienced overall disgust, “a sick-to-my-stomach feeling,” and 

difficulty getting out of bed. (Doc. 30-1 at 113, 134.) He also suffered the stress of looking 

for a new job. (Id. at 114.) This is sufficient to survive a motion for summary judgment on 

his claim for emotional damages. See Zhang, 339 F.3d at 1040. 

Therefore, Yelp’s motion for summary judgment on Sorge’s damages claim is 

granted only to the extent that Sorge is limited to seeking six weeks of back pay and may 

not seek back pay for any time following his employment at The Lucas Group. 

IV. CONCLUSION 

Based on the foregoing, Yelp’s motion for summary judgment will be granted in 

part and denied in part. Sorge’s hostile work environment claim will be dismissed and his 

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claim for back pay will be limited to the six weeks of unemployment between his 

termination from Yelp and his employment at The Lucas Group. Sorge’s claim for 

retaliation and other damages survive the motion for summary judgment. 

Accordingly, 

IT IS HEREBY ORDERED granting in part and denying in part Yelp Inc.’s 

Motion for Summary Judgment. (Doc. 29.) 

IT IS FURTHER ORDERED dismissing Sorge’s claim for hostile work 

environment. 

IT IS FURTHER ORDERED limiting Sorge’s damages claim for back pay to the 

six weeks of unemployment between his termination from Yelp and his employment at The 

Lucas Group. 

Dated this 25th day of June, 2019. 

Honorable Stephen M. McNamee

Senior United States District Judge

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