El-Hakem v. Bjy Inc. , 415 F.3d 1068 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAMDOUH EL-HAKEM, 
Plaintiff-Appellee, No. 03-35514
v.
 D.C. No.
CV-01-00663-BR
BJY INC., a foreign corporation;
GREGG YOUNG, an individual,
Defendants-Appellants.

MAMDOUH EL-HAKEM, 
Plaintiff-Appellant, No. 03-35544
v.
 D.C. No.
CV-01-00663-AJB
BJY INC., a foreign corporation;
GREGG YOUNG, an individual,
Defendants-Appellees.

MAMDOUH EL-HAKEM, 
Plaintiff-Appellee, No. 04-35063
v.
 D.C. No.
CV-01-00663-AJB
BJY INC., a foreign corporation;
GREGG YOUNG, an individual, OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
December 8, 2004—Portland, Oregon
8567
8568 EL-HAKEM v. BJY INC.
Filed July 21, 2005
Before: Thomas G. Nelson, Johnnie B. Rawlinson, Circuit
Judges, and William W Schwarzer,* District Judge.
Opinion by Judge Rawlinson
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
EL-HAKEM v. BJY INC. 8571
COUNSEL
Krishna Balasubramani, Sather, Byerly and Holloway,
LLP, Portland, Oregon, for the defendants-appellants/cross-
appellees.
Patty T. Rissberger (briefed), Craig A. Crispin (argued), Cris-
pin Employment Lawyers, Portland, Oregon, for the plaintiff-
appellee/cross-appellant.
OPINION
RAWLINSON, Circuit Judge:
This case presents challenges to the district court’s post-
verdict rulings following a jury trial. Because the district court
properly resolved the parties’ respective motions, we affirm.
8572 EL-HAKEM v. BJY INC.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Mamdouh El-Hakem, who is of Arabic heritage,
brought this action against his former employer BJY, Inc., and
Gregg Young, BJY’s Chief Executive Officer, for employ-
ment discrimination, wrongful termination, and failure to pay
wages. Claims were made under 42 U.S.C. § 1981; Title VII
of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, as
amended); the Fair Labor Standards Act (29 U.S.C. § 201 et
seq.); Oregon Revised Statutes § 652.140 et seq.; and related
state statutes.
El-Hakem’s racial discrimination claims stemmed from
Young’s repeated references to El-Hakem as “Manny.”
Despite El-Hakem’s strenuous objections, Young insisted on
using the non-Arabic name rather than “Mamdouh,” El-
Hakems’s given name. In Young’s expressed view, a “West-
ern” name would increase El-Hakem’s chances for success
and would be more acceptable to BJY’s clientele.
El-Hakem’s wage claims were predicated upon assertions
that BJY failed to pay El-Hakem regular and overtime wages
during his employment and after his employment with BJY
ended, which occurred when BJY closed the office where El-
Hakem worked.
After a five-day trial, the jury completed interrogatories on
separate special verdict forms for each of the Defendants. The
jury found that Young intentionally discriminated against El-
Hakem on the basis of his race in violation of 42 U.S.C.
§ 1981 by creating a hostile work environment, and awarded
him $15,000 in compensatory damages and $15,000 in puni-
tive damages. In addition, the jury found that BJY failed to
pay El-Hakem regular wages in the amount of $11,051.64 due
at the time El-Hakem’s employment ended.
The jury found in favor of the Defendants on El-Hakem’s
remaining claims, including his hostile work environment,
EL-HAKEM v. BJY INC. 8573
wrongful termination and retaliation claims against BJY.
Although the jury concluded that El-Hakem’s complaints
about his unpaid wages were a substantial motivating factor
in BJY’s decision to terminate him, it also concluded that
BJY would have made the same termination decision even if
El-Hakem had not complained.
Both Young and El-Hakem moved for judgment as a matter
of law. Young contended that he could not be held liable for
racial discrimination in violation of § 1981 because his con-
duct was not race-based. El-Hakem asserted that BJY was
vicariously liable for racial discrimination pursuant to Title
VII, and that the “same decision” defense does not apply to
a wage-retaliation claim asserted under Oregon’s wage pro-
tection statutes.
The district court denied Young’s motion in its entirety. El-
Hakem’s motion was granted to the extent he sought to
impose vicarious liability upon BJY for racial discrimination,
and the district court amended the judgment to reflect BJY’s
vicarious liability on the racial discrimination claim. El-
Hakem’s motion was denied regarding application of the
“same decision” defense to his state law wage-retaliation
claim.
Each party appealed the adverse portions of the court’s
post-verdict rulings. Young and BJY also appealed the district
court’s failure to apportion the attorney’s fees awarded to El-
Hakem.
II. STANDARDS OF REVIEW
The district court’s decision on a motion for a judgment as
a matter of law is reviewed de novo. LaLonde v. County of
Riverside, 204 F.3d 947, 959 (9th Cir. 2000). We view the
evidence in the light most favorable to the non-moving party,
and all reasonable inferences are drawn in that party’s favor.
Id. A motion for a judgment as a matter of law is properly
8574 EL-HAKEM v. BJY INC.
granted only if no reasonable juror could find in the non-
moving party’s favor. Sanghvi v. City of Claremont, 328 F.3d
532, 536 (9th Cir. 2003). A district court’s determination that
a jury’s verdict is internally inconsistent is also reviewed de
novo. Norris v. Sysco Corp., 191 F.3d 1043, 1047 (9th Cir.
1999).
Attorney fee awards are reviewed for an abuse of discre-
tion. Corder v. Gates, 947 F.2d 374, 377 (9th Cir. 1991). A
“district court’s fee award will be overturned [only] if it is
based on an inaccurate view of the law or a clearly erroneous
finding of fact.” Id. (citations omitted). We review the district
court’s interpretation of state law de novo. Woods v. Graphic
Comm., 925 F.2d 1195, 1199 (9th Cir. 1991).
III. DISCUSSION
1. The District Court Properly Denied Young’s Motion
for Judgment as a Matter of Law on the Racial
Discrimination Claim
[1] Defendants argue that they could not be held liable for
intentionally discriminating on the basis of race under § 1981,
because the name “Manny” is not a racial epithet. We dis-
agree with Defendants’ premise. Their contention that action-
able race discrimination must be based on physical or
“genetically determined characteristics such as skin color”
ignores the broad reach of § 1981. In Saint Francis Coll. v.
Al-Khazraji, 481 U.S. 604, 613 (1987), the Supreme Court
explained that “a distinctive physiognomy is not essential to
qualify for § 1981 protection.” Rather, the section was “in-
tended to protect from discrimination identifiable classes of
persons who are subjected to intentional discrimination solely
because of their ancestry or ethnic characteristics.” Id.
[2] A group’s ethnic characteristics encompass more than
its members’ skin color and physical traits. Names are often
a proxy for race and ethnicity. See Orhorhaghe v. INS, 38
EL-HAKEM v. BJY INC. 8575
F.3d 488, 498 (9th Cir. 1994) (recognizing that “discrimina-
tion against people who possess surnames identified with par-
ticular racial or national groups is discrimination on the basis
of race or national origin.”) (citation omitted).
In Manatt v. Bank of America, 339 F.3d 792, 794-95 (9th
Cir. 2003), we identified two incidents of racial derogation
directed at a Chinese woman. One instance occurred when
other employees ridiculed the woman for mispronouncing
“Lima,” and the other consisted of employees pulling their
eyes back with their fingers in mocking imitation of the
appearance of Asians. Id. at 798. Although the second
instance is an example of discrimination directed at a
genetically-determined physical trait, the first is not. In the
first instance, the coworkers were ridiculing the woman’s lan-
guage and pronunciation rather than a physical characteristic.
Thus, Defendants misread Manatt when they cite it for the
proposition that racial discrimination must be based solely on
physical traits.
[3] We also reject Defendants’ contention that Young’s
conduct was not frequent or pervasive enough to create a hos-
tile work environment. It is true that “[c]onduct that is not
severe or pervasive enough to create an objectively hostile or
abusive work environment . . . is beyond Title VII’s purview.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). It is also
correct that this standard also applies to the § 1981 claim at
issue in this case, because we evaluate § 1981 claims the same
as we do Title VII claims. See Manatt, 339 F.3d at 797. How-
ever, as the district court noted, “rational jurors could find
[that] Young’s intentional conduct created a hostile work
environment because his conduct was sufficiently pervasive
to alter the conditions of Plaintiff’s employment and to create
a work environment racially hostile to a reasonable Arab.”
(case citations omitted).
“The required level of severity or seriousness varies
inversely with the pervasiveness or frequency of the conduct.”
8576 EL-HAKEM v. BJY INC.
Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 872 (9th
Cir. 2001) (citation and internal quotation marks omitted).
Although Young’s conduct may not have been especially
severe,1 there was unrefuted evidence of its frequency and
pervasiveness. The jury heard testimony that Young contin-
ued to use the name “Manny” over El-Hakem’s repeated
objections. El-Hakem first objected to Young’s use of
“Manny” in a marketing meeting. Despite El-Hakem’s objec-
tion, Young insisted on calling him “Manny” in a subsequent
telephone conversation and e-mail. Approximately one month
later, El-Hakem proposed in an e-mail that Young use
Hakem, his last name, if he found Mamdouh difficult to pro-
nounce. Rather than call him Hakem, Young suggested in his
reply e-mail that El-Hakem be called “Hank.” El-Hakem
objected again. Despite El-Hakem’s continued objections,
Young persisted in calling El-Hakem “Manny” once a week
in the Monday marketing meeting for approximately two
months, and in e-mails at least twice a month thereafter. The
conduct continued for almost a year, from May, 1999 to
April, 2000. Because these incidents were frequent and con-
sistent rather than isolated, a reasonable juror could conclude
that El-Hakem’s work environment was hostile.
[4] Finally, we disagree with Defendants’ contention that
El-Hakem failed to present evidence of Young’s discrimina-
tory intent. In Defendants’ view, there was no evidence of
intent because “even if plaintiff felt the name ‘Manny’ had
racial implications, there is no indication Mr. Young felt that
way.” However, the record is clear that Young intended to
discriminate against El-Hakem’s Arabic name in favor of a
non-Arabic name, first by altering Mamdouh to “Manny” and
then by changing Hakem to “Hank.” Therefore, there was suf-
ficient evidence of discriminatory intent to support the jury’s
verdict, and the district court properly denied Young’s motion
for judgment as a matter of law.
1
El-Hakem conceded that Young’s conduct was not “severe.”
EL-HAKEM v. BJY INC. 8577
2. The District Court Did Not Err in Reconciling the
Verdict
In its special verdict responses, the jury found Young liable
for race discrimination under § 1981 but did not find BJY
similarly liable, even though the evidence showed that Young
was acting in the course and scope of his employment at all
pertinent times. After concluding that the special verdicts
were inconsistent, the district court amended the judgment to
hold BJY vicariously liable for discrimination.
[5] When confronted by seemingly inconsistent responses
to special verdict interrogatories, a trial court has a duty to
harmonize those responses whenever possible. See Gallick v.
Baltimore & Ohio R.R. Co., 372 U.S. 108, 119 (1963). In
doing so, the court “must search for a reasonable way to read
the verdicts as expressing a coherent view of the case, and . . .
[t]he consistency of the jury verdicts must be considered in
light of the judge’s instructions to the jury.” Toner ex rel.
Toner v. Lederle Labs., 828 F.2d 510, 512 (9th Cir. 1987)
(citations omitted).
[6] In this case, the district court recognized that its failure
to give a requested vicarious liability instruction led to the
inconsistent responses from the jury. Because the evidence
established that Young was acting in the scope of his employ-
ment at all pertinent times, BJY was liable for Young’s acts
as a matter of law,2 and the district court properly amended
the judgment to include BJY’s vicarious liability for race dis-
crimination. Because the jury was not instructed that it must
find against BJY if it found against Young, the jury responses
2
Under Title VII, there is a presumption that “an employer is vicariously
liable for a hostile environment created by a supervisor.” Nichols, 256
F.3d at 876-77. Moreover, the “legal principles guiding a court in a Title
VII dispute apply with equal force in a § 1981 action.” Manatt, 339 F.3d
at 797 (citations omitted). In this case, Young was found liable for creat-
ing a hostile work environment under § 1981, and “BJY did not plead,
prove, or seek any jury instruction to avoid vicarious liability.”
8578 EL-HAKEM v. BJY INC.
could be reconciled by considering the probable effect on the
jury of not having the benefit of the correct instructions. The
district court reasonably concluded that the only reason the
special verdicts were inconsistent was due to the lack of
appropriate instructions. Having concluded that inclusion of
the vicarious liability instruction would have inevitably
resulted in consistent verdicts of liability against both defen-
dants, the district court did not abuse its discretion by amend-
ing the judgment to impose vicarious liability upon BJY. See
Westinghouse Elec. Corp. v. General Cir. Break. & Elec. Sup-
ply Inc., 106 F.3d 894, 901 (9th Cir. 1997) (approving adjust-
ments to the jury verdict in the face of a “flawed instruction”).
Defendants also challenge the amount of damages assessed
against BJY. The district court concluded that a new trial on
the question of damages against BJY was unnecessary
because the “jury’s finding as to Plaintiff’s compensatory and
punitive damages for this claim are supported by substantial
evidence.” The court awarded El-Hakem the same damages
against BJY that the jury awarded against Young. Defendants
assert that the amount of punitive damages for a corporation
and an individual “may be different.” Although it is true that
punitive damage awards3 may be different, Defendants failed
to rebut the district court’s conclusion that the amount of
punitive damages against BJY was supported by substantial
evidence presented to the jury.
3. The District Court Did Not Err in Declining to
Apportion the Attorney’s Fees Awarded to El-Hakem
Defendants contend that the district court should have
apportioned the award of attorney’s fees between the state law
3
In fact, BJY probably benefitted from the court’s decision, because
punitive damage awards against corporations are usually considerably
higher than those awarded against individuals. Dennis P. Stolle et al., The
Perceived Fairness of the Psychologist Trial Consultant: An Empirical
Investigation, 20 Law & Psychol. Rev. 139, 148-49 (1996).
EL-HAKEM v. BJY INC. 8579
wage claim and the federal discrimination claim, as the state
law wage claim was unsuccessful. According to the Defen-
dants, “it is improper from the standpoint of equity and com-
mon sense to hold Mr. Young liable for the fees and costs
incurred in prosecuting the wage claim.”
[7] In deciding whether apportionment is mandated, the
court focuses on the time expended by the plaintiff in pursu-
ing each defendant, rather than on relative liability. Corder,
947 F.2d at 382. We have upheld district courts’ decisions to
apportion fees in several cases. See, e.g., Jones v. Espy, 10
F.3d 690, 691-92 (9th Cir. 1993); Woods, 925 F.2d at 1207;
Southeast Legal Defense Group v. Adams, 657 F.2d 1118,
1125-26 (9th Cir. 1981). We have held that a court abused its
discretion in not apportioning fees “when the time expended
by the plaintiff in pursuing each defendant was grossly
unequal.” Corder, 947 F.2d at 383 (citation and emphasis
omitted). We have concluded that a court acted within its dis-
cretion when fees were apportioned between successful
claims and unsuccessful claims. See Schwarz v. Sec’y of
Health & Human Servs., 73 F.3d 895, 905 (9th Cir. 1995).
Neither circumstance exists in this case. There was no gross
disproportion in the time expended by El-Hakem’s counsel as
between BJY and Young because the claims against the two
defendants were virtually interchangeable. Neither was there
a need to apportion the fee award as to the respective claims,
because only a small percentage of the total hours expended
was attributable to the state law wage claim, a portion of
which was successful.4 The district court’s conclusion that the
state law wage claim “required little in the way of either fac-
tual development or legal analysis” is supported by the record,
and bolsters the court’s decision that apportionment of the
4
The district court concluded that the bulk of the fees for the wage claim
was subsumed in counsel’s “General Litigation” billings. See Thurman v.
Yellow Freight Sys., Inc., 90 F.3d 1160, 1169 (6th Cir. 1996) (recognizing
that “[m]uch of counsel’s time will be devoted generally to the litigation
as a whole”).
8580 EL-HAKEM v. BJY INC.
fees was not warranted. See Hensley v. Eckerhart, 461 U.S.
424, 434-36 (1983) (recognizing the difficulty of “divid[ing]
the hours expended on a claim-by-claim basis.”).
4. The District Court Properly Denied El-Hakem’s
Motion for Judgment as a Matter of Law Challenging
Application of the “Same Decision” Defense to His
Wage-Retaliation Claim
El-Hakem contends that the district court erred in allowing
the Defendants to assert the “same decision” defense to his
wage retaliation claim because: (1) the “same decision”
defense is inapplicable to a wage retaliation claim under Or.
Rev. Stat. § 652.355; and (2) if the defense is applicable, the
defendants waived the affirmative defense by failing to raise
it in the pretrial order.5
[8] Under § 652.355, a plaintiff must show that an
employer discharged him because of the employee’s wage
claim.6 In Hardie v. Legacy Health Sys., 6 P.3d 531, 536-37
5
The district court summarized the facts relevant to the “same decision”
defense as follows:
In response to the Court’s interrogatories, the jury found [that]
BJY terminated Plaintiff’s employment. Although the jury found
Plaintiff’s complaints about unpaid wages were a substantial
motivating factor in the decision of BJY to terminate Plaintiff’s
employment, the jury also found BJY would have made the same
decision in the absence of Plaintiff’s complaints. The jury logi-
cally could have based these findings on evidence that BJY ulti-
mately closed its Portland office because Plaintiff, its only
employee there, was not licensed to provide the professional ser-
vices BJY sold to its clients.
6
Section 652.355 provides, in relevant part:
(1) No employer shall discharge or in any other manner dis-
criminate against any employee because:
(a) The employee has made a wage claim or discussed, inquired
about or consulted an attorney or agency about a wage claim.
Or. Rev. Stat. § 652.355.
EL-HAKEM v. BJY INC. 8581
(Or. App. 2000), partially superseded by statute on other
grounds, the court considered a “mixed motive” discrimina-
tion claim under a similar retaliation statute, Or. Rev. Stat
§ 659.410(1), which makes it unlawful for an employer to
retaliate against an employee who invokes the workers’ com-
pensation system. The court held that under this section, if an
employer denies any discriminatory motive and asserts a non-
discriminatory reason for the plaintiff’s termination, then “a
plaintiff must be able to show that he or she would not have
been fired but for the unlawful discriminatory motive of the
employer.” Id. at 537 (citation and internal quotation marks
omitted). Stated differently, the plaintiff must show that the
employer would not have made the “same decision” to termi-
nate him in the absence of the discriminatory motive.
[9] The retaliation claim at issue in Hardie and El-Hakem’s
retaliation claim place identical burdens on the plaintiff, both
requiring a plaintiff to show he was fired “because of” the
employer’s retaliatory motive. Therefore, the district court
correctly determined that the “same decision” defense is
available under § 652.355 just as it is under § 659.410(1).
El-Hakem alternatively argues that if the “same decision”
defense is available, the Defendants failed to assert it in the
pretrial order as required. In response, the Defendants contend
that they had no duty to raise the defense in the pretrial order
because “the issue is not a defense, but an aspect of plaintiff’s
burden of proof.”
[10] A pretrial order controls the subsequent course of the
action unless modified “upon a showing of good cause.” Ziv-
kovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1087 (9th
Cir. 2002) (citation omitted). Accordingly, a party may not
“offer evidence or advance theories at the trial which are not
included in the order or which contradict its terms.” United
States v. First Nat’l Bank of Circle, 652 F.2d 882, 886 (9th
Cir. 1981) (footnote reference omitted). Because parties have
a duty to advance any and all theories in the pretrial order,
8582 EL-HAKEM v. BJY INC.
BJY had a duty to assert its theory that it would have made
the same decision to terminate El-Hakem even if a retaliatory
motive also existed. BJY’s contention that it did not have this
duty because El-Hakem has the burden of proof is without
merit. A defendant must enumerate its defenses in a pretrial
order even if the plaintiff has the burden of proof. See South-
ern Cal. Retail Clerks Union v. Bjorklund, 728 F.2d 1262,
1264 (9th Cir. 1984) (holding, in action to recover trust fund
contributions, that defendant failed to preserve his defense
that third party was acting as plaintiff’s agent.).
[11] Although the pretrial order did not reflect that BJY
noticed the “same decision” defense in response to El-
Hakem’s wage-retaliation claim, notice was given in the pre-
trial order that BJY advanced the identical “same decision”
defense to El-Hakem’s federal discrimination claims. There-
fore, El-Hakem should have been alerted to, and sufficiently
prepared for, BJY’s assertion of the defense. BJY’s reference
to the defense in the pretrial order, albeit in response to a dif-
ferent claim, distinguishes this case from the cases El-Hakem
relies on for support. In those cases, defendants failed to
include any reference to the defense in the pretrial order. See
Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841
F.2d 918, 924 (9th Cir. 1988) (finding defense waived when
raised for the first time in reply brief to appellate court);
Southern Cal. Retail Clerks Union, 728 F.2d at 1264 (con-
cluding that issue was waived where no colorable reference to
defense in pretrial order).
[12] The district court had the authority to modify the pre-
trial order and implicitly exercised that authority in permitting
BJY to advance the “same decision” defense. In the absence
of any prejudice to El-Hakem, we cannot say that the district
court abused its discretion.
IV. CONCLUSION
The district court properly denied Young’s motion for judg-
ment as a matter of law on El-Hakem’s intentional discrimi-
EL-HAKEM v. BJY INC. 8583
nation claim. Young’s persistent reference to El-Hakem by a
racially-motivated nickname supported the jury’s finding of
discrimination. The court also properly amended the judgment
to hold BJY vicariously liable for racial discrimination, and
acted within its discretion in declining to apportion the attor-
ney’s fees. Finally, the court’s consideration of the “same
decision” defense was within its discretion and its application
of the doctrine was consistent with Oregon law.
AFFIRMED.