characterizing the use of a non arab western nickname as a racial act the second is whether substantial evidence supports the jury's finding of a hostile work environment and third whether the trial court erred in failing to apportion the attorney fees of or awarded between two separate claims for relief on which two different defendants were found liable liable of creating a hostile work environment on post trauma sions the judge found that defendant b j y in quotes vicariously liable for his actions and then the second was a verdict on jury heard evidence objected to this based on his religion and race and the fact that there was a jewish connotation to the name of the first issue i'd like to raise  the respondent on remain and had to prove that he was subject to intentional discrimination based on the fact that he was born an arrow rather than solely on the place or nation of his origin or his religion and conduct of a racial nature by addressing him after his objection by a non arab western name is is a violation against a person's ethnic or arab characteristics and a name unlike you know the matter of your hair as a way of your eyes or your pronounce the a shine or your color of your skin and the person's name is not obviously that it's racially motivated that the facts in this case dealt with the pronounce the ation of a name and a misguided belief albeit that the client's inability to pronounce a variety of eastern eastern names was to be what was going to make it difficult and that's all justification i'm just saying the facts aren't as clear as taking all arabs and this is a company that had arabs as vice presidents and arabs as as in high ranking positions and simply taking his characteristic as an arab and discriminating against him because all of the bank work with your theory because of the fact that he pretends to use on the he protested on those basis and what our concern is that the basis for liability for the individual defendant is very narrow so this isn't a case where it's title seven and regardless of whether it was error each egyptian or muslim that was the basis for the discrimination there is a valid claim that this is a more narrow claim because again the title seven claim or the religious discrimination claim against the continue to feel that the judge should have more clearly defined the of the of the jury instructions in the verdict form instead of simply suggesting to the jury that the use of a different name itself was racially automatically racially motivated as long as the instructions are green i think that the court should have clarified to the jury the distinction between the racial district distinction and the religious discrimination and said that the plaintiffs needed to establish that mr young changed mr al hakim so named because of his race or because of his ethnicity one defendant to liable soli if there was a finding of race discrimination or another defendant liable for race or religious discrimination given the narrow confines of this case i think the judge abused the discretion in using that run from a recognition that the characteristic that issued that there weren't any cases also there was very little guidance in terms of trying to frame the issue basically our discussion seem to focus down on st francis case there are cases issue if the jury instructions simply said defendant subjected plaintiffs to verbal or other conduct of a racial nature by dressing him with a nickname over his objection it doesn't bring in too it would to a jury that's being asked to really draw separation in terms of race or religion because there is no race experts separately called it was religious experts call to say that based on the qur'an the name given to a person is very important to them and it ethnicity issue the race issue and religion issue germans and italians but doesn't talk about it in terms of countries of origin and that the court cautions that the respondent on remained in the same francis case had to prove intentional discrimination based on his arabic descent rather than the place or nation of his origin and that line is so thin i'm not sure i can put words in terms of if if and nine hundred eighty one covers arabs jews germans and italians plaintiffs has to distinguish that versus place or nation of origin it seems like it comes really close to national origin claim but the court also specifically seems to state national court decision just a national origin issue but names are in voluntarily changed but it is the theory that if a person of american descent becomes muslim adopts a muslim name and then that that person's name is changed and you know that the same set an employer calls you by a nickname it's that racial or ethnic discrimination you know said it wasn't that i'm sorry i suppose it depends on the nickname if it's a derogatory nickname in the eyes of the recipient of the  being called that name the ones that cause and that that make it racial or ethnic if the person is caucasian and born america because that that there wasn't the testimony was basically that their employers misguided conduct was based on the names not based on where this person was from or what his religion was even though that was the basis for the become for the plaintiffs complaints the employers actions were widespread there was testimony in to in terms of people of all different cultures were briefly it's a substantial evidence issue and one of the reasons to be for effect but simply the question of whether or not the use of a nickname even if the plaintiff objected is sufficient to create a hostile work environment one of the interesting parts of this case is there was a concession that dumb i think the conduct was not severe and the question was was the conduct pervasive and if you're talking about conduct that is not severe becoming at creating a hostile work environment because the conduct is becoming pervasive it seems we're getting really close to the civility code that the courts often always caution that that that the civil rights laws are not and this was an issue that  we try if you get into raising the jury instruction in the court said well no it's more appropriate for legal consideration the fact that this is not at the time section one thousand you want is not a civility code but then isn't addressed it in detail within the court's  t trial orders and there's cases plenty of cases talking about racial epithets not being sufficient to create a hostile work environment that one of the now versus bank of america the ninth circuit decision from two thousand and three which contains language that i can't even get myself to say in open court now one of the factors that the ninth circuit relied on in the map case was that the conduct only happened on i think two reported incidents but on those two reported incidents that the terms such as china woman and things like that were pretty repeated multiple multiple times and the ninth circuit said not severe can you really ever have a hostile work environment play no matter how severe how much you object you know it it's wrong it's distasteful it's disgraceful but it's a hostile work environment when there's no severely i mean most cases out the says severe or pervasive but the discussion is that it's part of an inverse and i wasn't able to find any cases that said if there's enough pervasiveness there can be no severely little things  the two claims were factually and legally distinct the judge allowed the plaintiff's attorney to put ninety to ninety five percent of all of the attorney fees claimed within the general litigation category which we believe was inappropriate and raised the the aspect of his objections and including is the culture language and heritage you see those in the excerpts to record discipline excerpt at seventeen and nineteen where he raises also objections on those bases phrase that the jury has to find first the racial aspect of the climate and we see that the instruction  is that the they must find that the defense attorney the plate of the verbal or other conduct of a racial nature and then they go after him and say that by addressing him by non error of western name so the jury was n so that the the western name in the context of the evidence for this trial was versus two easter and proofs one was the arab muslims and the other was this group of francis case as well as the arab muslims who were talking about here as well they answer your question thank you it's important to note also that the the pervasiveness of the court comments were right on point in terms of severe or pervasive and that's been consistent throughout the cases that there need not be the severity as long as there is and we agreed that the think the conduct did not rise to a level that one would say we rely upon severely as the basis for this claim primarily because we had such a pervasive record  raised it it came out over a couple months at least once a week and did all the e mails he talked about all the e mails and he talked about it except for record ninety seven that he had much contact with great young  throughout the course of the day and that he always used the word or term meaning to refer to him walked arabs together with regard to middle east for an economy to freeze the middle easterns i mean arabs a kind of thing like that so indicating that he in his own mind still equated those two also there was testimony about that the court did a couple things in in looking at the themes of the court agreed that in trying the case there are a lot of hours that are spent in trying the case there are either the same regardless of the different issues or fact they cannot be segregated because you do the same thing anyway the court cut by twenty percent to account for some of the lack of segregation and the court had the discretion to look at the way the case was tried to look at the submissions and to identify what kind of apportionment was involved the court said that the wage claim was a very simple claim that really required virtually very few hours to develop it was a clear cut not actually complex it was simply putting in the evidence of the of the pay a few questions about not getting paid and that was it so she affected that or decided not to do the apportionment because by reducing the fees by twenty percent she was subsuming that whatever minor difference might have been involved there himself about nonpayment of wages in a dispute over wages he also went to the oregon bureau of labor an industry contracted then made an appointment came back and told a supervisor that in fact made an appointment to go see wait an hour concerning these unpaid wages in had a conversation with mr young and and complained about the nonpayment of wages whereupon the next day he was terminated  the jury found that there was a substantial motivating factor with the jury then went on to do is to say that the that the employer would have terminated mr hauck him in any event based on other  which deal with the same decision but if you look at that finality there remains a limited remedies available there but even without looking at that what we've got is a statutory organ statutory and we are but i don't think that is a interpretation that has substance to it but for because of these are these are standards that if the case i think i want to read a short section in terms of fair play in this testimony in terms of this this isn't a supplement of record number to page twenty he's talking about the email that wasn't produced a talking about the name i replied in the same e mail to mr young telling him that i'm proud to using my name ma'am do i and this name part of my religion part of my entity part of my culture it is the same name that identified