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
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. 

8568 EL-HAKEM v. BJY INC.
COUNSEL

Krishna Balasubramani, Sather, Byerly and Holloway,

LLP, Portland, Oregon, for the defendants-appellants/crossappellees. 

Patty T. Rissberger (briefed), Craig A. Crispin (argued), Crispin Employment Lawyers, Portland, Oregon, for the plaintiffappellee/cross-appellant. 

OPINION

RAWLINSON, Circuit Judge: 

This case presents challenges to the district court’s postverdict rulings following a jury trial. Because the district court

properly resolved the parties’ respective motions, we affirm.

EL-HAKEM v. BJY INC. 8571
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 employment 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,” ElHakems’s given name. In Young’s expressed view, a “Western” 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 ElHakem 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 ElHakem 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 punitive 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,

8572 EL-HAKEM v. BJY INC.
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 conduct 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 protection statutes. 

The district court denied Young’s motion in its entirety. ElHakem’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. ElHakem’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 ElHakem.

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

EL-HAKEM v. BJY INC. 8573
granted only if no reasonable juror could find in the nonmoving 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 discretion. 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 disagree with Defendants’ premise. Their contention that actionable 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 “intended 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

8574 EL-HAKEM v. BJY INC.
F.3d 488, 498 (9th Cir. 1994) (recognizing that “discrimination against people who possess surnames identified with particular 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 language 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 hostile 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. However, 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.”

EL-HAKEM v. BJY INC. 8575
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 continued 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 objection, 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 pronounce. 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 consistent 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 discriminatory 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 sufficient 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. 

1El-Hakem conceded that Young’s conduct was not “severe.” 

8576 EL-HAKEM v. BJY INC.
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 employment 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 discrimination. Because the jury was not instructed that it must

find against BJY if it found against Young, the jury responses

2Under 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 creating a hostile work environment under § 1981, and “BJY did not plead,

prove, or seek any jury instruction to avoid vicarious liability.” 

EL-HAKEM v. BJY INC. 8577
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 defendants, the district court did not abuse its discretion by amending the judgment to impose vicarious liability upon BJY. See

Westinghouse Elec. Corp. v. General Cir. Break. & Elec. Supply Inc., 106 F.3d 894, 901 (9th Cir. 1997) (approving adjustments 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). 

8578 EL-HAKEM v. BJY INC.
wage claim and the federal discrimination claim, as the state

law wage claim was unsuccessful. According to the Defendants, “it is improper from the standpoint of equity and common 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 pursuing 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 discretion 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 factual development or legal analysis” is supported by the record,

and bolsters the court’s decision that apportionment of the

4The 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”). 

EL-HAKEM v. BJY INC. 8579
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

5The 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 logically could have based these findings on evidence that BJY ultimately closed its Portland office because Plaintiff, its only

employee there, was not licensed to provide the professional services BJY sold to its clients. 

6Section 652.355 provides, in relevant part: 

(1) No employer shall discharge or in any other manner discriminate 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. 

8580 EL-HAKEM v. BJY INC.
(Or. App. 2000), partially superseded by statute on other

grounds, the court considered a “mixed motive” discrimination 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’ compensation system. The court held that under this section, if an

employer denies any discriminatory motive and asserts a nondiscriminatory 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 terminate 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.” Zivkovic 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,

EL-HAKEM v. BJY INC. 8581
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 Southern 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 ElHakem’s wage-retaliation claim, notice was given in the pretrial order that BJY advanced the identical “same decision”

defense to El-Hakem’s federal discrimination claims. Therefore, 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 different 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 (concluding that issue was waived where no colorable reference to

defense in pretrial order). 

[12] The district court had the authority to modify the pretrial 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 judgment as a matter of law on El-Hakem’s intentional discrimi8582 EL-HAKEM v. BJY INC.
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 attorney’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. 

EL-HAKEM v. BJY INC. 8583