El-Hakem v. Bjy Inc.

• Decision Date: 21 July 2005
• Docket Number: No. 03-35514.,No. 03-35544.,No. 04-35063.,03-35514.,03-35544.,04-35063.
• Citation: 415 F.3d 1068
• Parties: Mamdouh EL-HAKEM, Plaintiff-Appellee, v. BJY INC., a foreign corporation; Gregg Young, an individual, Defendants-Appellants. Mamdouh El-Hakem, Plaintiff-Appellant, v. BJY Inc., a foreign corporation; Gregg Young, an individual, Defendants-Appellees. Mamdouh El-Hakem, Plaintiff-Appellee, v. BJY Inc., a foreign corporation; Gregg Young, an individual, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

415 F.3d 1068

Mamdouh EL-HAKEM, Plaintiff-Appellee, v. BJY INC., a foreign corporation; Gregg Young, an individual, Defendants-Appellants.

Mamdouh El-Hakem, Plaintiff-Appellant, v. BJY Inc., a foreign corporation; Gregg Young, an individual, Defendants-Appellees.

Mamdouh El-Hakem, Plaintiff-Appellee, v. BJY Inc., a foreign corporation; Gregg Young, an individual, Defendants-Appellants.

No. 03-35514.

No. 03-35544.

No. 04-35063.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2004.

Filed July 21, 2005.

COPYRIGHT MATERIAL OMITTED

Krishna Balasubramani, Sather, Byerly and Holloway, LLP, Portland, OR, for the defendants-appellants/cross-appellees.

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

Appeal from the United States District Court for the District of Oregon; Anna J. Brown, District Judge, Presiding. D.C. Nos. CV-01-00663-BR, CV-01-00663-AJB.

Before T.G. NELSON, RAWLINSON, Circuit Judges, and SCHWARZER,^* District Judge.

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.

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," El-Hakems'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 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 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, 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. 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 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 discretion. Corder v. Gates, 947 F.2d 374, 377 (9th Cir.1991). A "district court's fee award will be over-turned[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 Comms., 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

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, 107 S.Ct. 2022, 95 L.Ed.2d 582 (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.

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 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.

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, 114 S.Ct. 367, 126 L.Ed.2d 295 (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." Nichols v. Azteca Rest. Enters., 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.

Finally, we disagree with Defendants' contention that...