Kamal Aly v. Mohegan Council, Boy Scouts of America

United States Court of Appeals
For the First Circuit
No. 12-1292
KAMAL ALY,
Plaintiff, Appellee,
v.
MOHEGAN COUNCIL, BOY SCOUTS OF AMERICA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Torruella, Howard, and Thompson,
Circuit Judge.
A. Neil Hartzell, with whom David A. Slocum and LeClairRyan,
PC, was on brief for appellant.
Paul J. Caruso, on brief for appellee.
March 22, 2013

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TORRUELLA, Circuit Judge. This appeal arises from a
workplace discrimination suit filed by Plaintiff-Appellee Kamal Aly
("Aly" or "Appellee") against Defendant-Appellant Mohegan Council,
Boy Scouts of America ("Mohegan Council" or "Appellant"), in which
Appellee alleged that he was denied career advancement
opportunities on account of his religion (Islam) and national
origin (Egyptian-American). Following trial, the jury returned a
verdict in favor of Aly. Mohegan Council filed a motion for
judgment as a matter of law claiming that Aly failed to prove: (1)
that Mohegan Council was an "employer" with the requisite fifteen
or more employees under Title VII of the Civil Rights Act of 1964;
(2) that the administrative charge with the Massachusetts
Commission Against Discrimination ("MCAD") was timely filed; and
(3) that sufficient evidence supported a finding of discrimination.
The district court denied Mohegan Council's motion, and this timely
appeal followed. After careful consideration, we affirm the
district court in all respects.
I. Background
A. Factual Background
Since the court is reviewing the district court's denial
of Mohegan Council's post-verdict motion for judgment as a matter
of law, we set forth the factual background, as supported by the
record, "in the light most favorable to the verdict." Muñiz-
Olivari v. Stiefel Labs., Inc., 496 F.3d 29, 35 (1st Cir. 2007).
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Aly is an Egyptian-American Muslim who was employed by
Mohegan Council, a local Massachusetts council chartered by the Boy
Scouts of America ("BSA"). Aly worked for the Council between
August 6, 2001, and October 19, 2005, when he resigned. Throughout
the course of his employment, Aly received two professional
development trainings -- Professional Development Learning I ("PD-
LI") in December 2001 and Professional Development Learning II
("PD-LII") in 2003 -- and was subject to four annual evaluations,
called "Performance Reviews," at the beginning of each year to
review the year prior. During the events relevant to Aly's claim
on appeal, he served as a District Executive responsible for
oversight of four functions of the district operation: membership,
program, unit service, and finance. Further, the Council has
around 1,800 volunteers overall, and District Executives were also
tasked with recruiting and motivating volunteers.
For Aly's first two years of employment, he received
positive Performance Reviews. His 2001 Review gave him an overall
performance rating of "expected performance," and noted that he was
"very systematic in his approach to [his] position," was "very
willing and eager to do anything that [was] asked of him," and
"work[ed] well with all volunteers." While he received a "marginal
performance" in the traditional membership category -- the district
had a membership loss of 3.7% that year -- his performance in
district operations was rated "significantly exceeds." His 2002
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Review was likewise very positive, and his overall performance
rating was "significantly exceeds." He received "significantly
exceeds" ratings in the "membership" and "quality district"
categories, and won the National Quality District Award. Finally,
Aly received a "far exceeds" rating for his performance as the
"TVSR Director" of the summer camp, achieving "2003 Staff
objectives by December 31, 2002." The 2002 evaluation noted that
he: "demonstrated great leadership in taking on the Summer Camping
Director Position [three] months prior to camp and running a
successful camp"; "work[ed] well with all volunteers in his
district and on the Council Training Committee"; and "demonstrated
good customer service in working to resolve issue[s] as they
ar[o]se." In Aly's 2003 Review, he received an overall rating of
"expected performance," and while he got an "unsatisfactory" rating
for membership, he received a "significantly exceeds" rating for an
increase in campers and troops at the summer camp and a "far
exceeds" rating for popcorn sales, which increased by 20.3%.
In 2003 and 2004, Aly held Boy Scout recruitment meetings
in mosques. In 2004 in particular, he expanded recruitment
meetings into two mosques and two Islamic schools in Worcester. Up
until the fall of 2004, open houses and recruitment meetings were
usually held in schools and churches. Prior to Aly's organizing in
the Muslim community, there were no Muslim scouts or volunteers
that were part of Mohegan Council.
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In the midst of these recruiting efforts, in February
2004, Aly became eligible for Professional Development III ("PD-
LIII") training. The PD-LIII training was required for promotion
to a Senior Executive Director position, and in order to attend, an
employee would need to be recommended following completion of a
Career Evaluation. Aly approached his supervisor, James Kennedy
("Kennedy"), about the training almost every week between February
2004 and August 2004. On August 30, 2004, Kennedy and Richard
Trier ("Trier"), the Area Director for the Northeast Region of the
Boy Scouts, conducted Aly's Career Evaluation. Based on all of the
evaluation data, Kennedy and Trier recommended Aly to attend the
PD-LIII training "within the next six months," indicating that Aly
was "[r]eady to assume increased responsibilities as a senior
executive after PD-LIII." Under all categories -- initiative,
relationship with volunteers, cooperation, teamwork, attitudes, and
commitment to scouting principles and objectives -- Aly was given
a "satisfactory" rating. The Career Evaluation form required the
supervisors to provide an indication of "what improvement [wa]s
needed" if the employee received any "unsatisfactory" ratings. Aly
received no "unsatisfactory" ratings, and no recommendations for
improvement were listed on the form. However, the form did list a
concern about Aly's relationship with volunteers -- "[c]oncern over
follow-up w[ith] phone. Viewed as undependable [at] times" -- and
mentioned in the "attitude" section that he could be "stubborn at
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times," and "takes advice -- lack[s] follow through." At trial,
Aly testified that he was only told of one instance when he did not
properly respond to telephone calls from volunteers, and that
involved an incident of "playing . . . phone tag with a volunteer."
Regarding the "stubborn" comment, Aly testified that Kennedy "was
upset because I was asking for my career evaluation to be done on
time, and he didn't like that." For the other concerns listed, Aly
stated that Kennedy neither offered examples of negative
performance nor explained what the negative remarks meant.
At the same time that Aly was recommended for PD-LIII
training, another professional scout working for Mohegan Council,
Néstor Chevalier ("Chevalier"), was also reviewed and received a
recommendation for PD-LIII training. Chevalier is a third-
generation Lebanese Christian born in the Dominican Republic, and
he began employment with Mohegan Council in February 2002, six
months after Aly. Between 2002 and 2005, Chevalier received three
Performance Reviews as well as a Career Evaluation, and his overall
performance rating was, respectively, "expected performance" in
2002, "expected performance" in 2003, and "significantly exceeds"
in 2004. While Chevalier got a solid review of "expected
performance" in each of the relevant categories in his 2002
Performance Review, he received three "marginal performance"
ratings in 2003 for membership, units, and popcorn sales as well as
a "far exceeds" rating in urban scouting units, membership and
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program administration. Despite the overall "significantly
exceeds" rating for his 2004 Review, he received two
"unsatisfactory" ratings in the "friends of scouting" and "chief
scout executive's winner circle" due to decreased fundraising from
the prior year, as well as membership and unit loss. Nevertheless,
following Kennedy and Trier's recommendation that Chevalier receive
PD-LIII training on January 13, 2005, he was sent three months
later for said training in April 2005. Subsequent to the training
and in the same year, he was promoted to Senior District Executive.
Unlike Chevalier, Aly was never sent to receive his PD-
LIII training, and was thus never eligible to be promoted to Senior
Executive Director. On January 27, 2005, Aly received his 2004
Performance Review, which gave him the worst rating he had received
yet: an overall rating of "marginal performance." According to
John Garee ("Garee"), Aly's supervisor following Kennedy's
departure, a "marginal performance" rating means that an employee's
performance is "the marginal, minimal level of performance
acceptable in the position," but it does not indicate unacceptable
performance. Garee testified that, according to the Boy Scouts'
Staff Leadership Guidelines, Aly never got an unacceptable review.
The evaluation noted that Aly had "given effective leadership to
forming new units in the Islamic community." It also noted that Aly
had a "strong commitment to the Scouting program."
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At trial, Mohegan Council presented evidence that one of
the non-discriminatory reasons for not sending Aly to the PD-LIII
training was his declining performance. Specifically, the Council
presented testimony by Kennedy, Garee, Trier and David Libbey, a
volunteer member of the District Committee within the Council,
regarding their understanding of the basis of Aly's more negative
evaluations in his final year. Kennedy indicated that Aly's
receipt of lower ratings was based on: a decrease in district
membership, volunteer complaints of Aly's failure to return calls
and be fully prepared for meetings, a decrease in popcorn sales,
and a drop in summer camp attendance.
Garee replaced Kennedy as Aly's supervisor on August 22,
2005, almost a year after Aly was recommended for the PD-LIII
training. Garee testified that Aly notified him that he did not
think his 2004 Performance Review was fair, and that he felt he did
not have a good working relationship with Kennedy. Garee further
testified that Aly had expressed concerns to him that he had been
treated unfairly by volunteers and camp staff members on the basis
of the fact that he was Muslim. After he reviewed Aly's prior
Performance Reviews and observed Aly as he presided over the
district committee meeting in September 2005, Garee stated that his
impression was that Aly appeared "disorganized," "considerably
disengaged," and "wasn't well-prepared." Garee also testified that
a promotion was not an option due to Aly's marginal performance
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rating and his deficiency "in several areas" that needed work.
Garee did, however, testify that he had never witnessed a situation
where a district executive was recommended for PD-LIII training but
was not provided it.
Garee met with Aly on September 8, 2005, after speaking
with several of Aly's volunteers and conducting a field observation
of Aly. At that meeting, according to Garee, he and Aly discussed
Aly's background, performance, and the PD-LIII training and
promotion. Aly testified that Garee told him that he was not
sending him to the PD-LIII training because key volunteers in the
district had told him that they did not want him anymore. As
stated infra, Garee had testified that, prior to that September 8,
2005 meeting, Aly had expressed concerns to him about unfair
treatment by volunteers and camp staff members because he was
Muslim.
Garee offered to put Aly on a 90-day performance
improvement plan ("PIP") starting October 1st to improve upon his
declining ratings. PIPs ordinarily consisted of a mutually agreed
upon action plan which established objectives and stated goals for
improvement within a 90-day time frame. Garee, however, never
provided Aly with a PIP, stating at trial that they did not have
"that opportunity" and claiming that Aly was indecisive about his
future career objectives. While the Boy Scouts' Staff Leadership
Guidelines specify how to proceed if a staff member gives an
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"unsatisfactory" performance, specifying that the "first step"
after an unsatisfactory performance review "is to establish an
improvement program," neither Kennedy nor Garee followed these
Guidelines through the period of Aly's receipt of "marginal
performance" ratings. Further, neither Kennedy nor Garee adhered
to Guideline requirements to communicate in writing the following
information to staff members with unsatisfactory performance
reviews:
1. The reasons why performance is unsatisfactory.
2. What must be accomplished in a specific
time frame (short-term critical achievements)
to regain a satisfactory level of performance?
3. How long the performance improvement
period will last. (The period is normally 90
days; rarely is it shorter, and it is longer
for long service employees who have served the
organization for at least five years.).
4. The support and resources the staff member
can expect during the performance improvement
period.
5. The consequences of failure to achieve
satisfactory performance.
Upon being notified of Aly's concerns regarding
discrimination, Garee did not conduct a formal investigation to
determine if discrimination had in fact occurred as he did not
regard Aly's complaint as a formal complaint. Garee also did not
inform the human resources division of the Boy Scouts about Aly's
complaints of discrimination. Garee did conduct informal
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interviews with volunteers and also notified Trier of the issue at
the time it was presented to him.
Aside from his declining work performance, Mohegan
Council presented three additional non-discriminatory reasons for
not sending Aly to the PD-LIII training. Specifically, Mohegan
Council presented evidence that it had concerns regarding Aly's
wavering commitment to the organization, presenting testimony by
Garee indicating such concerns after learning of Aly's pursuit of
other job opportunities with outside employers in late September
2005. The final two reasons were budgetary and timing-related.
Regarding the budgetary issue, evidence was presented at trial that
Mohegan Council did not have the funds to send Aly to the training.
Between Aly's August 30, 2004 Career Evaluation and the end of
2004, Aly and Kennedy had conversations where, according to Aly,
Kennedy told him that the Council could not afford to send him to
the training. When Aly offered to pay for the training himself,
Kennedy told him that the Council would not be able to give him a
raise upon his return. When Aly offered to forego a raise upon his
return, Kennedy still refused. Mohegan Council also presented
testimony that it was not typical to send people to training in the
Fall months -- the period most critical for member recruitment --
and, in any case, a strong performance by Aly in the Fall could
bring up his membership numbers and thus improve upon his prior
performance ratings.
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On October 10, 2005, Aly e-mailed Garee to notify him
that he would resign by December 31, 2005, if he did not get
promoted to a higher position by then. Garee did not respond to
this e-mail. On October 19, 2005, Aly sent Garee another e-mail
notifying him in writing of his resignation from the position of
District Executive. Garee accepted his resignation by e-mail on
the same day.
B. Procedural History
On June 2, 2006, Aly met with Maritza Reyes of MCAD and
filled out a "General Employment Interview Form" ("Interview Form")
alleging that Mohegan Council discriminated against him on the
basis of his race, religion, and national origin. Under "[d]ate of
the last discriminatory act," Aly listed October 19, 2005, the date
of his resignation, and indicated that the basis for his
discriminatory complaint was denial of promotion, terms and
conditions, retaliation and being "force[d] to resign." The
Interview Form had the appearance of an intake form but is
described in its body as an "employment complaint." In the factual
predicate section of the Interview Form, Aly listed the following
allegations: Kennedy "[h]arrassed" him to quit and refused to
perform a timely career evaluation after 30 to 36 months of his
employment; Néstor Chevalier's career evaluation was performed soon
after he reached the thirtieth month of his hiring date; and Aly
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never received the PD-LIII training for which he was recommended
while Chevalier did receive it.
On August 18, 2006, Aly filed a formal complaint with
MCAD identifying Mohegan Council as his discriminatory employer.
On April 4, 2008, MCAD issued an order dismissing Aly's MCAD
complaint for lack of jurisdiction for having been "untimely filed"
after the requisite 300 days of the alleged discriminatory act:
October 19, 2005, when Aly tendered his written resignation.
Aly then filed the instant case in the U.S. District
Court for the District of Massachusetts on May 23, 2008. Before
trial, Mohegan Council filed a motion for summary judgment, arguing
that the requisite administrative filing with MCAD was not timely.
The district court denied that motion on the grounds that: (1)
Aly's June 2, 2006 Interview Form constituted a "complaint" for the
purposes of the statute of limitations, and (2) Aly's August 18,
2006 formal complaint was merely an amendment to his June 2006
complaint which could properly relate back to it under MCAD
regulations.
Trial commenced in September 2011, and resulted in a jury
verdict in favor of Aly. Following the district court's denial of
Mohegan Council's motion for judgment as a matter of law, it filed
the instant timely appeal.
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II. Discussion
Since the timeliness of Aly's MCAD complaint and the
number of employees who worked for Mohegan Council are threshold
issues for a Title VII action, we address them first, each in turn.
We then review the merits of Aly's discrimination claim.
A. Timeliness of Aly's MCAD Complaint
To bring a civil action for employment discrimination
pursuant to Title VII, an employee must first file a "charge" with
either: (1) the Equal Employment Opportunity Commission (EEOC)
within 180 days of the alleged unlawful employment practice; or (2)
a parallel state agency -- in this case, MCAD -- within 300 days of
said practice. 42 U.S.C. § 2000e-5(e)(1); Mass. Gen. Laws ch.
151B, § 5; Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005).
An employee may only sue in federal court if the EEOC dismisses the
administrative charge, does not bring civil suit, or does not enter
into a conciliation agreement within 180 days of the filing of the
administrative charge. 42 U.S.C. § 2000e-5(f)(1). Failure to
exhaust this administrative process "bars the courthouse door."
Jorge, 404 F.3d at 564.
MCAD regulations provide the procedural guidelines for
filing administrative charges following an alleged unlawful
employment practice. 804 C.M.R. § 1.01 (1998). Pursuant to those
regulations, charges filed with MCAD must identify the complainant
and the employer, contain the date on which the alleged conduct
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occurred, and provide a concise statement describing the
discriminatory conduct. Id. §§ 1.10(2), (4), (5). Additionally,
the complaint must be signed and verified by the complainant under
the pains and penalties of perjury. Id. § 1.10(4)(a). Where a
filing within the statutory period is inadequate,
[a] complaint . . . may be amended to cure
technical defects or omissions, including
failure to swear to the complaint, or to
clarify and amplify allegations made therein.
. . . Amendments shall relate back to the
original filing date.
Id. § 1.10(6)(a); see also 29 C.F.R. § 1601.12(b) (Title VII
requirements for amendment of charge and relation back). This
"relation-back" principle applies, however, only when the earlier
filing can be construed to operate as a "charge." Montes v. Vail
Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir. 2007); see also
Edelman v. Lynchburg Coll. ("Edelman II"), 300 F.3d 400, 403-04
(4th Cir. 2002); Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d
1304, 1306-07 (11th Cir. 2001).
There has been significant debate concerning what
constitutes a "charge" for the purposes of meeting the filing and
verification requirements laid out by Title VII and the EEOC's
regulations. In Edelman v. Lynchburg Coll. ("Edelman I"), 535 U.S.
106 (2002), the Supreme Court addressed the conflict among the
courts of appeals regarding filing and verification requirements by
first noting their differing purposes. The time-to-file
limitation, the Court stated, was intended "to encourage a
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potential charging party to raise a discrimination claim before it
gets stale, for the sake of a reliable result and a speedy end to
any illegal practices that prove[] out." Id. at 112-13. The
verification requirement, on the other hand, had a distinct
objective, namely, to "protect[] employers from the disruption and
expense of responding to a claim unless a complainant is serious
enough and sure enough to support it by oath subject to liability
for perjury." Id. at 113. "This object," the Court continued,
"demands an oath only by the time the employer is obliged to
respond to the charge, not at the time an employee files it with
the EEOC. There is accordingly nothing plain in reading 'charge'
to require an oath by definition." Id. In thus requiring an oath,
the Court stated, "Congress presumably did not mean to affect the
nature of Title VII as 'a remedial scheme in which laypersons,
rather than lawyers, are expected to initiate the process.'" Id.
at 115 (quoting EEOC v. Commercial Office Products Co., 486 U.S.
107, 124 (1988)) (other citation omitted).
In Fed. Exp. Corp. v. Holowecki, 552 U.S. 389 (2008), the
Supreme Court again considered what constitutes a "charge" in the
context of an employment discrimination filing. Specifically, the
Court attempted to resolve a dispute among the lower courts
regarding whether the filing of an intake questionnaire may
constitute the filing of a "charge" for purposes of the Age
Discrimination in Employment Act (ADEA) if all other filing
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requirements are met. Id. at 395-97. The Court granted deference 1
to the EEOC's filing requirements, concluding that,
[i]n addition to the information required by
the regulations, . . . if a filing is to be
deemed a charge it must be reasonably
construed as a request for the agency to take
remedial action to protect the employee's
rights or otherwise settle a dispute between
the employer and the employee.
Id. at 402. In applying this rule, the Court looked at the label
and wording of the questionnaire at issue, noting that
[d]ocuments filed by an employee with the EEOC
should be construed, to the extent consistent
with permissible rules of interpretation, to
protect the employee's rights and statutory
remedies. Construing ambiguities against the
drafter may be the more efficient rule to
encourage precise expression in other
contexts; here, however, the rule would
undermine the remedial scheme Congress
adopted. It would encourage individuals to
avoid filing errors by retaining counsel,
increasing both the cost and likelihood of
litigation.
Id. at 406.
The district court denied summary judgment as to the
timeliness of Aly's MCAD filing on the grounds that Aly's June 2,
2006 Interview Form, while defective in not including Aly's
signature, was a valid initial filing, and his subsequent formal
While Holowecki considered the question of what constitutes a 1
charge under the ADEA, "the filing provisions of the ADEA and Title
VII are virtually in haec verba, the former having been patterned
after the latter." Montes, 497 F.3d at 1164 n.6 (internal
quotation marks omitted) (quoting Commercial Office Prods., 486
U.S. at 123-24).
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charge filed on August 18, 2006, cured the technical verification
defect and served as an amendment that "related back" to the
original complaint. Since that initial complaint was filed on
June 2, 2006, within 300 days of Aly's October 19, 2005
resignation, it met the timeliness requirement.
While Mohegan Council does not dispute that Aly's
Interview Form complies with the basic required content of an MCAD
complaint -- stating the name and address of his employer, the
person alleged to have discriminated against him, the alleged
discriminatory conduct, and as well as the date of said conduct --
it makes three arguments as to why it was error for the district
court to deem Aly's MCAD complaint timely. First, Mohegan Council
argues that, since the Interview Form did not bear Aly's signature
and did not state the particulars surrounding the alleged
discriminatory acts, it did not constitute a valid filing. Since
the "relation-back" principle could only apply to an initial valid
filing, it could thus not be applied here to cure the deficiencies
of the filed charge. Second, Mohegan Council contends that the
district court improperly relied on case law assessing the
timeliness of charges filed with the EEOC, which does not require
-- as MCAD regulations do -- that a charge include a signature and
verification under the pains and penalties of perjury. Finally,
Mohegan Council claims that this court must defer to the MCAD
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Investigating Commissioner's order that dismissed Aly's complaint
as untimely filed.
We disagree on all counts. First, Aly's Interview Form
may be construed as a valid charge to which the August 18, 2006
complaint may relate back under MCAD regulations. The Interview
Form conformed with said regulations in that it: (1) listed the
date on which the unlawful discriminatory act occurred: October 19,
2005 (see 804 C.M.R. § 1.10(5)(a)); (2) contained a concise
statement of the alleged discriminatory acts: Kennedy's
"harassment" and refusal to either perform Aly's Career Evaluation
or send him to the PD-LIII training while another employee,
Chevalier, received differential treatment as to the evaluation and
training (see id. § 1.10(5)(b)); and (3) identified Kennedy as the
person alleged to have committed the unlawful discriminatory act
(see id.). While Aly's statement was not verified by his sworn
signature subject to liability for perjury as required under Rule
1.10(4)(a), the rules provide an explicit remedy for such omission
in Rule 1.10(6)(a), allowing for a complaint to be amended "to cure
technical defects or omissions, including failure to swear to the
complaint." (emphasis added).
Further, EEOC regulations and Supreme Court precedent
endorsing said regulations allow an intake questionnaire such as
Aly's to serve as a "charge" for the purpose of meeting the
limitations period in appropriate circumstances. See Holowecki,
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552 U.S. at 401-02; 29 C.F.R. §§ 1601.9, 1601.12, 1626.6, 1626.8.
Those circumstances include cases where a Form may be "reasonably
construed as a request for the agency to take remedial action to
protect [a complainant's] rights or otherwise settle a dispute
between the employer and the employee." Holowecki, 552 U.S. at
402. Holowecki provided indicia to assist in a court's inquiry as
to whether a complaint may be reasonably construed as a charge, and
those included labels on the face of the complaint. In Holowecki,
the Court deemed a complaint insufficient to constitute a charge
where said complaint was not labeled a "Charge of Discrimination,"
and its wording indicated that its purpose was to facilitate "pre-
charge filing counseling." Id. at 405. Here, on the contrary, the
Interview Form referred to the filing employee as a "Complainant"
and contained wording referring to the Form itself in the present
tense as an "employment complaint . . . being filed against the
Respondent . . ." (emphasis added). It is thus reasonable to
construe that language as a request for the agency to take action
to protect Aly's Title VII workplace rights. Further, so
construing the Interview Form is consistent with both the purposes
of the limitations requirement as articulated in Edelman and the
injunction in Holowecki to construe documents filed by employees,
"to the extent consistent with permissible rules of interpretation,
to protect the employee's rights and statutory remedies." 552 U.S.
at 406.
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We cannot agree with Mohegan Council's contention that
the August 18, 2006 complaint may not relate back due to its
failure to meet the verification requirement. Firstly, regulations
allowing relation back in cases where the earlier-filed complaint
failed to fulfill a verification requirement have been upheld by
the Supreme Court as reasonable. See, e.g., Edelman, 535 U.S. at
116-17 ("Where a statute or supplemental rule requires an oath,
courts have shown a high degree of consistency in accepting later
verification as reaching back to an earlier, unverified filing.
. . . [and] Congress [is] presumed to have known of this settled
judicial treatment of oath requirements when it enacted and later
amended Title VII.") (internal citations and quotations omitted).
Second, it is of no matter that the district court relied on case
law assessing relation back of verified complaints filed with the
EEOC rather than MCAD because, contrary to Mohegan Council's
assertions, Section 706(b) of Title VII as a general matter
requires all employment discrimination charges under its purview to
"be in writing under oath or affirmation" for EEOC review, just as
MCAD regulations do. 42 U.S.C. § 2000e-5(b) (2013). Thus, the
district court did not err in relying on federal case law governing
verification requirements under EEOC regulation 29 C.F.R.
§ 1601.12.
Finally, contrary to Mohegan Council's assertions, MCAD's
Investigating Commissioner did not directly address the issue of
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whether or not Aly's June 2, 2006 Interview Form constituted a
"charge" under proper MCAD and EEOC guidelines. Rather, the
Commissioner just assumed that the filing date of the charge was
August 18, 2006, and dismissed that complaint as untimely without
considering the question of whether said complaint may or may not
relate back to the prior-filed Interview Form. Therefore, there
was no agency determination made as to that issue to which this
court may be asked to defer.
For the above-cited reasons, we hold that the district
court did not err in finding Aly's MCAD complaint timely.
B. Minimum Employee Requirement for Title VII Applicability
Title VII defines an "employer," for the purposes of its
mandate, as "a person engaged in an industry affecting commerce who
has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar
year." 42 U.S.C. § 2000e(b) (2013). Courts may rely on the
"payroll method," or calculating the number of employees who are on
the payroll for each day of a given week regardless of whether they
were actually present at work each day, to determine whether an
employer has reached Title VII's threshold number. Walters v.
Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997); De Jesús v.
LTT Card Servs., 474 F.3d 16, 21 (1st Cir. 2007). The payroll
method allows for calculating the jurisdictional 15-employee
threshold merely by knowing whether a particular employee was on
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the payroll during a particular time frame, and it allows for the
counting of part-time employees within said time frame to reach the
threshold. See Walters, 519 U.S. at 207. Part-time workers are
counted as employees for each day they worked between arrival and
departure, and those times may be added to reach the threshold
number. Id.; see 2 EEOC Compl. Man. (BNA), Directives Transmittal
No. 915.003, § 2-III(B)(1)(a), "Employers" (May 2000). The
plaintiff bears the burden of demonstrating by a preponderance of
the evidence that the employer meets the 15-employee threshold.
Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (holding that "the
threshold number of employees for application of Title VII is an
element of a plaintiff's claim for relief, not a jurisdictional
issue").
After hearing the testimony of Thanh Nguyen, the
Council's office manager, and reviewing the Council's payroll
records submitted into the record, the jury determined that Aly met
his burden as to this threshold issue. The district court's
opinion on Mohegan Council's motion for judgment as a matter of law
found this determination to be "not unreasonable," and made the
following deduction: in addition to the fourteen full-time
employees of Mohegan Council, it was not unreasonable to find that
a fifteenth employee, Quan Nguyen, was employed for twelve weeks
and at least one of the seasonal workers was employed for eight
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weeks, or that at least one of the seasonal workers worked year-round.
On appeal, Mohegan Council again challenges the
sufficiency of Aly's evidence in showing that it employed the
threshold number of employees during the period relevant for this
action. Specifically, it contends that the evidence presented at
trial could only allow a reasonable jury to speculate as to whether
it had the requisite employees, and the jury could not reasonably
conclude that, above and beyond its fourteen employees, an
additional employee or employees of the 61 seasonal and part-time
employees worked for more than twenty weeks because no particular
evidence was provided as to who worked which weeks.
We review the district court's decision awarding a
judgment as a matter of law de novo, but a jury's verdict "must be
upheld unless the facts and inferences, viewed in the light most
favorable to the verdict, point so strongly and overwhelmingly in
favor of the movant that a reasonable jury could not have [returned
the verdict]." Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d
1, 13 (1st Cir. 2009) (quotations and citations omitted). The
Court must affirm "unless the evidence, together with all
reasonable inferences in favor of the verdict, could lead a
reasonable person to only one conclusion, namely, that the moving
party was entitled to judgment." Id. (quotation marks, quotations
and citations omitted). We find that, viewed in the light most
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favorable to the verdict, Mohegan Council met the threshold number
of employees to constitute an "employer" for Title VII purposes.
It is undisputed that Mohegan Council employed fourteen
employees full-time for a period of at least twenty weeks during
the relevant period, and that another employee, Quan Nguyen, was
employed for twelve weeks. Therefore, Aly only needed to show
that, amongst the hours that 61 seasonal and part-time employees
worked for Mohegan Council, eight remaining weeks of work could be
compiled by a single employee or a combination thereof. The
evidence of payroll and time cards submitted into the record show
that most of the 61 part-time or seasonal workers were employed
during the seven-week summer camp. A reasonable jury could find,
based on this evidence, that any one or combination of the sixty-
one employees filled the eight-week gap between Quan's employment
and the requisite twenty-week threshold. Therefore, the district
court did not err in denying Mohegan Council's motion for judgment
as a matter of law as to whether it met the threshold number of
employees.
C. Evidence of Discrimination
To successfully bring a Title VII claim, a plaintiff must
first establish a prima facie case of discrimination by a
preponderance of the evidence. Goncalves v. Plymouth Cnty.
Sheriff's Dep't, 659 F.3d 101, 105 (1st Cir. 2011). To set out a
prima facie case, a plaintiff bears the burden of showing that (1)
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he or she is a member of a protected class; (2) possessed the
necessary qualifications and adequately performed his or her job;
(3) was nevertheless dismissed or otherwise suffered an adverse
employment action at the hand of his or her employer; and (4) his
or her employer sought someone of roughly equivalent qualifications
to perform substantially the same work. Rodríguez-Torres v.
Caribbean Forms Mfr., Inc., 399 F.3d 52, 58 (1st Cir. 2005)
(citation omitted).
Under the well-known McDonnell Douglas burden-shifting
framework, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
once a plaintiff has proven his prima facie case by a
preponderance, the burden shifts to the defendant to rebut the
presumption of discrimination by providing legitimate, non-
discriminatory reasons for their action. St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 507 (1993) (quoting Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the defendant
proffers legitimate reasons for the adverse action, the plaintiff
must then prove by a preponderance that the proffered reasons by
the defendant are a pretext for unlawful discrimination. Id. at
507-8. To meet his or her burden, a plaintiff must demonstrate
either that the adverse employment action was (1) "more likely
motivated" by discrimination than by the explanation proffered by
the defendant; or (2) "the proffered explanation [was] unworthy of
credence" where the suspect action, coupled with evidence to the
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contrary, suggests a discriminatory motivation. Burdine, 450 U.S.
at 256. Disparate treatment may be "competent proof that the
explanation given for the challenged employment action was
pretextual, provided the plaintiff-employee can make a preliminary
showing that others similarly situated . . . in all relevant
respects were treated [more advantageously] by the employer."
Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 43-44 (1st Cir.
2001) (quotation marks, quotations and internal citation omitted).
Although the burdens shift between the plaintiff and the
defendant during the course of an employment discrimination claim,
the ultimate burden of persuading the trier of fact lies with the
plaintiff. Burdine, 450 U.S. at 253. Once an employment action
has been submitted to a jury and tried on its merits, the burden-
shifting framework is confined to the ultimate question of
discrimination. Sánchez v. P.R. Oil Co., 37 F.3d 712, 720 (1st
Cir. 1994) ("[t]o focus on the existence of a prima facie case
after a discrimination case has been fully tried on the merits is
to 'unnecessarily evade the ultimate question of discrimination vel
non.'") (internal citations omitted). This is because, at that
stage, McDonnell Douglas has served its purpose, and the evaluation
of a post-trial motion assesses whether the plaintiff met his
overall burden of establishing discrimination. Id.
A defendant is entitled to judgment as a matter of law
if the record conclusively revealed some
other, nondiscriminatory reason for the
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employer's decision, or if the plaintiff
created only a weak issue of fact as to
whether the employer's reason was untrue and
there was abundant and uncontroverted
independent evidence that no discrimination
occurred.
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000).
Further, as stated above, the jury's verdict is given high
deference unless the evidence in the record, taken in the light
most favorable to the non-movant, is so overwhelmingly inconsistent
with the verdict that no reasonable jury could come to the same
conclusion. Muñiz-Olivari, 496 F.3d at 35; see also Zimmerman v.
Direct Fed. Credit Union, 262 F.3d 70, 75 (1st Cir. 2001) (holding
that verdict must stand unless evidence points unerringly to the
opposite conclusion).
Mohegan Council makes three main arguments on appeal.
First, it claims that Aly failed to establish a prima facie case of
discrimination. Specifically, the Council argues that Aly failed
to provide sufficient evidence either that his performance was up
to its legitimate expectations or that it took an adverse
employment action against him since he was not entitled to the PD-
LIII training and voluntarily resigned. Further, the Council
contends that Aly failed to show discriminatory intent,
particularly because their Separation Notice with Aly indicated
their willingness to take him back.
Second, and assuming this court finds that Aly
established a prima facie case, Mohegan Council argues that a
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reasonable juror could not find discrimination because of the
unrebutted evidence it presented establishing that it had multiple,
legitimate non-discriminatory reasons for promoting and training
Chevalier rather than Aly. Mohegan Council insists that Aly's
evaluations in his first two years were outstanding, demonstrating
that his religion and national origin were not factors in his
assessments, and that when his performance declined, Aly did not
dispute that his performance reviews were weaker, signing the
relevant portions thereof without objection. Further, they point
to evidence cited infra regarding negative performance, the
difficult timing of the PD-LIII training due to Fall recruitment
efforts, and Aly's indecisiveness about his long-term prospects
with the Council.
Finally, Mohegan Council argues that Aly failed to rebut
its evidence by sufficiently showing pretext. It claims that Aly's
evidence that he felt he was being treated differently by other
staff members and volunteers is insufficient to show that its
proffered non-discriminatory reasons are untrue.2
Mohegan Council also argues in its opening brief that the 2
district court erred in its memorandum and order denying judgment
as a matter of law when it examined evidence without regard to the
burden-shifting framework presented in McDonnell Douglas. However,
Mohegan Council misstates the law in this Circuit when it claims
that the strict, step-by-step McDonnell Douglas burden-shifting
framework applies when reviewing the sufficiency of the evidence
following a jury verdict. As stated supra, once an employment
discrimination action has been submitted to a jury, "the burden-
shifting framework has fulfilled its function" since "backtracking
serves no useful purpose." Sánchez, 37 F.3d at 720. As we noted
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While it is a close case, we agree with the district
court that Mohegan Council did not meet its burden in showing that
the evidence in the record, taken in the light most favorable to
Aly, is so overwhelmingly inconsistent with the verdict that no
reasonable jury could come to the same conclusion.
As to the Council's argument regarding Aly's prima facie
case, while it is true that Aly's performance evaluations declined
in his last two years of employment, the lowest evaluation mark his
supervisor ever gave him was within his employer's work
expectations. Further, it is reasonable to believe that Aly was
performing to those legitimate expectations if his worst evaluation
both recommended him for the PD-LIII training and suggested that he
was "successful in every component of the job." In fact, Aly's
most negative evaluations were issued during the period when he
held recruitment meetings in mosques to expand recruitment into the
Muslim community. Thus, the jury could reasonably infer that there
in Sánchez, "[t]o focus on the existence of a prima facie case
after a discrimination case has been fully tried on the merits is
to 'unnecessarily evade[] the ultimate question of discrimination
vel non.'" Id. (quoting U.S. Postal Serv. Bd. of Govs. v. Aikens,
460 U.S. 711, 713-14 (1983)). Thus, the district court did not err
when it considered the evidence presented as a whole rather than
piecemeal, in a step-by-step review. In any case, the district
court did, in fact, consider the evidence presented by Aly in
determining whether the non-discriminatory reasons proffered by the
Council constituted pretext. Specifically, it found that the
Council's proffered evidence was "not so one-sided that no jury
could reasonably find that discrimination occurred," noting that
much of Aly's evidence to counter the Council's non-discriminatory
reasons depended on credibility determinations that the jury made
in Aly's favor.
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was a correlation between said recruitment and his negative
evaluations, an inference that goes directly to Aly's
discrimination claim.
As to the Council's adverse employment actions, Aly
presented sufficient evidence that the delay in being evaluated for
recommendation to the PD-LIII training program and the Council's
refusal to send him to the PD-LIII training once recommended,
resulting in his ineligibility for a promotion, were adverse. See
Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004) (stating
the elements of a failure-to-promote claim). The record also
indicates that Garee, Aly's supervisor at the time, was unable to
identify a single person in his thirteen-year history of
affiliation with the Boy Scouts who had passed the same benchmarks
as Aly but was not sent to the PD-LIII training.
Finally, Aly sufficiently showed that the Council sought
someone of roughly equivalent qualifications -- namely, Chevalier
-- to send to the PD-LIII training and perform the work of a Senior
Executive Director following a promotion for which the training
made him eligible. Chevalier was a non-Muslim of Hispanic and
Lebanese descent who started working at the Council six months
after Aly began. Even though Chevalier had received "exceptional
marks" on his evaluations prior to being sent to the PD-LIII
training program, he was similarly situated to Aly in all relevant
respects. His performance reviews were almost equivalent to those
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of Aly, and while he received higher performance scores than Aly in
certain categories and overall, he received lower performance
scores than him in certain categories in 2003 and 2004.
While Mohegan Council offered a number of reasons it did
not send Aly to the PD-LIII training -- his declining work
performance, his wavering future commitment to the organization, a
lack of financial resources to either send him or raise his salary
following any promotion, and the timing of the training -- this
evidence was not so overwhelmingly inconsistent with the jury's
verdict as to require reversal. While Aly's proffered evidence of
discrimination was not extensive, it could reasonably lead to an
inference of discriminatory intent and a showing of pretext,
particularly since it: (1) provided a direct challenge to the
alleged non-discriminatory reasons as to job performance; (2)
revealed consistent Performance Reviews noting Aly's commitment to
the Council, with the only statements indicating otherwise
occurring after Aly notified Kennedy about his concerns about
discrimination; (3) indicated the Council's failure to follow
Guidelines in dealing with negative Performance Reviews, if said
reviews did in fact indicate performance so unsatisfactory as to
warrant a failure to commit to a precondition for promotion; (4)
revealed that Garee had relied at least in part in his decision not
to send Aly to the training on volunteers, persons that Aly had
complained were discriminating against him on the basis of
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religion; and (5) demonstrated that the Council was willing to
forego its budgetary concerns regarding the PD-LIII training when
it came to Chevalier, but not when it came to Aly. Therefore, a
reasonable jury could conclude that Mohegan Council's proffered
nondiscriminatory reasons are not worthy of credence, and taken
together with the other circumstances, suggest that discrimination
was more likely the motivation behind the adverse action.
III. Conclusion
We conclude that the district court did not err in
denying Mohegan Council's motion for judgment as a matter of law.
We accordingly affirm on all counts.
Affirmed.
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