Aly v. Mohegan Council, Boy Scouts of Am.

• Decision Date: 22 March 2013
• Docket Number: No. 12–1292.,12–1292.
• Parties: Kamal ALY, Plaintiff, Appellee, v. MOHEGAN COUNCIL, BOY SCOUTS OF AMERICA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

711 F.3d 34

Kamal ALY, Plaintiff, Appellee,

v.MOHEGAN COUNCIL, BOY SCOUTS OF AMERICA, Defendant, Appellant.

No. 12–1292.

United States Court of Appeals,First Circuit.

March 22, 2013.

A. Neil Hartzell, with whom David A. Slocum and LeClairRyan, PC, was on brief for appellant.

Paul J. Caruso, on brief for appellee.

Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judge.

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).

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 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.

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 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 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.”

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...