The U.S. 1st Circuit Court of Appeals recently upheld a jury verdict in favor of an Egyptian-American Muslim employee of the Boy Scouts of America (BSA) who claimed the BSA denied him career advancement opportunities based on his national origin and religion. The court upheld the verdict because the employer failed to show the evidence was “overwhelmingly inconsistent” with the jury’s decision.
Background
Kamal Aly, an Egyptian-American Muslim, began working as a district executive for the BSA’s Mohegan Council in August 2001. During his first two years with the BSA, he completed two professional development trainings and received positive annual performance reviews.
In 2003 and 2004, Aly began holding scout recruitment meetings in mosques and Islamic schools in Worcester, Massachusetts. Before he began organizing in the Muslim community, the council’s open houses and recruitment meetings were usually held in schools and churches, and the council had no Muslim scouts or volunteers.
In both 2003 and 2004, Aly received less favorable annual performance reviews. In addition, even though his supervisor recommended in August 2004 that he be permitted to attend a third level of training within six months (required for promotion to senior executive director), the council never sent him to the course.
The council did, however, send Néstor Chevalier, a Lebanese Christian employee, to the training course in April 2005, just four months after he was recommended for the training by his supervisor. Chevalier had started working for the council six months after Aly and, like Aly, received mixed annual performance reviews.
Around August 2005, Aly complained to his supervisor that he felt volunteers and staff were treating him unfairly because he is Muslim. The supervisor neither conducted a formal investigation nor notified HR of Aly’s complaint. Aly resigned in October 2005 and filed a complaint alleging discrimination a few months later.
Although the council cited four nondiscriminatory reasons for its conduct (declining work performance, wavering commitment to the organization, budgetary concerns, and timing issues), the jury ultimately returned a verdict in favor of Aly. The council appealed to the 1st Circuit on a variety of grounds, including (1) that Aly failed to prove the council had the requisite 15 or more employees to qualify as an employer covered by Title VII of the Civil Rights Act of 1964 and (2) that the jury verdict wasn’t supported by sufficient evidence.
Minimum employee requirement for Title VII coverage
Title VII applies to employers with 15 or more employees. The Act defines an “employer” as “a person engaged in an industry affecting commerce who has [15] or more employees for each working day in each of [20] or more calendar weeks in the current or preceding calendar year.” Part-time employees can be included in calculating the threshold number of employees.
At trial, the council argued that Aly couldn’t show it was subject to Title VII because it had only 14 full-time employees. The 1st Circuit affirmed the district court’s rejection of that argument. The court reasoned that because it was undisputed that the council employed 14 full- time employees for at least 20 weeks during the relevant period and another employee for 12 weeks during that period, Aly needed to show only that the eight remaining weeks could be accounted for through the hours worked by one or a combination of the 61 seasonal and part-time employees who worked for the Mohegan Council.
Payroll and time cards submitted at trial showed that any one or a combination of the seasonal employees who worked at a seven-week summer camp filled the eight-week gap between the 15th employee’s 12-week employment and Title VII’s 20-week threshold.
Jury verdict for employee upheld
In Title VII cases, the jury’s verdict is given great deference unless the evidence is so “overwhelmingly inconsistent” with the verdict that no reasonable jury could reach the same conclusion. Although it noted that this case was a “close call,” the 1st Circuit concluded the jury’s verdict was reasonable.
The 1st Circuit found that Aly established a prima facie (facially sufficient) case of discrimination under Title VII by showing that:
- As a Muslim of Egyptian descent, he is a member of a protected class.
- He was qualified for his job and performed it adequately.
- The denial of the third-level training class and the resulting ineligibility for promotion were adverse employment actions by his employer.
- A similarly situated employee outside his protected class (Chevalier) was treated more favorably.
The court also determined that Aly sufficiently rebutted the council’s nondiscriminatory rationale for his treatment. Although the evidence of discrimination he provided was “not extensive,” it created a reasonable inference of discriminatory intent and a showing of pr etext (an excuse for a discriminatory act).
Bottom line
This case is a good reminder that even if you don’t consistently have 15 or more employees, you may still be subject to Title VII in certain instances. It also illustrates the high burden employers must clear to overturn a jury verdict. 
Rosemary B. Guiltinan is an associate with Sulloway & Hollis, PLLC, in Concord, New Hampshire. She works on a broad range of litigation and transactional matters. She may be contacted at rguiltinan@sulloway.com.