          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
              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).


                                       -2-
           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


                                    -3-
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.


                                         -4-
          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


                                 -5-
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


                                             -6-
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."




                                        -7-
            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


                                 -8-
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


                                   -9-
"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



                                         -10-
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.


                                   -11-
            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




                                       -12-
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.




                                 -13-
                           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


                                 -14-
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

                                       -15-
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


                                       -16-
requirements are met.1     Id. at 395-97.   The Court granted deference

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



1
   While Holowecki considered the question of what constitutes a
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).

                                   -17-
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




                                          -18-
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,


                                      -19-
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.


                                     -20-
          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


                                   -21-
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


                                  -22-
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




                                      -23-
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




                                      -24-
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)


                                   -25-
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


                                   -26-
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

                                   -27-
            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

                                        -28-
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


2
    Mohegan Council also argues in its opening brief that the
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

                                   -29-
          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.

                                 -30-
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


                                      -31-
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


                                         -32-
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.




                               -33-
