Equal Employment Opportunity Commission v. JetStream Ground Services, Inc. (134 F. Supp. 3d 1298, 2015)

ORDER GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT AND DENYING THE EEOC’s MOTION TO STRIKE

CHRISTINE M. ARGUELLO, United States District Judge

In this religious discrimination and retaliation case, Plaintiff-Intervenors — five female Muslim cabin cleaners who worked for a United Airlines contractor — allege that Defendant JetStream Ground Services, Inc. (JetStream), failed to hire them after they requested to cover their heads and wear long skirts for religious purposes. The Equal Employment Opportunity Commission (EEOC) also alleges that two so-called “aggrieved individuals” (also Muslim employees of JetStream) were laid off or selected for part-time work for the same discriminatory reasons.

This matter is before the Court on Jet-Stream’s Motion for Summary Judgment (Doc. # 83) and the Plaintiffs’ Cross-Motion for Partial Summary Judgment (Doc. # 84.) Defendant’s Motion argues that summary judgment should be entered in its favor on all of the claims due to the EEOC’s failure to satisfy its conciliation requirements. (Doc. # 83 at 1.) It also seeks summary judgment on the two aggrieved individual’s religious accommodation, disparate treatment, and retaliation claims. (Id.) Lastly, it contends that summary judgment should be entered on some of the Intervenors’ damages, because the job offers made to the Intervenors limit their recovery of both back and front pay. (Id. at 1-2.)

Plaintiffs’ Cross-Motion for Partial Summary Judgment argues that the Court should enter summary judgment in their favor on several of Jetstream’s defenses, including (1) the exhaustion of remedies and administrative prerequisites; (2) the viability of Plaintiffs’ claims based on statute of limitations, waiver, estoppel, and laches; and (3) defenses alleging that the religious accommodations at issue are an undue burden. (Doc. # 84.)

I. BACKGROUND

A. GENERAL BACKGROUND

JetStream provides a variety of support services for airlines — including cargo, freight, and mail handling services; aircraft maintenance services; and cabin cleaning services — at airports throughout the United States, including Denver International Airport (DIA). (Doc. # 83, ¶ 1.) In early October of 2008, Jetstream was awarded a contract with United Airlines (United) to provide cabin-cleaning services at DIA. (Id., ¶ 2.) In December of 2008, Jetstream also assumed United’s overnight and daytime cleaning operations from Air-Serv Corporation (“AirServ”), United’s prior cabin cleaning service provider at DIA. (Id., ¶ 3.) JetStream announced that it would interview AirServ’s prior employees for its new operations, and conducted these interviews on October 21-23, 2008. (Doc. # 84-57 at 2.)

On February 5, 2009, five of AirServ’s female cabin-cleaning employees — Safia Abdulle Ali, Sahra Abdirahman, Hana Bokku, Sadiyo Jama, and Amino Warsame (“Intervenors”) — all of whom are Muslim Ethiopian and Somali immigrants, filed Charges of Discrimination (Charges) against JetStream, alleging discrimination on the basis of sex and religion. (Id., ¶ 4.) Specificially, the Intervenors allege that they were not hired during the transition between the AirServ and the JetStream contract because their religious beliefs require them to cover their hair, ears, and neck with a hijab whenever they are in public. (Doc. # 84, ¶ 1.) The women also believe that they must dress is a way that is not revealing of their form or body, such that they must wear full-length skirts in public. (Id.) JetStream’s (current and past) uniform policy requires that cabin cleaners to wear pants while working, even if they request to wear skirts for religious reasons. (Doc. # 117, ¶ 52.) The parties dispute whether, prior to a change in 2011, Jetstream permitted its cabin cleaners to wear hijabs or headscarves — either as a matter of formal policy or actual practice. (Compare Doc. # 117, ¶¶ 50-52 to Doc. # 130, ¶¶ 50-52).

In her Charge, each Intervenor alleged that she worked for AirServ for some years prior to Jetstream’s assumption of the United contract; that AirServ had provided her with a religious accommodation to its uniform policy, such that she was allowed to work while wearing a hijab and a full-length skirt; and that she had worked wearing both items of clothing without incident or injury. (See, e.g., Doc. # 84-9 at 2.) Each Intervenor also alleged that in October of 2008, during the transition between the AirServ and the Jet-stream contracts, Jetstream’s Vice President, David Norris, began interviewing AirServ’s employees to determine if they should be “re-hired” at JetStream. (Id.)

The EEOC has submitted evidence regarding Mr. Norris’ allegedly open animosity toward Muslim women wearing hi-jabs. Specifically, Michael Maina, who was employed by both AirServ and JetStream as a Duty Manager, provided a declaration describing the following comments allegedly made by Mr. Norris:

On or about two weeks after JetStream took over at DIA, I recall David Norris making a comment about a female Muslim employee who was wearing a headscarf. He stated that “United Airlines ■passengers would think they were terrorists,” and that “JetStream should fire them” referring to female employees who wore headscarves. He made this comment in the break room to me and several other managers. On another occasion, maybe two or three weeks after JetStream took over the contract from AirServices, David Norris personally spoke with me and told me that the Muslim women who were working for JetStream should be fired because they looked like “terrorists.” I told him that he could not do that — that he could not fire employees because of their religious beliefs once they were already hired. He just replied that it was his company and he could do whatever he wanted.

(Doc. # 117-14, ¶¶ 1-2, 10-11.) Plaintiffs also submitted a declaration from Brenda Holán, who worked as an Administrative Manager for JetStream and helped interview applicants during the United transition. (Doc. # 117-15, ¶¶ 1, 5.) She described the following interactions with Mr. Norris:

I recall that a number of times during the days we were conducting interviews and throughout the transition period David Norris stating [sic] that female employees “can’t wear headscarves” and that he expected them to wear uniforms. I recall that he stated that he did not care if the reason was “religion” or not. Female cabin-cleaners would not be allowed to wear headscarves, “no ifs, ands, or buts.” He also said that he wanted “none of this headscarf garbage. We’re not putting up with any of that.”... During the interviews, David Norris made many references to “these people” which I thought were derogatory and insulting to the applicants. I also recall David Norris stating once at one of the daily managers meeting that we should not hire any female Muslim employees and that the ones we had hired we should fire because when they wore headscarves “United passengers would think they were terrorists.” I cautioned him that he couldn’t do that and it was wrong. I was appalled.

(Id., ¶¶ 16-17, 19.)

During his interviews, Mr. Norris asked Ms. Ali, Ms. Jama, and Ms. Warsame about whether AirServ had permitted them to wear skirts and hijabs at work. (Doc. ## 83, ¶ 5; 117, ¶ 1.) The women confirmed that, indeed, AirServ had allowed them to work with skirts and hijabs, and they told Norris that they needed to wear these garments for religious reasons. (Doc. ## 83, ¶ 2; 117, ¶¶ 2-4; 117-57 at 17.) Mr. Norris allegedly responded by telling Ms. Ali, Ms. Jama, and Ms. Warsame that he had an “issue” with the skirts; after hearing this, all three agreed to wear pants (because they thought they needed to do so to be hired), but Norris allegedly told them that JetStream still would not hire them because they could not agree to work without hijabs. (Doc. # 117-57 at 7, Doc. 13, ¶ 41). Ms. Warsame also alleges that she offered to provide Mr. Norris with a note from the Denver Islamic Society, explaining that Islamic tenets provide that a woman is not allowed to wear pants and that she is also supposed to cover her hair, but that he refused to accept it. (Doc. # 84-12.) After the interviews, the women were allegedly told that they would receive a follow-up phone call; ultimately, however, the five women were not “re-hired” as employees by Jetstream. (Doc. ## 84, ¶ 7, 84-8 to -12.) In July of 2009, each Intervenor filed an Amended Charge, adding an allegation of retaliation. (Doc. # 83, ¶ 7.)

Between April 13, 2010 and August 29, 2012, the EEOC investigated the Interve-nors’ charges and also expanded the investigation to encompass all of JetStream’s national operations. (Doc. # 84, ¶ 13.) The expanded investigation included multiple requests for additional information sent to both JetStream and AirServ, an on-site visit to DIA, and interviews of current JetStream employees. (Id.)

In February and March of 2011, based on “legal issues regarding the burka headgear,” JetStream amended its uniform policy. (Doc. ## 84-33 at 1.) The policy provides that

Scarves used as a headdress are permitted in solid navy blue, black or JGS [JetStream Ground Services] approved only. In compliance with safety requirements, the scarf/head dress must be short as not to obscure the face (36" x 36" maximum dimensions) and must be attached securely to the employee’s head. The scarf/head dress must not hang below the shoulders or loose fitting to prevent injury.

(Doc. ## 84-33 at 1, 7; 116-4 at 22, 37.)

In a letter dated August 8, 2012, Defendant provided the following explanation to the EEOC investigator for its decision not to hire the Intervenors:

Air Services lost its contract with United because it was not meeting United’s cleaning standards. When JetStream began providing cabin cleaning services, it set out to overhaul and improve upon the level of service previously provided to United. Thus, although JetStream needed to fill approximately one hundred and ninety (190) full time and part time positions, it decided not to hire every cabin cleaner employed by Air Services; it decided, instead, to hire only about sixty (60) of the best applicants from Air Services and then to fill the remaining available positions through “outside” hires.

JetStream evaluated applicants based on how well they conducted themselves during their interviews, whether they had relevant cleaning experience, whether they could provide their own transportation to DIA, whether they expressed a willingness to change their work schedules and rate of pay, and whether they would accept JetStream’s work standards, including its religiously neutral and gender neutral uniform requirements. Applicants were also required to pass a drug test and an airport security screening before being hired.

Like all of the applicants, the Charging Parties were evaluated based on these factors. Sadiyo Jama and Hana Bokku were not hired because they had scheduling conflicts that JetStream could not accommodate, and they both showed little enthusiasm or interest in working for JetStream during their interview. Amino Warsame was not hired because a dispute arose during her interview regarding the rate of pay that she would accept and whether she had adequate experience as a cabin cleaner. Safia Ali was not hired because she refused to abide by JetStream’s uniform policy. Sahra Abdirahman demanded during her interview that JetStream pay for her RTD bus pass, a benefit that JetStream was not prepared to provide, and she failed to complete a required drug test.

(Doc. # 84-6 at 2-3). It also contended that it did not permit cabin cleaners to wear long skirts for safety reasons, explaining that “[pjermitting cabin cleaners to wear long skirts would.. .increase the likelihood of a serious injury occurring on the jetway stairs, as employees would be more apt to trip over a long skirt or catch loose clothing on protuberances while moving up and down the stairway throwing them off balance.” (Id. at 5.) As for hijabs, JetStream noted that its policy “does permit employees to wear a head scarf so long as certain conditions are met” — namely, the head scarf must be blue or black in color, “secured to the employee’s head, either by a hat or by some other means,” as well as “short (i.e., not so long that it flows over the employee’s shoulders, chest, or back); this ensures that an employee’s head scarf does not become caught on aircraft equipment, portions of the jetway (a.k.a. the passenger bridge), or the jetway stairs, resulting in injury.” (Id.)

On August 29, 2012, the EEOC issued a Letter of Determination as to each Inter-venor’s charge, notifying JetStream that the EEOC had found reasonable cause to believe that it had violated Title VII in refusing to provide the Intervenor herself as well ¿s a “class” of other female Muslim employees or applicants “a reasonable accommodation based on [their] religion” and also in refusing “to hire her and others like her for the position of Aircraft Cleaner based on sex, religion, and in retaliation for engaging in protected activity.” (Id., ¶ 15.)

B. THE PRE-SUIT ACTIVITIES

Four years, 6 months, and 23 days elapsed between the Intervenors’ filing of their initial charges (on February 5, 2009) and the EEOC’s filing the Complaint (on August 30, 2013). (Doc. ## 1; 116-5 at 1-12).

The Colorado Civil Rights Division’s and the EEOC’s Investigations

Because the Intervenors’ charges were initially filed with the Colorado Civil Rights Division (CCRD), they were also initially investigated by that agency, which completed its investigation after approximately 11 months (on December 5, 2009). (Doc. # 116, ¶ 4.) On January 29, 2010, the CCRD filed a Complaint on all five Charges with Colorado’s Office of Administrative Courts (OAC), which set a hearing for May 24, 2010. (Doc. # 116-5 at 25.) However, the EEOC filed a Motion to Withdraw the Complaint and Notice of Transfer, and on March 26, 2010, the OAC granted that motion and vacated the hearing. (Doc. # 84-14.)

The parties disagree about the date the case was effectively transferred to the EEOC (contending this occurred in either March of April of 2010), but do not dispute that the EEOC sent its first Request for Information (RFI) to JetStream on September 1, 2010. (Doc. # 116-5 at 293-94.) This RFI sought, among other things, the identity of all employees working for JetStream and all cabin cleaning employees who had worked at DIA since 2008. (Id.) Approximately five months later, on March 9, 2011, indicating that “[t]he Commission has decided to broaden its investigation,” the EEOC sent a second RFI. (Doc. # 84-18.) It sent its third and fourth RFIs to Jetstream May 24, 2012, and June 7, 2012, respectively. (Doc. ## 84-19; -20.) On June 8, 2012, it sent a Third Party RFI to AirServ, and it requested additional information from AirServ on June 15, 2012. (Doc. ## 84-21; -22.) On July 10, 2012, it interviewed five employees at JetStream, including Ms. Haji. (Doc. # 84-23.) On August 29, 2012, it issued cause determinations. (Doc. # 84-15.)

The EEOC’s Conciliation Efforts

Between late August and October of 2012, the EEOC and JetStream exchanged written conciliation proposals five times, and met in person once. (Doc. # 83-3 at 49-50.)

On September 18, 2012, the EEOC provided JetStream with a proposed, initial conciliation agreement. (Doc. # 83, ¶ 8.) In this proposed agreement, the EEOC identified two other Muslim women, Milko Haji and Amina Oba, who, it contended, had also been aggrieved by JetStream’s uniform policies. (Id., ¶ 10.) The EEOC initially proposed economic damages for the In-tervenors in the sum total of $775,500,00 (all-inclusive of back pay, front pay, and emotional distress/compensatory damages plus interest), as well as the creation of a $486,500 settlement fund, which would be paid to other aggrieved individuals identified by the EEOC in the course of its investigation. (Doc. # 88-3 at 49.) The EEOC’s proposal also provided that Jet-Stream would reinstate the Intervenors and other aggrieved individuals, as well as “develop a plan for providing religious accommodation to Muslim employees, including policies and procedures for accommodating deviations from the company’s dress code.” (Doc. # 83-3 at 55.)

The parties met for an unsuccessful, in-person conciliation conference on October 25, 2012, at which time the Intervenors twice reduced their requested damages offers (first to $705,500, and second to $670,500). (Id. at 50.) Jetstream requested three to four days to respond with a counter-proposal, and the conference was adjourned at JetStream’s request. (Id.) Ultimately, however, JetStream terminated the negotiations by making a last offer, and the EEOC concluded that conciliation was unsuccessful. (Id.) JetStream’s final offer was that it would pay $75,000 to cover the Intervenor’s back pay and compensatory damages, but it refused to compensate Haji and Oba or to set aside additional funds for putative victims. (Id.)

The EEOC filed its Complaint in this matter on August 30, 2013. (Doc. # 1.)

C. THE REINSTATEMENT OFFERS

On October 13, 2014, JetStream made offers of full-time employment to all five Intervenors to work as cabin cleaners; these offers provided that the women “may wear a headscarf at work that meets their religious requirements but does not present safety risks,” but required that they “wear pants at work, as they claim they are willing to do.” (Doc. # 83, ¶ 18, Doc. # 83-2 at 43.) The Intervenors were also required to complete employment applications and to take drug tests. (Doc. # 83-4 at 21.)

D. THE “AGGRIEVED INDIVIDUAL’S” CLAIMS

Amina Oba

Ms. Oba is a Muslim female from Ethiopia, whose religious beliefs require her to cover her head and also to wear modest clothing that is not revealing of the shape of her body. (Doc. ## 83, ¶¶ 19, 30; Doc. # 83-2 at 47; 132-1 at 1; 132-11, ¶ 1.) She worked as a cabin cleaner at AirServ beginning in December of 2008, and regularly wore a hijab and skirt on her way to work, but removed her hijab and skirt and changed into pants when she arrived at the airport for work; she also donned and doffed her skirt and hijab during her breaks. (Doc. ## 83, ¶¶ 19-20, 31; 83-2 at 50; 117, ¶ 31.) During the United Contract transition, Ms. Oba was interviewed by a Jetstream employee, but not by Mr. Norris. (Doc. # 83, ¶ 21.) She was not asked about her clothing during her interview and also did not discuss her religion during her interview. (Doc. #83, ¶ 23.)

Ms. Oba wore pants while working for JetSteam and did not request to wear a skirt while working; specifically, she testified that despite wishing to wear a skirt for religious reasons, she did not make such a request because she knew that Jet-Stream had refused to hire other Muslim women who requested similar accommodations. (Doc. # 83, ¶ 32; Doc. # 83r2 at 48, 49.) She also did not cover her head while working for Jetstream. (Doc. # 83-2 at 50.) Ms. Oba continued, however, to don and doff her hijab and skirt when she arrived at work and during breaks (so she was properly outfitted for prayer) and before she went home for the day. (Doc. # 117, ¶ 15). The EEOC submitted a declaration from Mary Berish, a fellow cabin-cleaning employee, about this practice:

The Ethiopian women would wear skirts over pants and headscarves up until our shift would start — then they would take off the skirts and headscarves and put them in backpacks for the shift. We had lockers with AirServices [sic] but those were taken away by JetStream. So the Ethiopian women would take off their religious clothes and put them in backpacks in the corner. Then they would put them on as soon as we got off the shift. They didn’t wait to get home. You could tell they didn’t want to be seen in public wearing pants and without their headscarves but they had to take these off for work.

(Doc. # 117-6, ¶ 23.)

On February 6, 2009 — approximately three and a half months after David Norris’s interviews of the Intervenors — Jet-Stream laid off approximately 25 employees (approximately 10% of its workforce), including Ms. Oba. (Doc. # 83, ¶ 25.) The parties disagree both about who selected Oba for a layoff and about why she was selected. JetStream contends that layoff itself was “precipitated by a dispute between Jetstream and United over compensation paid to JetStream for certain services. As a result, JetStream was losing money at DIA and needed to reduce payroll costs.” (Doc. # 83, ¶ 26.) JetStream submits evidence from the deposition of station manager Earl Alexander, who admitted that he had no firsthand knowledge of Ms. Oba’s work performance, but testified that shift manager Tom Kinsella told him that Oba “was a lesser performer. She was maybe slower than others in doing her job, but [Mr. Kinsella] wanted to try to keep her, if possible” and also that “she was right on the cusp of being able to stay.” (Doc. # 83-1 at 16-17.)

The EEOC contends that Ms. Oba was selected for a layoff because she wished to wear a hijab and skirt for religious reasons. In support of this argument, it points to the fact that Ms. Oba regularly and openly wore her hijab and skirt at work, donning and doffing them for work breaks, and that she was laid off along with another woman who also wore a hijab. Additionally, it notes that Ms. Oba was not initially selected for a layoff; specifically, her name did not appear on a list of employees who were to be laid off which was sent via email by Frank Austin, JetStream’s Director of Hub Operations and Planning, on February 5, 2009, to Mariela Feliciano (JetStream’s Human Resources Director), Norris, and co-owner Mark Desnoyers. (Doc. # 117-8 at 2.) However, on February 6, 2009, Mr. Austin sent these same individuals “a revised work schedule with changes regarding those names you sent earlier today,” which included Ms. Oba’s name as one selected for termination. (Doc # 117-9) (emphasis added). Moreover, despite purportedly being laid off because she was a “slow” worker, this “slow” expía-nation did not appear in her personnel file (whereas JetStream documented the reasons why at least some other employees were selected for layoff in those employees’ personnel files). Additionally, when Ms. Oba was notified that she was laid off by Ms. Martinez, Ms. Martinez told her that she had done “nothing wrong”; she had never been disciplined or written up for slow or poor performance at Jet-Stream; and Ms. Oba’s lead, who worked with her daily, was not consulted about her work prior to the layoff. After being laid off, Ms. Oba was rehired in June of 2012 (and since being rehired, has received a 3% increase in pay and received highest marks for competence and performance). (Doc. ## 83, ¶ 28; 116, ¶¶ 16-20, 22-26.)

After being rehired at JetStream, Ms. Oba has worn a hijab while on the clock. (Doc. # 83-2 at 50.)

Milko Haji

Ms. Haji is a Muslim woman whose religious beliefs require her to wear modest clothing that does not reveal the shape of her body, including a skirt and hijab. (Id., ¶ 37; Doc. # 117, ¶¶ 43, 44). Ms. Haji worked as a cabin cleaner at AirServ before being hired as a cabin cleaner by Jetstream. (Doc. # 83, ¶ 37.) During the United contract transition, Ms. Haji requested a full-time shift, but was assigned a part-time schedule during the first three shifts she worked with Jetstream, working five hours and 30 minutes (from 8:30 AM to 2:30 PM, inclusive of her 30-minute lunch break) on Monday, December 15, 2008 through Wednesday, December 17, 2008. (Id., ¶ 38.) Beginning with her fourth shift, on December 21, 2008, Ms. Haji began working a full-time schedule, working eight hours (from 6:30 AM to 3:00 PM, inclusive of her 30-minute lunch break). (Id., ¶ 39.)

The EEOC asserts that “According to Defendant’s records, Haji’s first day of work was November 13, 2008, but she was not allowed to work until December 15, and then was scheduled for and worked only part time hours on December 15-17,” and cites to exhibit number 41, submitted in support of its Motion for Summary Judgment. (Doc. # 117, ¶ 39.) Exhibit number 41 appears to be a printout of a “Time Card” from a time-tracking program, indicating that Ms. Haji had 7.5 “worked hours” on November 13, 2008. (Doc. # 117-41) However, the “Time Card” contains no other time entries for the week of November 9, 2008. (Id.) (showing zero hours for November 9th through 12th and 14th through 22nd.) The EEOC also submitted an undated “New Hire Processing Form” with information about Ms. Haji, including her address, with several handwritten notations at the very bottom of the page — some are illegible, but the legible words read “Events 401K & Med,” a date (11/12/08), and what appear to be initials (MR). (Doc. # 117-5.)

The Court has thoroughly reviewed all of the other evidence submitted by both sides, including the excerpts from Ms. Haji’s and Mr. Austin’s depositions. It notes that there is no other evidence in the record indicating that Ms. Haji was, in fact, supposed to begin work in November of 2008, rather than the day she actually started in December; for example, Ms. Haji and Mr. Austin never discuss her start date in any respect in their deposition excerpts.

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there is no genuine dispute as to'any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the non-moving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir.1997). In reviewing motions for summary judgment, a court may not resolve issues of credibility, and must view the evidence in the light most favorable to the non-moving party— including all reasonable inferences from that evidence. Id.; Hansen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244, 1251 (10th Cir.2013) (“a judge may not make credibility determinations on summary judgment”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor.”). However, conclusory statements based merely on conjecture, speculation, or subjective beliefs do not constitute competent summary judgment evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

The moving party bears the initial burden of demonstrating an absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial does not need to disprove the other party’s claim; rather, the movant need simply point the Court to a lack of evidence for the other party on an essential element of that party’s claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met its initial burden, the burden then shifts to the nonmov-ing party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671. “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Id. Ultimately, the Court’s inquiry on summary judgment is whether the facts and evidence identified by the parties present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

III. ANALYSIS

A. DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

1. THE EEOC’S CONCILIATION EFFORTS

Title VII requires the EEOC to engage in conciliation efforts prior to filing suit. See 42 U.S.C. § 2000e-5(b) (emphasis added) (“If the Commission determines after [an] investigation that there is reasonable cause to believe that [a] charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”) Only if the EEOC “has been unable to secure from the respondent a conciliation agreement acceptable to the Commission,” may it bring a suit against the employer. 42 U.S.C. § 2000e-5(f)(l).

Prior to the United States Supreme Court’s recent decision in Mack Mining, LLC v. EEOC, — U.S. -, 135 S.Ct. 1645, 191 L.Ed.2d 607 (2015), the Circuit Courts of Appeals disagreed about whether the EEOC’s satisfaction of Title VIPs conciliation requirement was even subject to judicial review — much less the standard that should be applied in determining whether the Commission had engaged in sufficient conciliation. See, e.g., EEOC v. Mach Mining, LLC, 738 F.3d 171, 177 (7th Cir.2013) (holding that Title VII’s statutory directive to attempt conciliation was “not subject to judicial review”); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir.1978) (holding that “good faith efforts” at conciliation were required, but “a court should not examine the details of the offers and counteroffers between the parties, nor impose its notions of what the agreement should provide.”)

In Mach Mining, LLC, 135 S.Ct. at 1656, the United States Supreme Court provided considerable guidance on this issue, holding that, in the context of the EEOC’s obligation to conciliate, the scope of judicial review is “narrow; reflecting the abundant discretion the law gives the EEOC to decide the kind and extent of discussions appropriate in a given case.” See also id. at 1653 (describing the scope of review as “limited” and “relatively bare-bones”). The Court explained that Title VII requires that “the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice — but goes no further.” Id. at 1653 (emphasis added). Specifically, in addition to informing the employer about the allegation (“as the Commission typically does in a letter announcing its determination of ‘reasonable cause’ ”), the EEOC

must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.

Id. at 1655-56 (emphasis added).

JetStream’s Motion argues that the EEOC did conduct a “sincere and reasonable conciliation” because it initially proposed that JetStream create a settlement fund for “aggrieved individuals” who had not yet been identified, and because the EEOC “demanded that Jetstream reinstate all other aggrieved individuals that it could identify.” (Doc. # 83 at 18.) Jet-Stream further contends that the EEOC’s negotiations on behalf of the Intervenors evidenced its “bad faith because the EEOC did not negotiate in an individualized manner. Instead, the EEOC demanded an unsubstantiated lump sum of $755,500 (without any calculations or disclosed bases), while rejecting Jetstream’s individualized offers.” (Id. at 19.)

It is clear that JetStream’s objections to the EEOC’s efforts all relate to the substantive terms of the bargaining between it and the EEOC — not to the process of conciliation or whether the EEOC “attempted” to conciliate. Mach Mining, however, specifically stays this Court’s hand, and provides that it may determine whether the EEOC has provided notice of the allegations and “engaged the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice,” but may not police the details of the offers and counteroffers between JetStream and the Commission. In other words, it may not evaluate “what happened (i.e., statements made or positions taken) during [settlement] discussions.” See Mach Mining, LLC, 135 S.Ct. at 1655-56; see also Equal Employment Opportunity Comm’n v. Blinded Veterans Ass’n, No. CV 14-2102, 2015 WL 5148737, at *8 (D.D.C. July 7, 2015) (examining conciliation the context of the Age Discrimination in Employment Act and noting that a defendant’s “invitation for the [c]ourt to place itself in the shoes of the negotiating parties;.. .to question whether the EEOC should have sought clarification, and to evaluate whether the EEOC ended the conciliation process to abruptly vastly exceeds the type of review contemplated by Mach Mining.”); Zia Co., 582 F.2d at 533 (noting that in determining the sufficiency, of conciliation efforts, the Court may not “examine the details of the offers and counteroffers between the parties.”)

That JetStream would have preferred individualized settlement counteroffers to match its own, or wished that the EEOC was not as aggressive as it was with respect to additional “aggrieved employees” who were affected by its uniform policy, is of no moment: the Commission is entitled to “expansive discretion... over the conciliation process.” Id. at 1653. Specifically, it “need only ‘endeavor’ to conciliate a claim, without having to devote a set amount of time or resources to that project.” Id. at 1654. Additionally, its efforts “need not involve any specific steps 'or measures,” and it — not this Court — may “decide the kind and extent of discussions appropriate in a given case.” Id. at 1654, 1656. It is also up to the EEOC to decide when conciliation has failed. Id. at 1654 (noting that the EEOC may decide “when to quit the effort” and the “pace and duration” of conciliation efforts).

It is undisputed that the EEOC did, in fact, engage in substantive conciliation efforts with Defendant. Specifically, in exchanging multiple settlement offers and in meeting in person with JetStream, the Commission tried “to engage [JetStream] in some form of discussion... so as to give [it] an opportunity to remedy the allegedly discriminatory practice.” See id. at 1653, 1655-56. Applying the “limited” scope'of review mandated by Mach Mining, Court finds that the Commission’s settlement efforts here were sufficient to fulfill Title VII’s conciliation requirements.

2. MS. OBA’S CLAIMS

(i) Religious Discrimination and Disparate Treatment

Defendant contends that Ms. Oba’s religious accommodation and disparate treatment claims should be dismissed because she did not inform JetStream that she desired a religious accommodation, wore pants and did not wear a headscarf while at work, and “there is no evidence that Kinsella and Alexander [i.e., the individuals who it claims made the layoff decisions] even knew Oba was Muslim.” (Doc. # 83 at 11, 13.) The Tenth Circuit did require that an employee show that she had informed her employer of her need for a religious accommodation, but this requirement was recently abrogated by the United States Supreme Court. EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1122-23 (10th Cir.2013), rev’d, — U.S. -, 135 S.Ct. 2028, 2031, 192 L.Ed.2d 35 (2015). In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court held that an employee “need only show that his [or her] need for an accommodation was a motivating factor in the employer’s decision,” because Title VII “prohibits certain motives, regardless of the state of the actor’s knowledge,” and

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

135 S.Ct. at 2032, 2033(emphasis added). Thus, although “[a] request for accommodation, or the employer’s certainty that the [religious] practice [requiring accommodation] exists, may make it easier to infer motive, [it] is not a necessary condition of liability.” Id. at 2033 (emphasis added).

Because Defendants relied extensively on the Tenth Circuit’s Abercrombie & Fitch decision in moving for summary judgment on this claim, and because that decision was abrogated by the Supreme Court after the parties had filed their Motions for summary judgment, the Court asked the parties to file supplemental briefing regarding the impact of the case. (Doc. # 57.) The parties did so, and the Court considers this briefing herein.

Under the “failure to accommodate” burden-shifting analysis, the plaintiff employee bears the initial burden of production with respect to making out a prima facie case for failure to accommodate. Although the United States Supreme Court did not explicitly rework the elements of the prima facie case in Aber-crombie & Fitch, the decision makes it clear that a plaintiff may establish such a case by showing that (1) she had a bona fide religious belief that conflicted with an employment requirement; and (2) her need for an accommodation was a motivating factor in the employer’s decision to take an adverse employment action against her. Compare E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 798 F.Supp.2d 1272, 1282 (N.D.Okla.2011) (describing the prima fa-cie case as a “showing that (1) she had a bona fide religious belief that conflicts with an employment requirement; (2) she informed the employer of this belief; and (3) she was not hired for failing to comply with the employment requirement”) to 135 S.Ct. at 2032 (“Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has ‘actual knowledge’ of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his [or her] need for an accommodation was a motivating factor in the employer’s decision.”) If the employee establishes a prima facie case, the burden shifts to the defendant employer to “(1) conclusively rebut one or more elements of the plaintiffs prima facie case, (2) show that it offered a reasonable accommodation, or (3) show that it was unable to accommodate the employee’s religious needs reasonably without undue hardship.” Thomas v. National Ass’n of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir.2000).

JetStream argues that Ms. Oba fails to proffer a prima facie claim for religious accommodation or for disparate treatment, even post-Abercrombie & Fitch, because there is “no evidence” that JetStream’s desire to avoid a religious accommodation was a “motivating factor” in its decision to lay her off. (Doc. # 165 at 9.) Specifically, JetStream points to the fact that it is undisputed that Ms. Oba never requested an accommodation, did not discuss her religion during her JetStream interview (which was not with Mr. Norris), always wore pants and never wore a hijab (prior to her layoff) while working for Jetstream, and also never spoke with David Norris. (Id. at 6-9)

The EEOC counters, and the Court agrees, that there is sufficient evidence to create a disputed issue of fact as to whether JetStream’s decisionmakers knew — or, at the very least, suspected— that Ms. Oba desired an accommodation and laid her off to avoid giving her one. Significantly, far from being secretive about her religious clothing, Ms. Oba consistently wore religious garments in the workplace during non-work hours, donning and doffing them at the workplace several times each workday, including during her work breaks and when she arrived and left for the day. The Court also notes that the circumstances surrounding Ms. Oba’s layoff were otherwise indicative of pretext. First, Ms. Oba’s name was not included in a proposed layoff list sent on February 5, 2009, by Frank Austin (JetStream’s Director of Hub Operations and Planning) to Mariela Feliciano (JetStream’s Human Resources Director), Mr. Norris, and co-owner Mark Desnoyers. (Doc. # 117-8 at 2.) However, her name was included in an email Austin sent to these same individuals the following day, in which he explained that he had attached a “revised work schedule with changes regarding those names you sent earlier today” (Doc. # 117-9 at 1-2) (emphasis added). If jurors ultimately conclude that Mr. Norris was hostile toward women who wore headscarves and/or did not wish to provide them with an accommodation, they could also believe that some kind of communication occurred (for which there may or may not be documentation) in which Mr. Norris selected Ms. Oba for a layoff because he believed she might desire an accommodation. Additionally, unlike at least some other employees, there was no explanation in Ms. Oba’s personnel file for her selection for a layoff. Moreover, despite being purportedly selected because she was a slow worker, Ms. Oba was told she had done “nothing wrong” by Ms. Martinez when she notified her of the layoff, no one ever spoke with her lead about the speed of her work prior to selecting her for a layoff, she had never been disciplined for being slow, she was rehired immediately upon re-application and has performed quite competently since, earning pay increases and positive evaluations.

In addition to this, there is, of course, the obvious fact that Ms. Oba might well have been associated in Norris’s (or Austin’s) minds with the Interve-nors, who personally informed Mr. Norris that they identify as Muslims and that they desired a religious accommodation. Defendant argues that merely because the Intervenors did so “does not establish that JetStream knew or suspected” that Ms. Oba “harbored the same religious beliefs as the Intervenors,” and cites the Tenth Circuit’s reasoning behind its (now-abrogated) requirement of actual knowledge of a need for a religious accommodation— namely, that “religious beliefs and practices are individualized and idiosyncratic, and employees may engage in apparently religious practices for secular reasons and not need an accommodation, or may not view their religious practice as inflexible.” (Doc. # 165 at 8-9.) However, not only has the EEOC proffered competent (albeit hotly disputed) evidence that Mr. Norris might not have been one to recognize the finer distinctions among Muslims, it is significant that Ms. Oba was one of a group of African women who immigrated from the same region of Africa as the Intervenors, spoke the same language as the Interve-nors, and came to work wearing (and regularly donned and doffed) a headscarf and a skirt, including on JetStream’s premises and in view of her fellow employees. Moreover, Ms. Oba’s layoff occurred under questionable circumstances, and within three and half months of the Intervenors’ initial requests for accommodation. This evidence — taken as a whole, and viewed in the light most favorable to Ms. Oba, including any reasonable inferences therefrom — is certainly sufficient to create a disputed issue of material fact regarding whether JetStream’s decisionmak-ers made Ms. Oba’s “religious practice, confirmed or otherwise, a factor” in deciding to select her for a layoff, because they at least suspected that Ms. Oba (like the other Intervenors) desired a religious accommodation. See Abercrombie & Fitch, 135 S.Ct. at 2033 (emphasis added).

In sum, although the EEOC has not been able to proffer a “smoking gun,” it has pointed to sufficient evidence of smoke to require JetStream to convince a jury that “despite the smoke, there is no fire.” See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir.1992) (citing Price Waterhouse, 490 U.S. 228, 266, 109 S.Ct. 1775,104 L.Ed.2d 268 (1989) (O’Connor, J., concurring)). To put it slightly differently, there is sufficient evidence from which a jury could credit either JetStream’s proffered, legitimate nondiscriminatory reason for Ms. Oba’s layoff, or from which it could conclude that she was selected because she regularly wore 'religious garments. Accordingly, summary judgment is precluded on this claim. See Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir.1984) (“where different ultimate inferences may be drawn from the evidence presented by the parties, the case is not one for summary judgment.”); Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir.1995) (“So long as the plaintiff has presented evidence of pretext (by demonstrating that the defendant’s proffered non-discriminatory reason is unworthy of belief) upon which a jury could infer discriminatory motive, the case should go to trial. Judgments about intent are best left for trial and are within the province of the jury.”); Romero v. Union Pac. R.R., 615 F.2d 1303, 1309 (10th Cir.1980) (noting that questions of motive and intent are “particularly inappropriate for summary judgment disposition”).

(ii) Retaliation

Title VII’s anti-retaliation provision forbids an employer from discriminating against an individual because that individual “has opposed any practice made an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e-3(a). Where the plaintiff seeks to prove a Title VII retaliation claim through indirect or circumstantial evidence, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies. Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir.2007). To establish a prima facie case of retaliation under McDonnell Douglas, a plaintiff must demonstrate (1) that she engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action. Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1202 (10th Cir.2006).

JetStream contends that Ms. Oba’s retaliation claim should be dismissed because she did not request a religious accommodation — i.e., she did not engage in any protected opposition — and, “as a result, the EEOC cannot establish the first element of its prima facie case,” nor can it establish causation between any protected activity and her layoff. (Doc. # 83 at 15.) The EEOC argues that despite the fact Ms. Oba did not request an accommodation or otherwise complain about not being afforded one, she still engaged in protected activity insofar as she “opposed Defendant’s practices by continuing to wear her hijab openly at work during non-work times.” (Doc. # 117 at 23.) Accordingly, the Court needs to decide, as a matter of first impression, whether Plaintiff engaged in protected activity merely by wearing her religious clothing on the employers premises but during her breaks.

In University of Texas Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), the Supreme Court explained the differences Title VII’s antidiscrimination provision (§ 2000e-2) and its anti-retaliation provision (§ 2000e-3(a)):

Since the statute’s passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them— race, color, religion, sex, and national origin — are personal characteristics and are set forth in § 2000e-2... .And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct — the employee’s opposition to employment discrimination, and the employee’s submission of or support for a complaint that alleges employment discrimination — are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, § 2000e-3(a).

Id. at 2525-26; see also Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (emphasis added) (“The antidis-crimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.”)

Applying this distinction here, Ms. Oba’s religious accommodation and disparate treatment claims allege that she was discriminated against because of who she is — that is, a Muslim woman who actually requires an accommodation for her religious practice. The problem, however, is that because Ms. Oba never requested an accommodation and never complained (informally or otherwise), about JetStream’s failure to provide her with an accommodation, at bottom, her retaliation claim is premised on precisely the same theory as her discrimination claim: namely, that Jet-Stream retaliated against her because of who she is — that is, a Muslim woman who actually requires an accommodation for her religious practice. To put it slightly differently, on the factual record before the Court, the alleged wrong still begins, and ends, with Ms. Oba’s “personal trait.”

However, something more than conduct that is perfectly consistent with one’s protected status (that is, something more than wearing a headscarf on the job during breaks) must be alleged for a plaintiff to have engaged in “protected activity.” See Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188-89 (10th Cir.2002) (“The purpose of § 2000e-3(a) is to let employees feel free to express condemnation of discrimination that violates Title VII. That purpose is hardly served by imposing sanctions upon employers who take action against employees who never communicate their concern about unlawful discrimination.’’) At the very least, Ms. Oba was required to allege facts to indicate that she “conveyed” her “concern” to JetStream that its religious accommodation practices were unlawful or otherwise problematic. Indeed, the Tenth Circuit has specifically held that “[a]lthough no magic words are required, to qualify as protected opposition the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by the [statute]. General complaints about company management and one’s own negative performance evaluation will not suffice.” Hinds v. Sprint/United Mgt. Co., 523 F.3d 1187, 1202-03 (10th Cir.2008) (emphasis added); see also Dean v. Computer Scis. Corp., 384 Fed.Appx. 831, 839-40 (10th Cir.2010) (unpublished) (to survive summary judgment, an employee must allege facts to indicate that she “sufficiently conveyed a concern that [her employer] was permitting a practice made unlawful by Title VII”); Anderson v. Acad. Sch. Dist. 20, 122 Fed.Appx. 912, 916 (10th Cir.2004) (unpublished) (“[A] vague reference to discrimination and harassment without any indication that this misconduct was motivated by race (or another category protected by Title VII) does not constitute protected activity and will not support a retaliation claim.”)

The Court recognizes that there are a variety of ways to “convey a concern” to an employer in order to “oppose” an unlawful practice. See Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 277,129 S.Ct. 846, 172 L.Ed.2d 650 (2009) (“Countless people were known to ‘oppose’1 slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it ‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.”) Refusing to remove a hijab, for example, might — depending on the totality of the circumstances — sufficiently convey this concern. It is undisputed, however, that Ms. Oba never “conveyed” anything to Jet-Stream, symbolically or otherwise, about its failure to accommodate her hijab— much less any “concern” about this being an unlawful practice. See Hinds, 523 F.3d at 1202-03 (“to qualify as protected opposition the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by the [statute].”) As such, this element of her prima facie claim for retaliation fails, and her retaliation claim will be dismissed.

3. MS. HAJPS CLAIMS

It is undisputed that Ms. Haji was assigned three part-time shifts when she initially began working for JetStream in December of 2008, but that, beginning with her fourth shift, she began doing full-time work. Although JetStream does not explicitly argue that Ms. Haji’s religious accommodation and disparate treatment claims should be dismissed because she did not experience an adverse employment action, it does make this argument with respect to her retaliation claim, in noting that “Haji’s claim also fails on the second prima facie element [for retaliation] because receipt of a part-time schedule only resulted in Haji working three part-time shifts rather than three full-time shifts. Such a de minimis difference is not a materially adverse action.” (Doc. # 83 at 15.) As such, even though the requirements for material adversity differ slightly between retaliation claims and religious accommodation and disparate treatment claims, the EEOC was provided with an opportunity to argue that Ms. Haji, did, in fact, experience an adverse action for purposes of her religious accommodation and disparate treatment claims. In this regard, the EEOC stated that:

In asserting that there are no genuine fact issues, Defendant ignores testimony by Haji that she was told exactly why she was not hired full time — because all the full time positions had been filled by the time she acquiesced to remove her hijab and wear a company cap instead. Haji’s testimony alone raises a genuine issue of material fact as to whether she was denied work for a month and then denied full time employment because she sought accommodation.

(Doc. # 117 at 21.) A close examination of Ms. Haji’s deposition excerpts actually submitted by the EEOC reveals that the excerpts do contain testimony about her discussions with JetStream personnel about her desire to wear a hijab for religious reasons. What they do not contain, however, is any mention of an earlier start date (nor do any of the other depositions submitted to the Court). (See Doc. ## 84-54; 117-55). As such, the deposition transcripts do not support the proposition that Ms. Haji was supposed to begin work as of November 13, 2008.

In its statement of facts, the EEOC also asserts that “[ajccording to Defendant’s records, Haji’s first day of work was November 13, 2008, but she was not allowed to work until December 15,” citing to Exhibit 41 in support of its Motion for Summary Judgment. (Doc. # 117, ¶ 39) (emphasis added). The first page of Exhibit 41 is entitled “Time Card,” and appears to be a computer printout from a time-tracking program, for the week of November 9, 2008 (“Haji, Milko” is selected as the relevant employee from a drop-down menu). (Doc. # 117-41 at 1.) The bottom of the “Time Card” contains a notation that “I certify that the above time card is correct.” (Id.) The “Time Card” does not indicate that Ms. Haji’s start date was November 13, 2008; rather, the column for November 13, 2008 contains a time entry of 7.5 “worked hours.” (Id.) However, no other days that week reflect that there were “worked hours” (and it is undisputed that Ms. Haji did not actually work the 7.5 hours on November 13, 2008). (Id. at 1.) The second page of Exhibit 41 is titled “Employee Monthly Schedule Report” and contains a calendar of the month of December 2008, but no notations about November. (Id. at 2.) The EEOC also submitted an undated “New Hire Processing Form” with information about Ms. Haji, including her address. (Doc. # 117-5.) The form has a blank space for a “hire date” (which is not filled in), and has several, handwritten notations at the very bottom of the page — some are illegible, but the legible words read “Events 401K & Med” and a date (11/12/08), but does not have a place for (or otherwise indicate) a “start date.” (Id.)

To survive summary judgment, the party resisting the motion “may not rest upon the mere allegations” of her pleadings, including the arguments in the EEOC’s Response. See Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. Rather, disputed issues of fact must be supported by evidence on which a jury could reasonable find in favor of the non-moving party; a “mere scintilla” of evidence will not do, and if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 251, 106 S.Ct. 2505; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 678 n. 5 (10th Cir.1998). However, on the evidence before the Court (namely, the “Time Card” and “New Hire Processing” form), a jury would not be reasonably warranted in finding that Ms. Haji was supposed to start work on November 13, 2008. The “Time Card” merely appears to be a mistaken entry for hours which Ms. Haji undisputedly did not work; it is not a prospective work schedule, but rather is backward-looking (it states that “I certify that the above time card is correct”, and notes that she had 7.5 “hours worked” on November 13, 2008). (Doc. # 117-41 at 1.) Even assuming that it does represent a prospective work schedule, it has no entries for November 14th through 22nd— which would be expected given that Ms. Haji regularly worked five days a week. (Id.) Similarly, the mere fact that a date in November (11/12/08) is written on the bottom of Ms. Haji’s “New Hire Processing” form — notably, this date is within one day of, but does not match, the alleged November start date — is simply not competent evidence that Ms. Haji was supposed to start that day. (Doc. # 117-5.) At best, these documents represent a mere scintilla of evidence that Ms. Haji was supposed to start sooner than she did; they are certainly not probative, much less “significantly” probative, of the fact that she was supposed to start in November, and accordingly do not create a genuine issue of material fact sufficient to withstand summary judgment. Because there is not sufficient evidence to create a