Nicholson v. Hyannis Air Service, Inc.

Citations: 580 F.3d 1116; 2009 U.S. App. LEXIS 20020; 92 Empl. Prac. Dec. (CCH) 43,687; 107 Fair Empl. Prac. Cas. (BNA) 261; 2009 WL 2857198Docket: 08-15959

Court: Court of Appeals for the Ninth Circuit; September 8, 2009; Federal Appellate Court

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Tiffany Anne Nicholson sued her former employer, Cape Air, alleging sex discrimination after being suspended from flying the ATR 42 aircraft on routes in Guam and Micronesia. The district court granted summary judgment to Cape Air, ruling that Nicholson failed to establish a prima facie case of discrimination and that the airline's rationale for her suspension was not a pretext. Nicholson appealed this decision.

Cape Air is a small regional airline based in Massachusetts. Nicholson joined the company as a pilot in 2000, flying solo in a Cessna 402 until 2004, when she was selected as one of eight pilots to launch new services in Guam. She was the only woman in this group and had previously had a sexual relationship with a male pilot in the same program. Rumors about her involvement with Cape Air's Pacific Regional Administrator, Russell Price, circulated within the company.

The new Guam service involved flying the ATR 42, which requires two pilots. While Nicholson was qualified to be a captain, her junior status meant she served as a first officer. All pilots underwent training for the ATR 42, which included crew resource management (CRM) to enhance communication and teamwork. Despite receiving positive assessments during training, reports emerged from her supervisors and fellow pilots indicating Nicholson struggled with CRM skills, displaying a "machismo" attitude and being uncooperative. 

In response to these reports, Price developed a plan to observe Nicholson's CRM performance during flights, which set the stage for the disciplinary actions leading to her suspension. The appellate court reversed the district court's decision, indicating that there may be grounds for further examination of Nicholson's claims.

White removed Nicholson from an August 31, 2004 flight due to perceived safety concerns stemming from their prior sexual relationship and tensions in the cockpit. After Nicholson's removal, Price required her to observe other pilots and later fly under his supervision. During her flights with various pilots, including John Kappeyne and White, Nicholson exhibited deficient Crew Resource Management (CRM) skills, leading to a dangerous flight that Price described as one of his "top ten scary and dangerous flights." Following this, Cape Air management reviewed her performance, resulting in an Action Form citing her inability to communicate effectively, an uncooperative attitude, and inconsistent CRM skills, which created unsafe conditions. As a consequence, Nicholson was prohibited from flying ATR 42s and could only operate single-pilot Cessna 402s outside the Pacific region, with a possibility of review after 18 months. She was also mandated to consult an employee assistance program, attend CRM training, and was placed on probation for six months. A week later, the Action Form was revised to allow her to fly Cessna 402s in the Pacific region and expedited the review for ATR 42 qualification to six months. Nicholson appealed the revised Action Form, which was affirmed by human resources and Cape Air's CEO, but it is unclear if she was informed of the final decision.

Nicholson bid on ATR 42 flights instead of the Cessna 402 flights she was eligible for, leading Cape Air to terminate her on the grounds of abandonment of her position. The record lacks clarity on whether she was informed that this bidding error would result in termination. Nicholson claims her removal from the ATR 42 program stemmed from gender bias, asserting that complaints regarding her CRM skills were unfounded and that her presence was viewed as a threat by male coworkers. She alleges that Cape Air's true motivation for her discipline was to eliminate competition among male pilots and that she was denied the retraining opportunities offered to male pilots with similar skill deficiencies. Nicholson also criticizes the company's disciplinary procedures as inadequate and suggests that her initial ban from flying in the Pacific Region aimed to reduce sexual tension. Additionally, she references prior personal interactions with White, a colleague whose past relationship with her allegedly influenced his judgment against her. Following a right to sue letter from the EEOC, Nicholson filed a Title VII discrimination claim against Cape Air. The district court granted summary judgment for Cape Air, concluding that she failed to establish a prima facie case of discrimination due to her lack of necessary communication and cooperation skills and the absence of comparably treated male employees. Despite her appeal, the court maintained that she did not sufficiently counter the company's legitimate rationale for her removal based on CRM deficiencies. The analysis follows the McDonnell Douglas burden-shifting framework, focusing on whether Nicholson was qualified for the ATR 42 position and if similarly situated individuals were treated more favorably.

Nicholson is deemed qualified to fly ATR 42s, as Cape Air's assertion that her CRM deficiencies prevent her from establishing a prima facie case under the McDonnell Douglas framework is incorrect. Nicholson contends that her CRM skills are adequate and that such skills are subjective qualifications, which should not be evaluated at the initial phase of the McDonnell Douglas analysis. The court agrees, emphasizing that only objective criteria should be considered at this stage, as established in Lynn v. Regents of Univ. of Cal., which highlights that subjective evaluations should be reserved for later steps in the process to maintain the integrity of the three-step analysis. Cape Air's argument that CRM skills are essential for safety does not negate the subjective nature of the evaluation; the discrepancy between Nicholson's "excellent" CRM rating from an instructor and her co-pilots’ claims of deficiencies further illustrates this subjectivity. Cape Air also contends that Nicholson waived her argument regarding the consideration of subjective criteria at step one by not raising it in the district court, but the court finds that Nicholson’s argument supports her assertion of being qualified and thus is not precluded.

Silveira v. Apfel, 204 F.3d 1257, 1260 n. 8 (9th Cir. 2000) addresses an argument raised for the first time on appeal, noting it was a pure legal question that the opposing party could respond to. Cape Air contends that Nicholson fails to meet the objective criteria for flying ATR 42s, asserting she lacks abilities such as crew coordination and cockpit discipline, despite evidence of her previous commendable performance in those areas. This claim is flawed for two reasons: a factual dispute exists regarding Nicholson's abilities, and the identified deficiencies are merely a subset of her subjective Crew Resource Management (CRM) skills, which should not be factored into her prima facie qualifications. Therefore, the district court incorrectly ruled that Nicholson was unqualified; objectively evaluated, she met the ATR 42 pilot criteria.

Regarding the fourth element of Nicholson's prima facie case, she must show that similarly situated male pilots received more favorable treatment. She cites two male pilots who were granted additional training opportunities after failing parts of their training, unlike her. Cape Air counters that these pilots' deficiencies were technical rather than CRM-related, disqualifying them as comparables. Cape Air also claims Nicholson received retraining after her removal, which led to her eventual disqualification. However, the court must assess whether the pilots were similarly situated, defined by analogous job roles and conduct. The district court ruled that the pilots were not comparable due to differing types of deficiencies, but this reasoning was flawed; both technical and CRM deficiencies can be addressed through retraining, as evidenced in Cape Air’s practices. The district court's distinction between retrainable technical skills and supposedly permanent CRM issues ignored substantial evidence of required CRM training for all pilots.

Cape Air regards Crew Resource Management (CRM) as a retrainable skill, evidenced by its requirement for Nicholson to undergo CRM training at the same flight school that trained two male pilots who had deficiencies. Both CRM and technical piloting skills are crucial for flight safety, and Cape Air does not consider the differences between them material when assessing whether the male pilots and Nicholson were "similarly situated." Evidence suggests that the male pilots received more favorable treatment, as Nicholson alleges she was not offered adequate remedial training or constructive criticism regarding her CRM deficiencies. This disparity indicates that she was treated less favorably than her male counterparts, which is significant enough to deny summary judgment. Cape Air claims that Nicholson's suspension from the ATR program was due to her CRM deficiencies, a position supported by testimonies and documentation. Having established a prima facie case, the burden shifts to Cape Air to provide a legitimate, nondiscriminatory reason for its actions. At the third step of the McDonnell Douglas framework, Nicholson must demonstrate that Cape Air's justification is pretextual, suggesting that a discriminatory motive is more likely or that the employer's explanation lacks credibility.

To avoid summary judgment, the plaintiff must show a genuine dispute of material fact regarding pretext, requiring minimal evidence. Any indication of discriminatory motive can suffice to raise a factual question. Nicholson has met her burden at step three, presenting evidence of irregularities in her disciplinary proceedings as indicative of discriminatory motive, including a cursory investigation by the disciplinary panel and evidence that Cape Air solicited derogatory letters about her from other pilots. Although Nicholson did not submit the employee handbook as evidence, Cape Air's knowledge of rumors about her and her prior relationship with a coworker supports an inference of discriminatory intent, particularly given actions that limited her flying capabilities despite her qualifications. Additional evidence includes a statement made by White after Nicholson's termination suggesting her job loss was tied to their relationship, and Cape Air’s inaction regarding this comment. Furthermore, discrepancies in how Cape Air treated Nicholson compared to male pilots, along with sex-related remarks, bolster the claim that her discipline was based on sex discrimination rather than performance issues. In cases under the McDonnell Douglas framework, minimal evidence is sufficient to survive summary judgment, as the ultimate question requires thorough examination by a factfinder.

Nicholson provided sufficient evidence to raise a genuine issue of material fact regarding whether Cape Air suspended her due to her sex, making the district court's summary judgment in favor of Cape Air improper. Although Nicholson included deposition excerpts in her appeal that were not filed with the district court, violating Fed. R. App. P. 10(a)(1), the court determined that monetary sanctions were not warranted because the violation was minimal and the arguments based on the improper excerpts were peripheral. Cape Air's reliance on the case Lowry v. Barnhart to justify harsher sanctions was rejected, as the violations in Lowry were more severe and the offending party had admitted to indefensible conduct. Consequently, the court reversed the district court's decision and remanded the case for further proceedings. The summary judgment review is conducted de novo, with the standard requiring no genuine issue of material fact for a party to prevail as a matter of law.

A reviewing court must evaluate evidence during summary judgment in a manner favorable to the non-moving party, drawing all reasonable inferences for that party (Bank of New York v. Fremont Gen. Corp., 514 F.3d 1008, 1014 (9th Cir. 2008)). In the context of the McDonnell Douglas test, CRM skills of pilots cannot be considered at the initial step, aligning with previous rulings by the District of Minnesota, which emphasized the use of only "minimum objective criteria" for pilot evaluation, excluding subjective factors like CRM skills (Ludwig v. Northwest Airlines, Inc., 98 F.Supp.2d 1057, 1064-65 (D.Minn. 2000); Axtell v. Northwest Airlines, Inc., No. Civ. 972632 ADM/AJB, 1999 WL 33912056, at *4 (D.Minn. June 30, 1999)). Cape Air did not argue that male pilots were not similarly situated to Nicholson due to their deficiencies being addressed during training. Additionally, Cape Air failed to challenge the hearsay nature of a statement in Nicholson's declaration, thereby waiving any objection. Nicholson's attempt to include the employee handbook in the appeal record is unsuccessful; the handbook was not officially filed, as the district court had denied her motion to file a sur-reply. The clerk's stamp indicating filing does not override the judge's decision, and documents that are merely "lodged," rather than filed, are not part of the appeal record (Barcamerica Int'l. v. Tyfield Imps. Inc., 289 F.3d 589, 594-95 (9th Cir. 2002); Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 684 (9th Cir. 1993)). Consequently, the documents are not considered by this court.