FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIFFANY ANNE NICHOLSON, 

Plaintiff-Appellant, No. 08-15959

v. D.C. No.  1:06-cv-00027 HYANNIS AIR SERVICE, INC., DBA

Cape Air, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Guam

Frances Tydingco-Gatewood, Chief District Judge, Presiding

Argued and Submitted

February 11, 2009—Honolulu, Hawaii

Filed September 8, 2009

Before: Stephen Reinhardt, Melvin Brunetti, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Reinhardt

12645
COUNSEL

Phillip Torres, Hagåtña, Guam, for the plaintiff-appellant.

David Ledger, Elyze J. McDonald, Hagåtña, Guam, for the

defendant-appellee.

OPINION

REINHARDT, Circuit Judge:

Tiffany Anne Nicholson alleges that her former employer

Cape Air discriminated against her on account of her sex

when it suspended her from flying the two-pilot ATR 42 airplane on Cape Air’s Guam and Micronesia routes. The district

court granted Cape Air’s motion for summary judgment, finding that Nicholson could not establish a prima facie case of

discrimination, nor that Cape Air’s explanation for its disciplinary action was a pretext for discrimination. She appeals

the grant of summary judgment to Cape Air. We reverse.

FACTUAL BACKGROUND

Defendant-Appellee Hyannis Air Service, Inc., which does

business as Cape Air (hereinafter “Cape Air”), is a small

regional airline based in Hyannis, Massachusetts. Plaintiff12650 NICHOLSON v. HYANNIS AIR SERVICE
Appellant Tiffany Anne Nicholson was hired as a Cape Air

pilot in 2000. From 2000 until 2004, she piloted a Cessna 402

aircraft, of which she was the Captain and sole pilot in its

one-pilot cockpit. Although she never flew a two-pilot airplane, there is no indication in the record that she ever had

any difficulty with her communication or cooperation skills

during this period.

In 2004, Nicholson was one of eight pilots selected to

launch Cape Air’s new service providing flights between

Guam and the neighboring Micronesian islands for Continental Airlines. She was the only woman among the eight pilots

selected to fly the new routes. The pilots group also included

Chuck White, a captain with whom Nicholson had previously

had a year-long sexual relationship. The service was overseen

by Cape Air’s Pacific Regional Administrator Russell Price.

Price and Nicholson had been the subject of rumors that traveled throughout Cape Air suggesting that they were sexually

involved.

Cape Air’s new Guam service was provided using ATR 42

airplanes rather than Cessna 402s. The ATR 42, unlike the

Cessna 402, has a two-pilot cockpit, and each flight requires

both a captain and a first officer. The eight pilots in the Guam

program were selected based upon their seniority, with the

four most senior pilots serving as captains. Nicholson was

qualified to serve as a captain but, because she was one of the

more junior pilots, she flew as a first officer. Because the

Guam service involved an airplane that was new to Cape

Air’s operations, all eight pilots received training consisting

of ground school in Hyannis and simulator training at Flight

Safety, an independent company in Houston, Texas. The

training included instruction in both the operation of the ATR

42 and crew resource management (“CRM”). CRM consists

of the communication and cooperation skills that enable the

pilots and crew of an airplane to work together to maximize

the safety and efficiency of a flight.

NICHOLSON v. HYANNIS AIR SERVICE 12651
During the training in Houston, two male pilots failed their

check rides in the simulator. They were retrained to proficiency and passed on their second attempt. Nicholson did not

fail any tests or check rides. On June 14, 2004, her Flight

Safety instructor rated her communication and cooperation

skills as “excellent.”

After the pilots began to fly the new routes between Guam

and its neighbors, however, Nicholson’s supervisors and the

other pilots reported that she exhibited problems with her

communication and cooperation skills. Cape Air’s Director of

Training David O’Connor asserted that Nicholson had a

“machismo” attitude, was dismissive of input from others, and

refused to provide assistance requested by her co-pilots. The

four captains in the Guam program also reported to Price that

Nicholson’s CRM skills were inadequate.

Price responded to the reports of Nicholson’s CRM deficiencies by formulating a plan to observe her CRM skills inflight. Before Price could begin his observation, however,

White removed her from an August 31, 2004 flight. White

was scheduled to fly a number of flights with Nicholson that

day, but he claimed that the tension in the cockpit during their

first flight of the day made the cockpit unsafe. White permitted Nicholson to fly the plane back to Guam, then removed

her from the plane before their next flight. White acknowledged at his deposition that he had concerns about flying with

Nicholson because of their prior sexual relationship, and further admitted that, in deciding whether to remove Nicholson

from the flight, he had been unsure whether his negative interactions with Nicholson were related to their prior relationship.

Price responded to Nicholson’s removal from White’s

plane by requiring her to spend four days observing other

pilots and flying under Price’s observation. Price first asked

her to observe another pair of pilots. Nicholson observed two

of the seven or eights flights the pilot team was scheduled to

fly that day. The following day Price asked Nicholson to fly

12652 NICHOLSON v. HYANNIS AIR SERVICE
with John Kappeyne while Price observed their interactions.

She arrived without a required headset and was unable to fly

for a large part of the day. According to Price, when Nicholson did fly with Kappeyne her CRM skills were deficient but

Kappeyne’s authoritarian approach “kept [her] on a very tight

leash.”

The following day, Price decided to have Nicholson fly

with White once again while Price observed from the jumpseat. The resulting flight was, according to Price, one of his

“top ten scary and dangerous flights” because of White and

Nicholson’s inability to communicate effectively. Price

claimed that Nicholson was “defensive, antiauthoritarian, egodriven;” made one serous mistake but was not humbled by it;

and caused a “total breakdown of CRM.” At the end of the

flight, Price asked White and Nicholson how the flight had

gone. White was speechless and pale, while Nicholson said,

“It’s like this most days,” and told Price that the earlier flight

from which White had first removed her had been similar.

After the return flight to Guam, Price ordered her off the

plane and flew in her place for the remainder of the day.

Following her second removal from a flight, Cape Air

required Nicholson to return to Hyannis to meet with Cape

Air management regarding her alleged CRM problems. Based

on reports provided by a number of pilots, including Price,

and conversations with Nicholson herself, a disciplinary panel

prepared an Action Form. The Action Form provided as its

reason for action: “Unable to interact and communicate effectively in a flight crew environment. Failed to assist the captain

in the most efficient manner possible to make certain flights

were accomplished at the highest level of safety as required

by the GOM. Uncooperative attitude and inconsistent CRM

skills created unsafe operating conditions in the cockpit.” 

The Action Form prohibited Nicholson from flying ATR

42s. Instead, she was permitted to fly only (single-pilot)

Cessna 402s outside of the Pacific region (i.e., outside of

NICHOLSON v. HYANNIS AIR SERVICE 12653
Guam and Micronesia). Nicholson’s removal from the ATR

42 program could be reviewed in 18 months. In addition,

Nicholson was required to consult an employee assistance

program to address her CRM problems and to attend CRM

training at Flight Safety in Houston. Finally, she was placed

on probation for six months.

One week later, the Action Form was revised to permit

Nicholson to fly Cessna 402s in the Pacific region, including

Guam, and to provide for review of her ability to fly ATR 42s

in six months rather than eighteen. 

Nicholson appealed the Revised Action Form, and it was

reviewed and affirmed by human resources director Linda

Markham and Cape Air CEO Dan Wolf. The record does not

indicate whether Nicholson was ever informed of Wolf’s

decision. Rather than bidding for Cessna 402 flights, as the

Revised Action Form permitted her to do, Nicholson bid on

ATR 42 flights for which she was no longer eligible. Cape Air

considered her to have abandoned her position with Cape Air,

and she was terminated. The record does not reveal, and the

parties could not state at oral argument, whether she was ever

informed that her failure to bid on Cessna 402 flights would

result in her termination.

Nicholson alleges that the complaints about her CRM skills

leading to her discipline and the decision to remove her from

the ATR 42 program resulted from her being the only woman

in the program, rather than from her alleged CRM deficiencies. According to Nicholson, she was removed from the ATR

42 program because she “was the only female in an all male

situation and . . . the guys didn’t think that they would be able

to do what they wanted with a girl hanging around.” She

claims that Cape Air’s actual purpose in disciplining her was

to remove an object of sexual competition from its Guam service.

In support of her allegations, Nicholson asserts that she

does not suffer from any CRM deficiencies and that, even if

12654 NICHOLSON v. HYANNIS AIR SERVICE
her skills were deficient, she was removed from the program

without being provided the same retraining opportunity provided to the male pilots who failed portions of their training.

Nicholson also alleges that the company’s disciplinary procedures were cursory and irregular. She asserts that the initial

ban on her flying all planes in the Pacific Region reflects the

company’s desire to eliminate the sexual tension that resulted

from her presence in the area, even though the company

quickly realized its error and withdrew that part of its discipline a week later. Finally, Nicholson notes that White admitted that the prior sexual relationship affected his working

relationship with Nicholson; that Markham had confronted

Price regarding his rumored relationship with Nicholson

shortly before the incidents leading to her discipline; and that

in November 2004 White suggested to Nicholson that nothing

would have happened to her had she not rebuffed his efforts

to rekindle their relationship.

Procedural History

After receiving a right to sue letter from the EEOC, Nicholson filed an action against Cape Air, alleging that she had

been demoted from the ATR 42 program on account of her

sex in violation of Title VII, 42 U.S.C. § 2000e-2. The district

court granted Cape Air’s motion for summary judgment, finding that Nicholson could not establish a prima facie case

because her lack of communication and cooperation skills

made her unqualified to fly ATR 42s, and because there were

no similarly situated employees who were treated more favorably. The district court also found that, even if Nicholson

could establish a prima facie case, summary judgment for

Cape Air was appropriate because she had not presented evidence to rebut Cape Air’s legitimate, non-discriminatory

explanation for its actions, namely, that she was disciplined

on account of her CRM deficiencies. Nicholson filed a timely

notice of appeal.1

1The district court’s grant of summary judgment is reviewed de novo.

Fin. Mgmt. Advisors, LLC v. Am. Int’l Specialty Lines Ins. Co., 506 F.3d

NICHOLSON v. HYANNIS AIR SERVICE 12655
Discussion

To prove her claim of discrimination, Nicholson relies

upon the three-step burden-shifting scheme established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We

analyze each step in turn.

I. Nicholson’s Prima Facie Case

[1] “Under McDonnell Douglas, a plaintiff alleging disparate treatment under Title VII must first establish a prima

facie case of discrimination. Specifically, the plaintiff must

show that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his

protected class were treated more favorably.” Chuang v. Univ.

of Cal. Davis Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir.

2000) (citation omitted). Cape Air does not dispute that Nicholson is a member of a protected class (women) and that

Nicholson suffered an adverse employment action (removal

from eligibility to fly ATR 42s). Accordingly, we need determine only whether Nicholas was qualified for the position,

and whether similarly situated individuals were treated more

favorably.

A. Nicholson Was Qualified

Cape Air alleges, and the district court held, that Nicholson

cannot establish a prima facie case under McDonnell Douglas

because her CRM deficiencies rendered her unqualified to fly

922, 925 (9th Cir. 2007). Summary judgment is appropriate where no genuine issue of material fact exists and a party is entitled to prevail in the

case as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). The reviewing court “must view the evidence on summary

judgment in the light most favorable to the non-moving party and draw all

reasonable inferences in favor of that party.” Bank of New York v. Fremont

Gen. Corp., 514 F.3d 1008, 1014 (9th Cir. 2008). 

12656 NICHOLSON v. HYANNIS AIR SERVICE
ATR 42s. Nicholson claims that her CRM skills were sufficient, and that, regardless, CRM skills are a subjective job

qualification that should not be considered at the first phase

of the McDonnell Douglas analysis. Because Nicholson is

correct that CRM skills are a subjective qualification that cannot be considered in evaluating a plaintiff ’s qualifications at

the first step of McDonnell Douglas, the district court erred

in finding that Nicholson was not qualified.

[2] This court has long held that subjective criteria should

not be considered in determining whether a plaintiff is “qualified” for purposes of establishing a prima facie case under

McDonnell Douglas. Instead, “[t]he qualifications that are

most appropriately considered at step one [of McDonnell

Douglas] are those to which objective criteria can be applied

. . . .” Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1345

n.8 (9th Cir. 1981). 

Lynn involved an allegedly discriminatory decision to deny

a professor tenure. The university argued that the plaintiff

could not establish a prima facie case under McDonnell

Douglas because her deficient scholarship rendered her

unqualified for tenure. We rejected that argument and held

that, for the purposes of McDonnell Douglas’s first step,

Lynn’s qualifications had to be determined by objectively

measurable criteria “such as level of education, years of

teaching experience, in general and at the particular institution, and the publication of scholarly materials.” Id. As we

explained, “subjective criteria, along with any supporting evidence, are best treated at the later stages of the process. To do

otherwise would in many instances collapse the three step

analysis into a single initial step at which all issues would be

resolved . . . . defeat[ing] the purpose underlying the McDonnell Douglas process.” Id. at 1344. Accordingly, we held that

the scholarly merit of Lynn’s work should be considered only

at the second and third steps of the McDonnell Douglas

framework. Id. at 1344-45. 

NICHOLSON v. HYANNIS AIR SERVICE 12657
[3] Lynn’s reasoning is as applicable to a pilot’s CRM

skills as to the scholarly merit of a professor’s work. The

evaluation of a pilot’s communication and cooperation skills

requires a subjective evaluation of the pilot’s attitude, manner,

tone, and other similar traits — evaluations that are inherently

subjective. Here, as in Lynn, if such subjective criteria are

considered in evaluating a plaintiff ’s qualifications at step

one of the McDonnell Douglas inquiry, the entire burdenshifting scheme collapses into a single inquiry into the truth

of a subjective claim regarding Nicholson’s alleged inadequacies. Thus, here as in Lynn, the first step must focus on the

plaintiff ’s objectively measurable qualifications.2

Cape Air argues that the subjective/objective distinction

should not apply to CRM skills because “CRM for an ATR

42 pilot is an elemental and necessary qualification” and a

pilot may “put lives in danger for failing to exhibit proper

communication skills.” However, the distinction announced in

Lynn does not turn on the importance of a particular qualification to the job. It turns instead on the subjective or objective

nature of the matter in question. Here, the subjective nature of

Nicholson’s alleged deficiencies is most apparent from the

fact that an instructor at Flight Safety rated her CRM skills

“excellent” in June 2004, while her Cape Air co-pilots

2

In determining that a pilot’s CRM skills should not be considered at

step one of the McDonnell Douglas inquiry, we reach the same conclusion

as the only other federal court to have considered the issue. The District

of Minnesota, relying in part upon our decision in Lynn, has twice held

that CRM skills should not be considered at step one. See Ludwig v.

Northwest Airlines, Inc., 98 F. Supp. 2d 1057, 1064-65 (D. Minn. 2000)

(considering only “minimum objective criteria” required to be a Northwest

pilot at step one, and excluding from consideration various subjective

criteria including “CRM skills”); Axtell v. Northwest Airlines, Inc., No.

Civ. 972632 ADM/AJB, 1999 WL 33912056, at *4 (D. Minn. June 30,

1999) (“While recognizing NWA’s interest in evaluating a candidate’s

CRM and technical skills through an interview process, the law of this circuit makes it clear that only objective criteria can be used when evaluating

whether a plaintiff has made out a prima facie case.”). 

12658 NICHOLSON v. HYANNIS AIR SERVICE
claimed only two months later that CRM deficiencies made

her unsafe to fly.

Cape Air defends the district court’s finding that Nicholson

was not qualified on two additional grounds. First, Cape Air

argues that Nicholson waived her argument that subjective

criteria should not be considered at step one by failing to raise

it in the district court. However, Nicholson’s argument simply

provides additional legal support for a contention that Nicholson indisputably raised below, i.e., that she was qualified to

fly ATR 42s. Accordingly, Nicholson is not precluded from

raising the argument here. See Silveira v. Apfel, 204 F.3d

1257, 1260 n.8 (9th Cir. 2000) (considering argument raised

for the first time on appeal where the argument was “a pure

question of law, and the [opposing party] had the opportunity

to respond to the argument on appeal”).

Second, Cape Air argues that Nicholson cannot meet the

“objective” criteria for flying ATR 42s. According to Cape

Air, while its general operating manual requires first officers

to “assist the captain, maintain a high degree of crew coordination and cockpit discipline, and perform other duties

required by the captain,” Nicholson has demonstrated that she

cannot do these things. This argument fails for two reasons.

First, there is at the very least a factual dispute as to whether

Nicholson is able to perform each of these tasks, because she

was at times praised for her behavior in the cockpit. Second,

and more important, the deficiencies identified by Cape Air

as “objective” are simply a subset of Nicholson’s subjective

CRM skills, and thus cannot be considered in evaluating

Nicholson’s prima facie case.

[4] Accordingly, the district court erred in finding that

Nicholson was not qualified for the job of an ATR 42 pilot.

Considering only the objective criteria required to perform as

an ATR 42 pilot, Nicholson was clearly qualified.

NICHOLSON v. HYANNIS AIR SERVICE 12659
B. Nicholson Has Produced Evidence that Similarly Situated Employees Were Treated More Favorably

To establish the fourth element of her prima facie case,

Nicholson must produce evidence that similarly situated male

pilots were treated more favorably than she was. See Chuang,

225 F.3d at 1123. To do so, Nicholson points to two male

pilots who failed portions of their training at Flight Safety and

were then given additional training and a second opportunity

to pass that portion of the training, rather than being immediately removed from the ATR 42 program. Nicholson alleges

that she received no such second opportunity prior to her

removal from the program. Cape Air responds that, because

the deficiencies these two pilots exhibited were technical

rather than CRM-related, neither was similarly situated to

Nicholson. Cape Air also asserts that the pilots were not

treated more favorably because Nicholson also received

retraining — namely, the plan implemented by Price following Nicholson’s removal from White’s plane. According to

Cape Air, it was only after she failed this second round of

training that she was removed from the ATR 42 program.3

1. The Other Pilots Were Similarly Situated

[5] “[I]ndividuals are similarly situated when they have

similar jobs and display similar conduct.” Vasquez v. County

of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). The

employees need not be identical; they must simply be similar

“in all material respects.” Moran v. Selig, 447 F.3d 748, 755

(9th Cir. 2006) (emphasis added).

The district court found that the two pilots who required

retraining while at Flight Safety were not similarly situated

3Cape Air does not contend that the male pilots were not similarly situated to Nicholson because their deficiencies were recognized and

addressed during the pilots’ training at Flight Safety rather than after Cape

Air’s Guam service was up and running. 

12660 NICHOLSON v. HYANNIS AIR SERVICE
because they did not “engage[ ] in comparable conduct, specifically, deficient and unsafe CRM skills,” and because

“[o]ne can be retrained and refine their piloting skills; however, if personality is an issue, the CRM skills, if not

improved upon, may continue to pose a real risk of safety.”

However, the distinctions drawn by the district court were not

material: Both technical piloting and CRM skills involve deficiencies that can be addressed through retraining, as Cape

Air’s own practices demonstrate, and deficiencies in both

“pose a real risk of safety” if unaddressed. Indeed, Cape Air

itself has “urge[d] this Court not to divorce CRM skills from

technical skills when evaluating an ATR 42 pilot’s qualifications.”

In suggesting that technical skills can be “retrained and

refine[d]” while CRM skills are somehow more permanent,

the district court failed to consider the abundant evidence in

the record regarding the CRM training required of all pilots.

This evidence showed that Cape Air treats CRM as a particular skill that can be retrained and refined; were it otherwise,

the remedial program suggested by Cape Air in Nicholson’s

Revised Action Form would have been pointless. In fact,

Cape Air required that Nicholson’s CRM training be provided

by the exact same flight school where the two male pilots

received additional training to remedy their deficiencies. Furthermore, deficiencies in both CRM skills and technical piloting skills, “if not improved upon, may continue to pose a real

risk of safety.” If anything, a pilot’s technical failings may

pose an even greater risk to the safety of crew and passengers.

[6] Thus, although CRM skills are different from the other

skills required of pilots, any distinction between CRM skills

and technical piloting skills is not material for purposes of

determining whether the male pilots were “similarly situated”

to Nicholson. The CRM skills allegedly lacking in Nicholson

and the technical piloting skills lacking in the male pilots each

were skills required of pilots and necessary for safe flying,

and Cape Air treated both sets of skills as ones that could be

NICHOLSON v. HYANNIS AIR SERVICE 12661
acquired and improved upon through training. Because any

distinctions were not material, the male pilots were similarly

situated.

2. The Male Pilots May Have Been Treated More

Favorably

We must not only identify similarly situated male employees, however; we must also conclude, taking all evidence in

the light most favorable to Nicholson, that those employees

were treated more favorably, i.e., that Nicholson did not

receive the same opportunity for additional training as the

male pilots. 

According to Cape Air, the remedial program instituted by

Price following Nicholson’s first removal from White’s plane

was a second round of training comparable to the additional

training received by the male pilots. Price testified that he

explained to Nicholson “[s]everal times” that her job was at

stake, that her lack of CRM skills was “a serious safety

issue,” and that if it was not fixed “job action . . . including

termination would be the result.” However, Nicholson claims

that she was not offered any remedial training. According to

Nicholson, when Price observed her flying he did not offer

any constructive criticism, other than telling her that she

might ask too many questions, and she received no advice at

all as to how she might correct her supposed deficiency.

[7] Construing the evidence in Nicholson’s favor, the male

pilots received comprehensive remedial training at Flight

Safety in order to correct their deficiencies, while Nicholson

received no instruction and little, if any, constructive criticism

prior to being suspended from the ATR 42 program, initially

for eighteen, later modified to six, months. This qualitative

difference in treatment provides sufficient evidence that Nicholson was treated less favorably than similarly situated male

pilots to preclude summary judgment at McDonnell Douglas’s first step.

12662 NICHOLSON v. HYANNIS AIR SERVICE
II. Cape Air Articulated a Legitimate, Nondiscriminatory Reason for its Actions

[8] Because Nicholson produced evidence sufficient to

establish a prima facie case under McDonnell Douglas, “[t]he

burden of production, but not persuasion, . . . shifts to [Cape

Air] to articulate some legitimate, nondiscriminatory reason

for the challenged action.” Chuang, 225 F.3d at 1123-24.

Here, Cape Air alleges that Nicholson was suspended from

the ATR program due to her CRM deficiencies. Cape Air’s

allegation is supported by substantial evidence, including the

testimony of Nicholson’s co-pilots and supervisors, their letters to the disciplinary panel, and the original and revised

Action Forms. Cape Air has thus met its burden of production

at step two.

III. Nicholson Produced Sufficient Evidence of a Discriminatory Motive To Survive Summary Judgment

[9] At the third step of the McDonnell Douglas scheme,

“the plaintiff must show that the articulated reason is pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly

by showing that the employer’s proffered explanation is

unworthy of credence.” Id. at 1124 (internal quotation marks

omitted). To avoid summary judgment at this step, however,

the plaintiff must only demonstrate that there is a genuine dispute of material fact regarding pretext. The amount of evidence required to do so is minimal. “We have held that very

little evidence is necessary to raise a genuine issue of fact

regarding an employer’s motive; any indication of discriminatory motive may suffice to raise a question that can only be

resolved by a fact-finder. When the evidence, direct or circumstantial, consists of more than the McDonnell Douglas

presumption, a factual question will almost always exist with

respect to any claim of a nondiscriminatory reason.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004)

NICHOLSON v. HYANNIS AIR SERVICE 12663
(alterations omitted) (citations and internal quotation marks

omitted).

[10] Nicholson has met her minimal burden at step three.

First, irregularities in Nicholson’s disciplinary proceedings

provide some evidence that Cape Air had a discriminatory

motive. The disciplinary panel conducted a cursory investigation, and Nicholson introduced evidence that Cape Air

actively procured letters complaining about Nicholson from

other pilots. According to one pilot, Price demanded that he

prepare a derogatory letter about Nicholson.4 In her affidavit,

Nicholson also notes various departures by Cape Air from the

procedures established in its employee handbook. However,

Nicholson failed to introduce that handbook into evidence.

Fed. R. Civ. P. 56(e)(1) requires the attachment of any document “referred to in an affidavit.” “Lacking [the required]

documentation,” Nicholson’s claims regarding the employee

handbook are “nothing more than an . . . argument lacking

evidentiary support.” School Dist. No. 1J, Multnomah County,

Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).5

4Cape Air, while noting at oral argument before us that this statement

was hearsay, did not move in the district court to strike the statement from

Nicholson’s declaration, and thus waived any hearsay objection. 

5The employee handbook was attached to a proposed sur-reply, but the

district court denied Nicholson’s motion to file that sur-reply. Nicholson

argues that the employee handbook is nonetheless part of the record on

appeal and can be considered by this court. According to Nicholson, the

handbook was “filed” with the district court within the meaning of Fed.

R. App. P. 10(a)(1), which defines the record on appeal, because a clerk’s

stamp on the front of the proposed sur-reply states that it was “filed” on

Feb. 22, 2008. Nicholson’s argument, while inventive, fails. We cannot

accept any argument that would permit the clerk’s office to override a

judge’s decision as to whether a particular document may be “filed” with

the court. Nicholson’s proposed sur-reply was, instead, merely “lodged”

with the district court. See Barcamerica Int’l. v. Tyfield Imps., Inc., 289

F.3d 589, 594-95 (9th Cir. 2002) (declining to consider excerpts of deposition transcripts lodged with district court but not filed in support of or in

opposition to a motion); Levald, Inc. v. City of Palm Desert, 998 F.2d 680,

684 (9th Cir. 1993) (striking factual allegations based on amended com12664 NICHOLSON v. HYANNIS AIR SERVICE
[11] Cape Air’s knowledge, however, of the rumors about

Nicholson and Price and of her prior relationship with White

does provide additional evidence that her employer, in Nicholson’s words, “wanted to remove an object of sexual competition, and therefore, discord, from the pilot group on Guam.”

This inference is bolstered in particular by the fact that the

Action Form initially prohibited Nicholson from flying

Cessna 402s in the Pacific region, including Guam, notwithstanding her acknowledged ability to fly such single-pilot

planes safely. It is also supported by White’s alleged statement, a week after Nicholson was terminated, that she “would

still have [her] job if [they] were still together,” as well as by

Cape Air’s silence upon being informed of White’s comment.

[12] Finally, the evidence introduced by Nicholson to

establish her prima facie case also provides evidence of pretext. “[A] disparate treatment plaintiff can survive summary

judgment without producing any evidence of discrimination

beyond that constituting his prima facie case, if that evidence

raises a genuine issue of material fact regarding the truth of

the employer’s proffered reasons.” Chuang, 225 F.3d at 1127

(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 147-48 (2000). In this case, Cape Air’s failure to treat

Nicholson in the same manner that it treated similarly deficient male pilots provides some evidence that Cape Air disciplined her because of her sex and not because of her alleged

CRM deficiencies. So, too, do the sex-related remarks, such

as the complaint that Nicholson had a “machismo” attitude;

the captain’s concern about flying with her because of a prior

sexual relationship; and the removal of her from a flight by

that same captain, who expressed concern about whether his

plaint “lodged with, but not accepted for filing by, the district court”).

Because the documents attached to the sur-reply were not “filed” with the

district court, and Nicholson does not appeal the rejection of her sur-reply

by the district court, the documents are not part of the record on appeal

and are not before this court. 

NICHOLSON v. HYANNIS AIR SERVICE 12665
work problems with her were related to that earlier relationship.

[13] In employment discrimination cases brought under the

McDonnell Douglas framework, “[w]e require very little evidence to survive summary judgment precisely because the

ultimate question is one that can only be resolved through a

searching inquiry — one that is most appropriately conducted

by the factfinder, upon a full record.” Sischo-Nownejad v.

Merced Comty College Dist., 934 F.2d 1104, 1111 (9th Cir.

1991) (internal quotation marks omitted). Because Nicholson

introduced the minimal evidence necessary to raise a genuine

issue of material fact as to whether Cape Air suspended her

because of her sex, the district court’s grant of summary judgment to Cape Air was improper.

IV. Cape Air’s Request for Sanctions

[14] Nicholson’s arguments on appeal rely in part upon evidence that was not filed with the district court — deposition

excerpts that were attached to Nicholson’s proposed sur-reply.

Nicholson did not appeal the district court’s rejection of the

proposed sur-reply. However, she nonetheless included five

pages from these deposition excerpts in her Excerpts of

Record. Because Nicholson included in her excerpts of record

deposition excerpts that were not filed with the district court,

she violated Fed. R. App. P. 10(a)(1), which provides that the

record on appeal consists of “the original papers and exhibits

filed in the district court.” Cape Air asks that we sanction

Nicholson for this violation by striking portions of her argument and her Excerpts of Record, and by imposing monetary

sanctions.

[15] As required by Rule 10(a)(1), we disregard all arguments that depend upon the improperly included material and

strike that material from the Excerpts of Record. However,

monetary sanctions are not warranted. Nicholson included

only five improper pages, and the arguments based on those

12666 NICHOLSON v. HYANNIS AIR SERVICE
pages are peripheral to the primary issues on appeal. The consequences of Nicholson’s violation are too minimal to justify

monetary sanctions.

Cape Air claims that Lowry v. Barnhart, 329 F.3d 1019

(9th Cir. 2003), establishes that violations of Rule 10 are particularly serious, and that monetary sanctions, including reasonable attorneys fees for preparing a brief including a

discussion of the improper information, should generally be

awarded for violations of Rule 10. However, Lowry involved

a much more serious violation of that Rule: The offending

party in Lowry included in its supplemental excerpts of record

a new document that did not exist at the time of the district

court’s decision or at the time the appellant filed his opening

brief. Id. at 1024. Furthermore, the offending party in Lowry

acknowledged that its conduct was indefensible. Id. at 1025.

In determining that sanctions were proper under the circumstances of that case, we specifically noted that monetary sanctions have been found to be improper where the offending

party “contended that the documents were, in fact, part of the

record” and where “the ‘issue [was] one of first impression.’ ”

Id. at 1026 n.7 (citing Barcamerica, 289 F.3d at 593-95; and

Tonry v. Security Experts, Inc., 20 F.3d 967, 973 (9th Cir.

1994)). Both conditions exist here: As noted above, supra

note 5, Nicholson contends that the material is properly a part

of the record, and no prior Ninth Circuit case has specifically

held that a rejected sur-reply is not “filed” for purposes of

Rule 10(a)(1).

Accordingly, we will not award monetary sanctions to

Cape Air for Nicholson’s violation of Rule 10(a).

CONCLUSION

[16] Because the evidence, when taken in the light most

favorable to Nicholson, is sufficient to raise a genuine issue

of material fact as to whether she was qualified and whether

similarly situated male pilots were treated more favorably, the

NICHOLSON v. HYANNIS AIR SERVICE 12667
district court erred in granting summary judgment on the

ground that Nicholson could not establish a prima facie case

of discrimination. Furthermore, because Nicholson introduced

the minimal evidence required to raise a factual issue regarding whether Cape Air’s actions were taken because of her sex,

the district court’s grant of summary judgment to Cape Air

was improper. We reverse the district court’s decision and

remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

12668 NICHOLSON v. HYANNIS AIR SERVICE