Tiffany Anne Nicholson alleged 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. ?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.?? Plaintiff appealed the grant of summary judgment to the employer.? The Ninth Circuit reversed. Plaintiff ?was ?one ?of ?eight ?pilots? selected? to launch Cape Air?s new service, providing flights between Guam and the neighboring Micronesian islands. ?She was the only woman selected. ?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 Russell Price.? ?Price and Nicholson had been the subject of rumors that traveled? throughout? Cape? Air,? suggesting? that they were sexually involved.
All eight pilots received additional training in the new aircraft, which included instruction in both the operation of the ATR 42 and crew resource management (?CRM?).?? ?Plaintiff was rated excellent, ?while ?two ?male ?pilots? failed ?their check rides in the simulator. They were retrained to?? proficiency?? and?? passed?? on?? their?? second attempt.
After the flights commenced, Plaintiff?s supervisors reported that her CRM skills were inadequate.??? ?Before an opportunity for observation, Plaintiff was removed from the cockpit by her former boyfriend, White, who stated that the tension in the cockpit made it unsafe to fly.? ?White acknowledged at his deposition that he had concerns about flying with Nicholson because of their prior sexual relationship,? and ?further ?admitted ?that ?he ?had been? unsure? whether? his? negative? interactions with Nicholson were related to their prior relationship.??? ?Thereafter, Plaintiff?s flight interactions were observed by Price, who was rumored to have a sexual relationship with Plaintiff.? ?He rated her interactions deficient. Plaintiff then received a disciplinary action form which asserted her inability to communicate and lack of cooperation.?? As a result, Plaintiff was only allowed to fly single pilot planes, with her status ?to ?fly ?ATR ?42s ?to ?be ?reviewed ?in ?six months.?? Plaintiff apparently did not accept this discipline, and continued to 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.
Plaintiff alleged, inter alia, 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; she was not provided the same retraining opportunity provided to the male pilots who failed portions of their training; that White admitted that the prior sexual relationship affected his working relationship with her; Price was aware of his rumored relationship with Plaintiff shortly before the incidents leading to her discipline; and that? White? suggested? to ?her? that? nothing? would have happened to her had she not rebuffed his efforts to rekindle their relationship.
The Ninth Circuit applied the familiar McDonnell Douglas shifting burden model.?? It ruled that her alleged lack of CRM skills was a subjective criterion, and therefore could not be used as part of the prima facie case. ?In ruling that she was treated differently than similar situated pilots who were given retraining, the Court ruled that ?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 Ninth Circuit described the third step of the shifting burden model as follows: ?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.? 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).
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).
The Court found that the minimal evidence required had been produced by Plaintiff and reversed summary judgment.
Nicholson v. Hyannis Air Service, Inc., — F.3d — (9th Cir. Sep. 8, 2009) (Reinhardt, Brunetti, Thomas).