Tiffany Anne Nicholson vs. Hyannis Air Service Inc., DBA Cape Air
Filed 9/9/09
Court of Appeals Ninth Circuit
Cite as 1:06-cv-00027

Sex Discrimination Charge against Cape Air Remanded Back to Court

Following a grant of summary judgment in favor of Hyannis Air Service Inc. or Cape Air of a discrimination charge filed by its former pilot Tiffany Anne Nicholson, the Court of Appeals reversed the trial court’s decision as it failed to appreciate her prima facie case.

Tiffany Anne Nicholson was hired as a Cape Air pilot in 2000 and until 2004, she piloted a Cessna 402 aircraft, of which she was the Captain and sole pilot. In 2004, she was selected to launch Cape Air’s new service for Continental Airlines. She was the only woman in the group.

This group however, 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 whom is being linked to Nicholson for sexual relations.

These new flights will be using ATR 42 airplanes rather than Cessna 402s. The ATR 42 has a two-pilot cockpit and requires both a captain and a first officer. The four most senior pilots were selected to serve as captain and though Nicholson was qualified to serve as a captain, she flew as a first officer because she was one of the more junior pilots.

In the training consisting of ground school in Hyannis and simulator training at Flight Safety, an independent company in Houston, Texas which included instruction in the operation of the ATR 42 and crew resource management (“CRM”), Nicholson passed all the tests and check rides and was even rated as excellent in her communication and cooperation skills. There were however, two male pilots who were retrained after they failed their check rides in the simulator.

Shortly after the pilots began to fly the new routes, Nicholson’s supervisors and the other pilots reported that she exhibited problems with her communication and cooperation skills. Her CRM skills were reported to be inadequate and 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.

Nicholson was removed from her flights by White and Price. The Action Form prepared by the disciplinary panel prohibited Nicholson from flying ATR 42s based on reports by the pilots and Price. Instead, she was permitted to fly only (single-pilot) Cessna 402s.

The Action form was revised one week later which was appealed by Nicholson and because she failed to bid on 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.

Hence, Nicholson filed an action against Cape Air after receiving a right to sue letter from the EEOC, 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. She claimed that Cape Air’s actual purpose in disciplining her was to remove an object of sexual competition from its Guam service.

The Court of Appeals, in reviewing Nicholson’s appealed complaint found that:

• Under McDonnell Douglas, which Nicholson relied on to build a prima facie case of discrimination, she managed to show evidence showing 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. The first and third part is clearly satisfied.


• On the issue whether Nicholson was qualified for the position, CRM skills are a subjective qualification that cannot be considered in evaluating a plaintiff ’s qualifications.
  
  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 claimed only two months later that CRM deficiencies made her unsafe to fly. It found that Nicholson was clearly qualified.


• On the issue of whether similarly situated individuals were treated more favorably, 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, the male pilots who were retrained and Nicholson were similarly situated. Nicholson did not receive the same opportunity for additional training as the male pilots.

The CA held that 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.