Appeal from the United States District Court for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding. D.C. No. 1:06-cv-00027.
The opinion of the court was delivered by: Reinhardt, Circuit Judge
Argued and Submitted February 11, 2009 -- Honolulu, Hawaii
Before: Stephen Reinhardt, Melvin Brunetti, and Sidney R. Thomas, Circuit Judges.
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.
Defendant-Appellee Hyannis Air Service, Inc., which does business as Cape Air (hereinafter "Cape Air"), is a small regional airline based in Hyannis, Massachusetts. Plaintiff- 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.
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 in-flight. 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 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 jump-seat. 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, ego-driven;" 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 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 ...