                 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
12650         NICHOLSON v. HYANNIS AIR SERVICE




                         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 air-
plane on Cape Air’s Guam and Micronesia routes. The district
court granted Cape Air’s motion for summary judgment, find-
ing that Nicholson could not establish a prima facie case of
discrimination, nor that Cape Air’s explanation for its disci-
plinary 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. Plaintiff-
               NICHOLSON v. HYANNIS AIR SERVICE           12651
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 air-
plane, 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 Continen-
tal 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 trav-
eled 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.
12652          NICHOLSON v. HYANNIS AIR SERVICE
   During the training in Houston, two male pilots failed their
check rides in the simulator. They were retrained to profi-
ciency 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 defi-
ciencies 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 permit-
ted Nicholson to fly the plane back to Guam, then removed
her from the plane before their next flight. White acknowl-
edged at his deposition that he had concerns about flying with
Nicholson because of their prior sexual relationship, and fur-
ther admitted that, in deciding whether to remove Nicholson
from the flight, he had been unsure whether his negative inter-
actions 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
               NICHOLSON v. HYANNIS AIR SERVICE            12653
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 Nichol-
son 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 effec-
tively 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
12654          NICHOLSON v. HYANNIS AIR SERVICE
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 deficien-
cies. 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 ser-
vice.

  In support of her allegations, Nicholson asserts that she
does not suffer from any CRM deficiencies and that, even if
                NICHOLSON v. HYANNIS AIR SERVICE                 12655
her skills were deficient, she was removed from the program
without being provided the same retraining opportunity pro-
vided to the male pilots who failed portions of their training.
Nicholson also alleges that the company’s disciplinary proce-
dures 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 disci-
pline a week later. Finally, Nicholson notes that White admit-
ted 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, Nichol-
son 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, find-
ing 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 favor-
ably. 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 evi-
dence 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
  1
   The 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
12656             NICHOLSON v. HYANNIS AIR SERVICE
                               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 dispa-
rate 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 quali-
fied for the position; (3) he was subject to an adverse employ-
ment 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 Nich-
olson 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 deter-
mine 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 gen-
uine 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).
               NICHOLSON v. HYANNIS AIR SERVICE            12657
ATR 42s. Nicholson claims that her CRM skills were suffi-
cient, 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 can-
not 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 “quali-
fied” 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 institu-
tion, and the publication of scholarly materials.” Id. As we
explained, “subjective criteria, along with any supporting evi-
dence, 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 McDon-
nell 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.
12658            NICHOLSON v. HYANNIS AIR SERVICE
   [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 burden-
shifting scheme collapses into a single inquiry into the truth
of a subjective claim regarding Nicholson’s alleged inadequa-
cies. 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 qualifica-
tion 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 cir-
cuit makes it clear that only objective criteria can be used when evaluating
whether a plaintiff has made out a prima facie case.”).
               NICHOLSON v. HYANNIS AIR SERVICE            12659
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 Nichol-
son 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 coordi-
nation 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.
12660              NICHOLSON v. HYANNIS AIR SERVICE
  B.        Nicholson Has Produced Evidence that Similarly Situ-
            ated 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 immedi-
ately 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 follow-
ing 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
  3
   Cape Air does not contend that the male pilots were not similarly situ-
ated 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.
               NICHOLSON v. HYANNIS AIR SERVICE            12661
because they did not “engage[ ] in comparable conduct, spe-
cifically, deficient and unsafe CRM skills,” and because
“[o]ne can be retrained and refine their piloting skills; how-
ever, 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 defi-
ciencies 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 qualifica-
tions.”

   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 particu-
lar 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. Fur-
thermore, deficiencies in both CRM skills and technical pilot-
ing 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
12662          NICHOLSON v. HYANNIS AIR SERVICE
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 employ-
ees, 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 Nich-
olson was treated less favorably than similarly situated male
pilots to preclude summary judgment at McDonnell Doug-
las’s first step.
               NICHOLSON v. HYANNIS AIR SERVICE           12663
II.    Cape Air Articulated a Legitimate, Nondiscrimina-
       tory 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 let-
ters 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 Dis-
       criminatory Motive To Survive Summary Judgment

    [9] At the third step of the McDonnell Douglas scheme,
“the plaintiff must show that the articulated reason is pretex-
tual either directly by persuading the court that a discrimina-
tory 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 dis-
pute of material fact regarding pretext. The amount of evi-
dence 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 discrimina-
tory motive may suffice to raise a question that can only be
resolved by a fact-finder. When the evidence, direct or cir-
cumstantial, consists of more than the McDonnell Douglas
presumption, a factual question will almost always exist with
respect to any claim of a nondiscriminatory reason.” McGin-
est v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004)
12664             NICHOLSON v. HYANNIS AIR SERVICE
(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 investiga-
tion, 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 docu-
ment “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
  4
     Cape 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.
   5
     The 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 deposi-
tion 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 com-
                 NICHOLSON v. HYANNIS AIR SERVICE                    12665
    [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 Nich-
olson’s words, “wanted to remove an object of sexual compe-
tition, 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, notwith-
standing her acknowledged ability to fly such single-pilot
planes safely. It is also supported by White’s alleged state-
ment, 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 pre-
text. “[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 defi-
cient male pilots provides some evidence that Cape Air disci-
plined 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.
12666          NICHOLSON v. HYANNIS AIR SERVICE
work problems with her were related to that earlier relation-
ship.

   [13] In employment discrimination cases brought under the
McDonnell Douglas framework, “[w]e require very little evi-
dence 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 judg-
ment to Cape Air was improper.

IV.     Cape Air’s Request for Sanctions

   [14] Nicholson’s arguments on appeal rely in part upon evi-
dence 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 argu-
ment and her Excerpts of Record, and by imposing monetary
sanctions.

   [15] As required by Rule 10(a)(1), we disregard all argu-
ments 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
               NICHOLSON v. HYANNIS AIR SERVICE           12667
pages are peripheral to the primary issues on appeal. The con-
sequences 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 par-
ticularly serious, and that monetary sanctions, including rea-
sonable 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 circum-
stances of that case, we specifically noted that monetary sanc-
tions 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
12668         NICHOLSON v. HYANNIS AIR SERVICE
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 regard-
ing 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.
