facts would be inadmissible. Fed. R. Civ. P. 56(c)(4).

4. Flynn’s claim of employment discrimination in violation of Title VII

of the Civil Rights Act of 1964 fails as a matter of law. Assuming (without

3 We construe Flynn’s argument under Federal Rule of Civil Procedure 56(f) as one under Rule 56(d). See Fed. R. Civ. P. 56(d) advisory comm. note to the 2010 amendment (noting that Rule 56(d) was revised to include “without substantial change the provisions of former subdivision (f)”).

3 deciding) that the Accelerate Program falls within the protections of Title VII,4

Flynn has not made out a prima facie case of discrimination either by using the

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

or by producing “direct or circumstantial evidence demonstrating that a

discriminatory reason more likely than not motivated” Sephora. Opara v. Yellen,

57 F.4th 709, 721–22 (9th Cir. 2023) (footnote and citation omitted). There is no

evidence that Flynn’s company, which provides a “Supply Chain solution” using

Software as a Service, was qualified for the “Skin” merchandise category of the

2021 Accelerate Program, to which she indisputably applied. See Dominguez-

Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005) (explaining that,

to make out a prima facie case for a failure-to-hire claim, a plaintiff must show,

among other things, that she “was qualified for the position she was denied” and

was “rejected despite her qualifications”).

Additionally, Sephora produced evidence that Flynn’s failure to mention a

qualifying merchandise product in her 2021 application was the reason it rejected

her application. Neither Sephora’s public statements regarding how the Accelerate

Program served its diversity objectives nor Flynn’s communications with Sephora

4 Cf. Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 1999) (noting that “there must be some connection with an employment relationship for Title VII protections to apply” (quoting Lutcher v. Musicians Union Loc. 47, 633 F.2d 880, 883 (9th Cir. 1980))).

4 employees in 2019 and 2020 create a genuine issue of fact regarding its reason for

rejecting Flynn’s application to the 2021 Accelerate Program’s Skin category.

5. Similarly, Flynn’s claim for racial discrimination in violation of 42

U.S.C. § 1981 fails because there is no evidence from which a reasonable

factfinder could conclude that her race was a but-for cause of Sephora’s decision to

reject her application. See Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned

Media, 589 U.S. 327, 333 (2020).

6. Finally, Flynn’s argument that she was “clearly prejudiced by

ineffective and incompetent representation” is unavailing because ineffective

assistance of counsel is not a cognizable basis for appeal in a civil case.5 See

Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985).

AFFIRMED.

5 In its response brief, Sephora asks us to “hold that summary judgment in [its] favor . . . is appropriate” on Flynn’s state law claim. The district court denied Sephora’s request for summary judgment on that claim and, instead, declined to exercise supplemental jurisdiction and dismissed the claim. Because we treat the dismissal of the state law claim as a dismissal without prejudice, cf. Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994), granting summary judgment on the claim would diminish Flynn’s rights under the judgment. Thus, Sephora was required to file a cross-appeal. See El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999). Because it did not do so, we do not reach this issue. See Turpen v. City of Corvallis, 26 F.3d 978, 980 (9th Cir. 1994).

5