               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0018n.06

                                          No. 18-1127

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
ARMANDO NIEVES,                                      )                      Jan 14, 2019
                                                     )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                          )
                                                     )     ON APPEAL FROM THE UNITED
v.                                                   )     STATES DISTRICT COURT FOR
                                                     )     THE WESTERN DISTRICT OF
ENVOY AIR, INC.,                                     )     MICHIGAN
                                                     )
       Defendant-Appellee.                           )


       BEFORE: SILER and KETHLEDGE, Circuit Judges; OLIVER, District Judge.*

       OLIVER, District Judge. Armando Nieves (“Nieves”) sued Envoy Air Incorporated

(“Envoy”) for wrongful termination. Nieves claims that Envoy violated: (1) the Family and

Medical Leave Act (“FMLA”) by terminating him in retaliation for using medical leave; (2) the

Michigan Persons with Disabilities Civil Rights Act by terminating him because of his disability;

and (3) the Michigan Elliot-Larsen Civil Rights Act by terminating him based on his race and

ethnicity. The district court granted Envoy’s motion for summary judgment on all counts. We

AFFIRM.

                                                I.

       Nieves, a Hispanic-American, worked as a gate agent for Envoy Air for 19 years. Envoy,

formerly known as American Eagle, is an affiliate of American Airlines (“American”). In 2008,

Nieves and his wife, Sahara Vargas (“Vargas”) (also an Envoy employee), were transferred by the


       *
         The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 18-1127, Armando Nieves v. Envoy Air, Inc.


airline to Grand Rapids, Michigan to work at the Gerald R. Ford Airport (“GRR”). Nieves’s

responsibilities included working at the ticketing counter, customer service desk, loading luggage,

and directing planes on the jet way.

       In September 2014, Envoy transferred a new General Manager, Mitch Felkey (“Felkey”),

to GRR. Shortly after Felkey joined, a few conflicts arose between Nieves and Felkey. For

example, on one occasion, company training files went missing and Felkey blamed Nieves. When

Felkey became aware that the files were missing through no fault of Nieves, he did not offer Nieves

an apology. On another occasion, when Nieves was absent from his assigned duty station, Felkey

threatened Nieves with termination unless he procured statements from coworkers that could

corroborate his explanation that he was absent because he was assisting a customer.

A.     American initiates a travel audit.

       In the Spring of 2015, American commenced a travel audit of its employees and the

employees of its affiliated airlines. The purpose for the audit was to look for travel privilege abuse

by employees. According to American’s policy, if an employee permits an ineligible individual to

use travel benefits, that employee is subject to termination. The policy was disseminated to all of

Envoy’s employees. Although American was involved in the travel audit process and was initially

a named Defendant, the parties stipulated to the dismissal of American from the case because

American did not directly employ Nieves.

       American’s Employee Travel Privilege Department (“TPD”) is responsible for managing

all employee travel privilege programs, including audits of employees’ use of such privileges. The

TPD administers two types of audits—specific and random. A specific audit singles out individual

employees, usually at the request of the employee’s supervisor. A random audit occurs two to four

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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


times per year, includes a group of employees, and is initiated by the TPD or American’s corporate

security. The department sends notice letters to the audited employees and coordinates the

investigation with a human resources representative employed by American and its affiliated

airlines.

        In April 2015, the TPD conducted a random audit. In conjunction with this audit, Envoy

claims that it mailed Nieves a letter informing him that he was selected for the audit; however,

Nieves claims he never received such a letter. Nonetheless, Nieves received a second notification

letter dated June 12, 2015. The letter informed Nieves that, as part of the random audit, he had

until June 23, 2015, to send proof of eligibility for the travelers he had listed on his travel privileges

log. The letter also included a list of acceptable forms of documentation that he could submit to

prove the eligibility of the individuals he had listed. Nieves responded by faxing documentation

related only to the family members that were active travelers at that time—his stepdaughter and

his wife, Vargas. However, throughout Nieves’s employment with Envoy, he listed several

individuals on his travel log. Envoy maintains that Nieves was to submit documentation for each

individual listed on his travel log during his tenure at the airline.

        Nieves and Vargas have seven children—all of whom were listed on Nieves’s travel log.

Some of his children were listed multiple times because their status changed from “child” to

“student.” At some point, Nieves also listed two other individuals as students or children. The first,

Arnaldo Melo (“Melo”), was the son of a close friend of Vargas’s. Melo’s mother, who was living

in the Dominican Republic at the time, wrote Vargas explaining that she could no longer take care

of Melo. Nieves and Vargas agreed to move Melo to the United States and take him into their

home. The second was Vargas’s half-brother, Denys Martinez (“Martinez”). Martinez was staying

with Nieves’s family while he attended college.



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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


       Further, Nieves listed his mother’s long-time companion, Daniel Cesar (“Cesar”), and

classified him as his “Father/Step Father.” Although Cesar and Nieves’s mother had a long-term

relationship, they were not married and did not have a recognized common-law marriage.1 In all,

Nieves’s travel log, over time, contained a total of 24 names—Nieves, Vargas, their seven children

(including duplicate entries), Vargas’s mother, Melo, Martinez, Nieves’s mother, and his mother’s

boyfriend. Except for Martinez, each of Nieves’s listed members used travel benefits at least once

while he was employed at Envoy.

       After Nieves faxed the documents showing eligibility for his wife and stepdaughter, he did

not hear from the TPD for a significant period of time. However, an email exchange initiated on

September 15, 2015, between American’s Director of Human Resources, Mike Whittle

(“Whittle”), and Envoy’s Senior Human Resources/Employee Relations Specialist, Nina Ingalls

(“Ingalls”), indicates that the audit had not come to a close. Rather, Nieves’s audit was added to a

stack of audits that required further investigation.

       It was not until September 25, 2015, and after Whittle sent out emails requesting updates

on 15 of Envoy’s outstanding audits, did Nieves’s travel audit get elevated as a priority. Still, the

auditing process moved at a slow pace. On January 21, 2016, Ingalls received another email from

her superior asking for an update on the outstanding 2015 audits, including Nieves’s, and requested

that they be closed as soon as possible.

B.     The audit investigation is delayed.

       On January 26, 2016, Ingalls emailed Felkey to coordinate her interview with Nieves. She

indicated that she noticed that Nieves had been out sick since January 4, 2016, and asked Felkey


       1
         Nieves claims that, during the course of this litigation, a previous supervisor gave him
approval to add Cesar to his travel benefits list. However, nothing in the record indicates that he
raised this argument during the audit investigation.


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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


whether he thought Nieves had been abusing his sick leave or had “some type of serious medical

problem going on?” (R.44-6, PageID.204.) Ingalls was unaware at the time that Nieves had been

hospitalized the first week of January for stage three kidney failure. Felkey informed Ingalls that

Nieves was in the hospital and that his condition was serious. Ingalls instructed Felkey on how to

get Nieves on sick leave under the FMLA. However, Nieves’s FMLA paperwork had already been

completed on January 12, 2016, while he was in the hospital.

C.      Audit investigation resumes.

        After several weeks of recovery, Nieves returned to work on February 19, 2016, clearing

the way for Ingalls to complete her investigation. On March 9, 2016, Ingalls conducted a telephone

interview with Nieves and Felkey present. Nieves was not informed ahead of time of the interview,

nonetheless he proceeded to answer Ingalls’s questions regarding his travel privileges log.

        Ingalls declared that she questioned Nieves about each of the entries on his travel log during

the interview, including his mother’s boyfriend, Cesar. Nieves claims that Ingalls never asked him

about Cesar. However, Ingalls’s interview notes, which became a part of her investigation

memorandum that she submitted to American’s human resources department, corroborate her

account. They indicate that Nieves disclosed to her that Cesar and his mother had been together

for over twenty years but had never legally married. After the interview, Nieves was instructed

that he had until March 18, 2016—nine days—to provide documentation for each of the

individuals listed on his travel log.

        The following week, Nieves provided letters from the mothers of Martinez and Melo

indicating that Nieves’s family had taken care of their children in the past. Envoy maintains that

the letters did not show that he had court-approved guardianship over the children. Further, Felkey




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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


informed Nieves that the letters were not the kind of documentation that would prove he had legal

guardianship; however, he forwarded the letters to Ingalls anyway.

       After receiving the letters, Ingalls prepared a summary of her investigation and sent it to

Barbara Starcer (“Starcer”), Envoy’s Senior Human Resource Specialist, and Mariluz Duque

(“Duque”) (Starcer’s supervisor). Ingalls informed them that Nieves had not provided proper

documentation for Martinez and Melo, and no documentation for Carlos Martinez (Nieves’s step-

son), Daniel Cesar, and Felipa Trejo (Nieves’s mother-in-law). In her correspondence, she noted

that several individuals did not meet the criteria to be eligible travelers and inquired whether she

“should even bother to ask for the proof of parent-in-law relationship” or “just move on in

convincing the [general manager] that this is a violation of policy?” (R. 44-9.) Duque responded

that when ineligible travelers use an employee’s travel privilege, “termination is the outcome time

and time again.” (Id.) Starcer responded that she agreed and was on board with terminating Nieves.

According to Envoy, this was consistent with a document maintained by American, the Employee

Travel Incidents Matrix (“Matrix”), which outlines the recommended penalty for various offense

committed by airline employees. (R. 45-20.) The recommended penalty for ineligible travelers,

according to the Matrix, is termination. Therefore, Ingalls was instructed to tell Felkey that Nieves

needed to be let go.

D.     Termination of Nieves.

       After conferring with her fellow human resources personnel, Ingalls forwarded a packet to

Felkey that contained a summary memo, her interview notes, the documentation that Nieves

provided, and Nieves’s travel privilege log and usage history. Nothing in the summary contained

information regarding Nieves’s medical leave. She then instructed Felkey to begin the “off-




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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


boarding” process for Nieves. In addition, on March 24, 2016, Ingalls sent an email to American’s

Travel Coordinator, Eileen Rudnick, requesting that she freeze Nieves’s travel privileges.

       According to Nieves, it was around this stage of the investigation that his wife, Vargas,

told Felkey, without offering any names, that other employees were abusing travel privileges by

selling “buddy passes” for profit. However, Felkey and Ingalls maintain that they did not see how

this allegation would have helped Nieves, considering the review process was out of Felkey’s

hands at that time and the information did not exculpate Nieves.

       The decision to terminate was reviewed by a three-person committee: Envoy’s vice

presidents of human resources, finance, and legal departments. The committee approved the

decision to terminate Nieves. Ingalls drafted a termination letter that stated the following reasons

for Nieves’s termination: misrepresentation of facts, misrepresentation in obtaining employee

benefits or privileges, and abuse of travel privileges. The letter explained that Nieves had violated

Envoy Rules and Regulations #16, 34, and 37, which state:

       Rule #16: Misrepresentation of facts or falsification of records is prohibited.
       Rule #34: Dishonesty of any kind in relation to the Company, such as . . .
       misrepresentation in obtaining employee benefits or privileges will be grounds for
       dismissal . . . .
       Rule #37: Abuse of travel privileges will be grounds for dismissal.

She sent the letter to Felkey on March 30, 2016. Felkey approved, signed, and delivered the letter

to Nieves. (R. 44-13.)

        Nieves appealed the termination to Felkey’s supervisor, Greg Ricketts, who worked out

of Envoy’s Headquarters in Texas. In his appeal, Nieves admitted that he “made a mistake when

listing [Daniel Cesar]” as his father, and that he was not given enough time to prove his case in

regard to Melo and Martinez since the documents needed were only obtainable in the Dominican




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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


Republic. (R. 44-7, PageID.432.) Relying on Nieves’s admission about Cesar’s ineligibility,

Ricketts upheld the committee’s termination decision.

       Nieves sued Envoy for wrongful termination on the three counts listed supra. The district

court granted Envoy’s motion for summary judgment on all three claims. Nieves now appeals.

                                                 II.

       We review the district court’s grant of summary judgment de novo. Roell v. Hamilton Cty.,

Ohio/Hamilton Cty. Bd. of Cty. Commissioners, 870 F.3d 471, 479 (6th Cir. 2017), reh’g denied

(Sept. 21, 2017). Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, “show that there is no

genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of

law.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 281 (6th Cir. 2012). Here, Envoy

bears the initial burden of showing that there is no genuine dispute as to any material fact. Id. If

Envoy meets its burden, then Nieves must present sufficient evidence from which a reasonable

jury could find for him. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

       Further, “[t]he mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Seeger, 681 F.3d at 281 (citation omitted) (emphasis

in original). In making this determination, the court must view the evidence in the light most

favorable to the non-moving party. Id.

                                                III.

A.     Nieves’s FMLA leave claim.

       The FMLA entitles employees to twelve weeks of leave, annually, for “serious health

condition[s] that makes the employee unable to perform the functions of [his] position.” Arban v.



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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


West Publ’g Corp., 345 F.3d 390, 400 (6th Cir. 2003) (quoting 29 U.S.C. § 2612(a)(1)(D)).

Employees may recover for violations of FMLA under two distinct theories: “(1) the entitlement

or interference theory arising from 29 U.S.C. § 2615(a)(1); and (2) the retaliation or discrimination

theory arising from 29 U.S.C. § 2615(a)(2).” Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244

(6th Cir. 2004) (emphasis in original). Nieves brings his claim under the retaliation theory.

       In order to state a prima facie case under the FMLA based on a theory of retaliation, a

plaintiff must demonstrate that: (1) they are engaging in an activity protected by the FMLA; (2) the

employer knew that they were exercising their rights under the FMLA; (3) after learning of the

employee’s exercise of FMLA rights, the employer took an employment action adverse to them;

and (4) a casual connection exists between the protected FMLA activity and the adverse

employment action. Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006) (citing

Arban, 345 F.3d at 404). Under this theory, “[w]hat makes the employment decision unlawful . . .

is the motive of the employer—namely, that the action was taken because the employee exercised,

or complained about the denial of, FMLA-protected rights.” Edgar v. JAC Products, Inc., 443 F.3d

501, 512 (6th Cir. 2006) (emphasis in original).

       When a plaintiff relies on indirect evidence to prove causation, such as proximity in time

between the FMLA leave and the adverse employment action, the court must employ the three-

step process explained in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to analyze

the FMLA claim. Skrjanc v. Great Lake Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). First,

the plaintiff must demonstrate a prima facie case of retaliation. Id. Next, the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.

Id. Finally, if the employer can offer a legitimate, nondiscriminatory reason for the adverse




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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


employment action, the burden then shifts back to the plaintiff to produce evidence that the alleged

nondiscriminatory rationale was in reality a pretext. Skrjanc, 272 F.3d at 315.

       The first three prongs of Nieves’s prima facie case are not in dispute. For this claim, Envoy

argues that Nieves failed to establish a causal connection between his FMLA leave and his

termination—the fourth element of his prima facie case. Nieves points to evidence in the record

which he maintains raise genuine issues of disputed fact regarding whether his taking FMLA leave

was causally connected to his termination.

       First, Nieves argues that Ingalls’s claim that he took “frequent FMLA leave” is probative

of causation. A review of the record shows that Ingalls merely made a note to herself that Nieves

had “frequent FMLs,” as she was trying to schedule him from an interview to finish his audit

investigation. In her deposition she states: “if I would have looked in his time and attendance and

saw a lot of FMLs or [shift swaps], then I would have noted this because we are still trying to make

sure when he would be available.” (R.46-9, PageID.832.) In this context, Ingalls’s private note to

herself that Nieves was unavailable due to FMLA leave does not show that his FMLA leave was

causally connected to his subsequent termination.

       Next, Nieves asserts that the district court failed to construe the evidence in a light most

favorable to him when it dismissed a comment Felkey made to Nieves’s wife that Nieves was ill

and should retire. However, examining the comment in the full context of the conversation

between Felkey and Vargas, it is clear that Felkey was simply responding to Vargas’s overview of

Nieves’s health condition. In her deposition, Vargas recalls the conversation as follows:

       [Question]: Okay. So tell me what you mean by that.
       [Vargas]: Well, when he came from the hospital, returned to work, Mitch pulled
       him [sic] aside and says [sic] – and asked me, “How is the old man doing?” And I
       said, “He’s not doing too good.”




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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


                His kidney doctor told him, told us that he -- his kidney was only
       functioning at 25 percent, and his heart doctor say [sic] he need to have a job where
       he don’t [sic] have that much stress and that he should not be -- require less lifting,
       repetitive lifting, that’s how he said it.
                And then – and Mitch says, “Well, since, since he’s that ill, he needs to
       retire.” And I said, “He can’t, because we have a lot of bills to pay,” and that was
       the end of the conversation.

(R. 45-6, PageID.579.)

The district court was correct in concluding that the comment was too ambiguous to support

Nieves’s claim that the decision to discharge him was related to his FMLA leave.

       Nieves also argues that his travel log was given heightened scrutiny and that this raises an

inference of a causal connection. However, nothing in the record supports that he was subject to

increased scrutiny beyond the ordinary inquiry that follows a travel audit within the company.

Envoy maintains that Nieves was flagged for an audit due to the number of entries on his travel

log. According to American and its Matrix, an employee’s abuse of travel privileges is a terminable

offense, regardless of whether the ineligible individual is currently listed or was in the past.

       Finally, Nieves claims that he experienced negative treatment by Felkey in retaliation for

using FMLA leave when Felkey commented, “if you cannot perform the duty, then we don’t need

you here.” (R. 44-13, PageID.336.) However, Nieves testified in his deposition that Felkey made

this general comment to a group of employees shortly after Felkey was transferred to GRR, and

approximately one year before Nieves took FMLA leave.

       Nieves has failed to establish a prima facie case of FMLA retaliation because he has not

shown that his exercising of FMLA leave was causally connected to his termination. Therefore,

the district court did not err in granting summary judgment to Envoy on this claim.




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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


B.     Nieves’s disabilities claim.

       Next, Nieves argues that Envoy violated the Michigan’s Persons with Disabilities Civil

Rights Act.2 Michigan courts analyze these types of claims under the McDonnell Douglas burden-

shifting framework. See Bachman v. Swan Harbour Ass’n, 653 N.W.2d 415, 437 n.26 (Mich. Ct.

App. 2002). In order to make a prima facie showing under the Act, Nieves must establish that:

(1) he is disabled as defined by the statute; (2) the disability is unrelated to his ability to perform

the duties of a particular job; and (3) he was discharged because of his disability. Chiles v. Mach.

Shop, Inc., 606 N.W.2d 398, 405 (Mich. Ct. App. 1999).

       Although the parties dispute whether Nieves’s kidney impairment falls within the statute’s

definition of disabled, this court does not need to determine this issue. Even if we assume that

Nieves is disabled as defined by the statute, as the district judge did, and that his disability is

unrelated to his ability to perform his job, he has not shown that his disability played a role in

Envoy’s decision to terminate him.

       Nieves offers the same evidence he proffered in support of his FMLA leave claim to

support his disability claim—Vargas’s testimony that Felkey pulled her aside to inquire about

Nieves’s health and Felkey’s comment that, “if you cannot perform the duty, then we don’t need

you here.” As discussed above, when the conversation between Felkey and Vargas is viewed in its

full scope, the comments about Nieves’s health condition are too ambiguous to support a claim of

disability discrimination. And again, Felkey’s statement about employees unable to perform their

duties was not made in a context suggesting that it was aimed at disabled people, or Nieves in

particular, and was made well before Nieves’s alleged disability developed. Accordingly, because

Nieves has not established a prima facie case of disability discrimination under Michigan’s


       2
           M. C. L. A. § 37.1101


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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


Persons with Disabilities Civil Rights Act, the district court did not err in granting summary

judgment in favor of Envoy on this claim.

C.     Nieves’s race discrimination claim.

       Finally, Nieves alleges race discrimination under Michigan’s Elliot-Larson Civil Rights

Act. M.C.L. § 37.2101, et seq. Again, Michigan courts evaluate these claims under the McDonnell

Douglas burden-shifting framework. See Sniecinski v. Blue Cross & Blue Shield of Michigan,

666 N.W.2d 186, 193 (Mich. 2003). To prevail on race discrimination, a plaintiff must first

establish a prima facie case by showing: (1) he was a member of a protected class, (2) he suffered

an adverse employment action, (3) he was qualified for his position, and (4) the adverse action

occurred under circumstances giving rise to an inference of discrimination. Id. at 192.

       1. Nieves’s prima facie case.

       The district court concluded that Felkey’s alleged mocking of Nieves’s accent, ignoring

claims that other employees were abusing their travel privileges, and requiring Nieves to perform

less desirable work than his Caucasian coworkers show that Nieves may have suffered from

disparate treatment. Nieves v. Envoy Air Inc., 300 F. Supp. 3d 960, 975 (W.D. Mich. 2018).

Because the district court also specifically found that there was “a genuine issue of fact as to

[Felkey’s] influence” over the decision to terminate Nieves, it concluded that Nieves established

a prima facie case for race discrimination. Id. On appeal, Envoy does not challenge this

determination. (Appellee Br. 36, n. 7.) Therefore, the only issue here is whether Nieves has set

forth evidence showing that Envoy’s legitimate, nondiscriminatory reason for terminating him was

pretextual.




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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


       2. Pretext.

       Envoy has advanced legitimate, nondiscriminatory reasons for terminating Nieves.

Consequently, Nieves must demonstrate that Envoy’s reasons for firing him were pretextual by

showing that the reasons (1) have no basis in fact; (2) did not actually motivate the action; or

(3) were insufficient to warrant the adverse action. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021

(6th Cir. 2000). Nieves must also produce sufficient evidence from which a jury could reasonably

reject Envoy’s explanation and infer that it intentionally discriminated against him. Clark v.

Walgreen Co., 424 F. App’x. 467, 474 (6th Cir. 2011).

       All of Nieves’s claims of pretext are insufficient when viewed in the light most favorable

to him. First, Envoy’s investigation revealed that Nieves improperly included his mother’s

boyfriend, Cesar, on his travel log and did not provide the necessary documentation to prove

Martinez’s and Melo’s eligibility; all grounds for termination according to the airline’s discipline

policy. Second, contrary to Nieves’s contention, Envoy presented document evidence indicating

that other employees flagged for the same audit were terminated. Third, nothing in the record

suggests that the delay in the investigation was designed to advance some ulterior motive.

Although the audit investigation was slow, nothing in the record indicates that it was closed after

Nieves provided his first set of documents in the summer of 2015. Rather, Nieves was one of

several Envoy employees whose audit files required further investigation, and were not made a

priority until Ingalls’s supervisor put pressure on her to wrap up the audits.

       Fourth, Nieves’s claim that Envoy’s revocation of his travel privileges prevented him from

obtaining proof that he was the legal guardian to Martinez and Melo is not evidence of pretext

under the circumstances herein. Nothing suggests that Ingalls deviated from company policy by

restricting Nieves’s travel privileges while he was under investigation. The fact that he was unable



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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


use his travel privileges does not demonstrate that he could not obtain the documents some other

way, including having Vargas, who had her own travel privileges, obtain the documents. In any

event, this issue is of no consequence, in light of the fact that Cesar remained an ineligible traveler

on Nieves’s log.

       Fifth, Nieves’s claim that Felkey disregarded Vargas’s complaint that other employees

abused their travel privileges does not show pretext. No evidence suggests that Vargas’s disclosure

about other employees was provided in a timeframe or context that would have halted or

discontinued Envoy’s investigation into Nieves. Nor did the disclosure exculpate him. By the time

Vargas made her complaint, the investigation of Nieves was almost complete. Ingalls testified that

there was nothing Felkey could have done to alter the outcome if he tried.

       Finally, Nieves’s allegation that the travel audit was a pretextual ruse to cover for Envoy

and Felkey’s desire to treat Nieves, a Hispanic man, differently than other employees is not

supported by any evidence. The audit was random and initiated by employees at American, not

Envoy. Nieves was flagged because he had a significant number of individuals listed on his travel

log. At each stage of the investigation, Envoy believed that Nieves violated its travel privileges

policy by listing ineligible individuals. Further, Nieves admitted that he improperly included Cesar

on his travel log when he appealed his termination decision to Ricketts—an admission that led

Ricketts to uphold the termination decision. Accordingly, because Nieves has not shown that

Envoy’s decision to terminate him was pretextual, the district court did not err in granting summary

judgment in favor of Envoy.

                                                 IV.

       Because Nieves has failed to establish a prima facie case for his FMLA and disabilities

claims, we find that the district court did not err in granting summary judgment to Envoy on these



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No. 18-1127, Armando Nieves v. Envoy Air, Inc.


claims. Further, because Nieves has not shown that Envoy’s proffered legitimate,

nondiscriminatory reasons for terminating him were pretextual, we find that the district court did

not err in granting summary judgment to Envoy on his race discrimination claim.

       For these reasons, we AFFIRM the district court’s judgment.




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