Eleventh Circuit Reaffirms: “Picked On” Complaints and Remote Timing Do Not Establish Retaliation; Comparator and Pretext Showings Require Material Similarity and Evidentiary Support

1. Introduction

In Diana Y. Lugo v. Birmingham Jefferson County Transit Authority (11th Cir. June 8, 2026) (unpublished), the Eleventh Circuit affirmed summary judgment for the Birmingham-Jefferson County Transit Authority (“BJCTA”) on discrimination and retaliation claims brought by a former paratransit customer service representative, Diana Lugo.

Lugo alleged that BJCTA terminated her because she is Hispanic and Colombian (race/national origin discrimination under Title VII and 42 U.S.C. § 1981) and retaliated against her for advocating for disabled customers (retaliation under Title VII, § 1981, the ADA, and the Rehabilitation Act). The core issues on appeal were whether the record contained enough admissible, non-speculative evidence to permit a reasonable jury to infer (1) discriminatory intent (including via comparator evidence or pretext) and (2) retaliatory protected activity and causation.

2. Summary of the Opinion

The court held that Lugo failed to create a genuine dispute of material fact on either set of claims. On disparate treatment, Lugo did not identify a valid comparator “similarly situated in all material respects” and did not show BJCTA’s documented performance-based reasons were pretext for discrimination. On retaliation, she did not show statutorily protected activity tied to Title VII (race/national origin) or sufficient evidence of causation, and, in any event, the timing between any alleged protected activity and the adverse actions was far too remote to imply retaliation.

The panel also noted significant briefing deficiencies by the pro se appellant but addressed the merits “giving Lugo the absolute benefit of the doubt.”

3. Analysis

3.1. Precedents Cited

  • McCreight v. AuburnBank, 117 F.4th 1322 (11th Cir. 2024): Cited for the de novo standard of review on summary judgment and for the “enough evidence” requirement to reach a jury. The court used McCreight to frame the appellate posture: Lugo had to point to evidence creating a jury-triable issue, not merely assert wrongdoing.
  • ECB USA, Inc. v. Chubb Ins. Co. of N.J., 113 F.4th 1312 (11th Cir. 2024): Used to explain that denial of reconsideration typically does not require separate analysis; the appellate court reviews the original ruling under the usual standard.
  • Gunn v. Newsome, 881 F.2d 949 (11th Cir. 1989), and Loren v. Sasser, 309 F.3d 1296 (11th Cir. 2002): Cited to emphasize that pro se litigants are given leeway, but must still present intelligible arguments consistent with appellate rules (including Fed. R. App. P. 28(a)(8)(A)). These cases supported the court’s decision to proceed despite poor briefing while underscoring that pro se status does not relax evidentiary burdens at summary judgment.
  • Jenkins v. Nell, 26 F.4th 1243 (11th Cir. 2022), and Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009): Cited for the proposition that § 1981 requires intentional race discrimination and that Title VII and § 1981 claims generally share the same analytical framework in this context. This allowed the court to evaluate Lugo’s Title VII and § 1981 disparate-treatment theories together.
  • Tynes v. Fla. Dep't of Juv. Just., 88 F.4th 939 (11th Cir. 2023), and Ismael v. Roundtree, 161 F.4th 752 (11th Cir. 2025): Used to describe permissible forms of circumstantial evidence (timing, statements, comparator treatment, pretext) and to reiterate that pretext requires evidence that the employer’s reason is false and that discrimination was the real reason.
  • Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019) (en banc): The controlling comparator standard. The court applied Lewis to reject Lugo’s comparator argument because the proposed comparator (Alicia Pebbles) differed in a material respect—seniority/work history—and because the record did not show systematically better treatment.
  • Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121 (11th Cir. 2020) (en banc), and Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327 (11th Cir. 2015): Gogel supplied the pretext articulation (“weaknesses, implausibilities, inconsistencies…”), and Flowers reinforced the “super-personnel department” rule: courts do not second-guess the wisdom of routine employment decisions absent evidence of unlawful motive.
  • Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712 (11th Cir. 2002), and Batson v. Salvation Army, 897 F.3d 1320 (11th Cir. 2018): Cited for the retaliation prima facie elements (protected activity, adverse action, causal connection) under Title VII and the ADA.
  • Coutu v. Martin Cnty. Bd. of Cnty. Comm'rs, 47 F.3d 1068 (11th Cir. 1995): Used to reject the notion that generalized “unfair treatment” complaints are protected under Title VII; the opposition must concern an unlawful practice (e.g., discrimination because of a protected trait).
  • Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 (11th Cir. 2007): Applied to reject causation based on temporal proximity; three to four months is insufficient, and Lugo’s one-to-two-year gaps were far more attenuated.
  • Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997), and Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th Cir. 2008): Invoked to dispose of Lugo’s parallel retaliation theories under § 1981 and the Rehabilitation Act—the court stated its analysis applied “with equal force.”

3.2. Legal Reasoning

A. Disparate Treatment (Title VII and § 1981)

The court evaluated whether Lugo produced circumstantial evidence from which a jury could infer intentional discrimination. It addressed two routes Lugo appeared to press: comparator evidence and pretext.

  1. Comparator evidence failed under Lewis v. City of Union City. Lugo pointed to Alicia Pebbles (a Black employee) who received a leadership position Lugo sought. The court found Pebbles was not similarly situated “in all material respects” because she had a longer tenure—i.e., a materially different work history. The panel also noted that on the “internet issues/return to office” issue, Pebbles was not treated more favorably on the record; both were written up and ordered back, with the distinction that Pebbles accepted the IT audit while Lugo disputed it.
  2. Pretext was not shown under Gogel v. Kia Motors Mfg. of Ga., Inc. and Ismael v. Roundtree. BJCTA presented a documented performance-based narrative: prior scheduling errors, later disciplinary incidents (including a hang-up on a customer), a performance improvement plan emphasizing customer service and compliance with directives, a six-week evaluation finding Lugo failed to meet expectations, and termination shortly thereafter. Lugo’s rebuttal was largely that management “rushed to judgment” and did not let her explain. The court held that even if management’s process were hasty or unfair, that does not establish discriminatory motive, and federal courts cannot act as a “super-personnel department” (Flowers v. Troup Cnty., Ga., Sch. Dist.). Critically, Lugo identified no evidence “that would call into question the genuineness” of the stated reasons or tie the decision to race/national origin.
  3. Allegations of document fabrication did not create a triable issue. Lugo asserted “fraud on the court” via forged disciplinary documents but offered no supporting evidence; the panel highlighted the internal inconsistency that Lugo relied on portions of the same documents when favorable. Unsupported accusations, without competent evidence, do not defeat summary judgment.

B. Retaliation (Title VII, ADA, § 1981, Rehabilitation Act)

The court applied the standard three-element retaliation test (Shannon v. Bellsouth Telecomms., Inc.; Batson v. Salvation Army) and focused on two deficiencies: lack of protected activity and lack of causation.

  1. No Title VII-protected opposition activity was shown. Lugo relied on an exhibit suggesting she complained of being discriminated against or “picked on,” but the court found it did not indicate opposition to race- or national-origin discrimination. Under Coutu v. Martin Cnty. Bd. of Cnty. Comm'rs, complaining about unfair treatment in the abstract is not protected under Title VII unless it concerns an unlawful practice.
  2. Temporal proximity was far too remote to support causation. Even assuming protected activity occurred in September 2019, the adverse actions (non-promotion and termination) occurred roughly a year and two years later. Under Thomas v. Cooper Lighting, Inc., even 3–4 months is typically insufficient; the gaps here were substantially longer. The court also considered intervening evidence—Lugo’s positive 2020 reviews—as making a retaliation inference especially implausible.
  3. ADA retaliation theory lacked causation (and was not clearly protected activity on these facts). Lugo argued she was punished for advocating for disabled customers, pointing to a 2019 incident where she wanted to call passengers about late operators. The court “set aside” uncertainties about whether the conduct was protected under the ADA and decided the case on the same causation problem: the time gap was too large, and there was no other evidence of retaliatory motive.
  4. Parallel retaliation claims fell with the same analysis. Citing Holbrook v. City of Alpharetta and Goldsmith v. Bagby Elevator Co., the court held the same reasoning disposed of retaliation claims under § 1981 and the Rehabilitation Act.

3.3. Impact

Although unpublished and therefore non-precedential in the Eleventh Circuit, the decision is a practical roadmap for how the court continues to apply its established frameworks at summary judgment:

  • Comparator discipline/promotion disputes remain tightly policed. Invoking Lewis v. City of Union City, the court reiterated that differences in tenure and work history can be “material,” defeating comparator showings in promotion and discipline contexts.
  • Pretext requires evidence, not process critiques. The opinion reinforces that “rushed,” “unfair,” or “mistaken” management decisions—without evidence of protected-trait animus—do not establish pretext (Gogel v. Kia Motors Mfg. of Ga., Inc.; Flowers v. Troup Cnty., Ga., Sch. Dist.).
  • Retaliation claims demand identifiable protected activity and timely causation. The court applied Coutu v. Martin Cnty. Bd. of Cnty. Comm'rs to separate generalized workplace complaints from Title VII opposition, and applied Thomas v. Cooper Lighting, Inc. to reject long-gap temporal proximity theories absent other compelling evidence.
  • Unsupported “fraud/forgery” accusations will not create a fact issue. The treatment of Lugo’s “forged documents” argument signals that litigants must come forward with competent proof, not conjecture, to avoid summary judgment.

4. Complex Concepts Simplified

  • Summary judgment: A case ends before trial if, viewing evidence in the non-movant’s favor, no reasonable jury could rule for that party on a material fact.
  • Circumstantial evidence of discrimination: Indirect proof (comparators, timing, shifting explanations, patterns) that can allow an inference of discriminatory intent.
  • “Similarly situated in all material respects”: A comparator must match the plaintiff on key job-related factors (role, supervisor, standards, and relevant work/disciplinary history), so that differential treatment suggests bias rather than legitimate distinctions.
  • Pretext: Evidence that the employer’s stated reason is not the true reason; it is not enough to show the reason is harsh or mistaken—there must be evidence it is false and that unlawful discrimination is the real motive.
  • Protected activity (retaliation): Complaining about or opposing conduct that the statute actually forbids (e.g., race/national-origin discrimination under Title VII), not merely “unfairness.”
  • Temporal proximity: Using closeness in time between a complaint and punishment to infer causation; long gaps usually defeat that inference unless other evidence bridges the gap.
  • “Super-personnel department” rule: Courts do not re-run performance evaluations or decide whether an employer acted wisely; they decide whether the employer acted unlawfully.

5. Conclusion

The Eleventh Circuit affirmed summary judgment because Lugo did not supply evidence from which a reasonable jury could infer that race or national origin caused her termination, nor that BJCTA retaliated against her for protected activity. Applying Lewis v. City of Union City, the court rejected inadequate comparator proof; applying Gogel v. Kia Motors Mfg. of Ga., Inc. and Flowers v. Troup Cnty., Ga., Sch. Dist., it held that disputes about managerial fairness do not equal pretext; and applying Coutu v. Martin Cnty. Bd. of Cnty. Comm'rs and Thomas v. Cooper Lighting, Inc., it concluded that generalized complaints and remote timing do not establish retaliation. The decision underscores a recurring principle in employment litigation: without specific, admissible evidence tying adverse actions to unlawful motive, claims will not survive summary judgment.