Qing Qin v. Vertex Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 23-1031

____________

QING QIN,

Appellant

v.

VERTEX, INC.

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No.: 2-20-cv-02423)

District Judge: Honorable John M. Younge

____________

Argued March 5, 2024

(Filed: May 2, 2024)

Before: SHWARTZ, RENDELL, and AMBRO, Circuit

Judges.

Ian M. Bryson [ARGUED]

Derek Smith Law Group

1835 Market Street

Suite 2950

Philadelphia, PA 19103

Counsel for Appellant

Georgina Yeomans [ARGUED]

Equal Employment Opportunity Commission

Office of General Counsel

131 M Street NE

Washington, DC 20507

Counsel for Amicus Appellant

Tanner McCarron

William J. Simmons [ARGUED]

Littler Mendelson

1601 Cherry Street

Three Parkway, Suite 1400

Philadelphia, PA 19102

Counsel for Appellee

_________

OPINION OF THE COURT

_________

RENDELL, Circuit Judge.

Plaintiff-Appellant Qing Qin is Chinese. He alleges he

was denied a promotion and wrongfully terminated from his

position as a software architect based on his race and national

2

origin and was retaliated against for complaining about that

discrimination. He also alleges that he was subject to a hostile

work environment. The District Court granted summary

judgment in favor of Defendant-Appellee Vertex, Inc. (Vertex)

on all claims.

We will not disturb the District Court’s order regarding

the hostile work environment claim. However, because the

District Court misapplied the McDonnell Douglas burden-

shifting test and ignored certain evidence favorable to Qin, we

will vacate the remainder of the order regarding Qin’s failure

to promote, wrongful termination, and retaliation claims and

remand for those claims to proceed to trial.

I.

Qin is a software engineer, having earned his Ph.D. in

engineering from the University of Pennsylvania, a Chartered

Financial Analyst designation, a Finance-Accounting

Certificate from the Wharton School, and advanced tax and

accounting certificates from the National Tax Institute of SAT

of China. He first came to the United States in 1985 from

China, his birthplace. Qin worked as an Enterprise Software

Architect at Vertex from October 2000 until Vertex terminated

him on May 16, 2019.

A.

Vertex is a software company that develops and sells

corporate tax technology. Its software architects are ranked at

three seniority levels: enterprise (entry-level) architect, senior

architect, and principal architect. It typically took about eight

years for an entry-level architect to be promoted to a senior

3

architect and another six years to be promoted from senior

architect to principal architect. Qin was never promoted, and

thus spent nearly nineteen years as an entry-level architect

despite having the highest education level in Vertex’s

architecture group.

Before 2018, Vertex operated under a decentralized and

non-traditional management model it called the “Advantage

Vertex Model” (AV Model). Appx0111. Under this

management model, employees could select any colleague—

even one whom did not manage or direct the employee’s day-

to-day work—as a “sponsor”; these sponsors submitted

promotion requests, delivered performance reviews, and set

yearly goals. In 2018, it began to move away from this style of

management to the “Zone to Win” model, a more traditional,

results-oriented management structure that emphasized

concrete deliverables and accountability. Appx0111. Under

this model, department supervisors played a larger role in

assigning ratings to employees for their annual performance

reviews.

Under this new structure, Vertex would perform yearly

evaluations that ran from early November to early February.

For their yearly evaluations, Vertex employees were asked to

choose three to five people to provide feedback on their review.

Those reviewers would submit their comments, after which a

supervisor would provide overarching feedback and a rating.

Finally, a “calibration team” reviewed and potentially adjusted

the rating, which was then conveyed to the employee no later

than early February. Promotion decisions were based on this

evaluation and calibration process.

4

B.

Qin was the only Chinese employee among Vertex’s

seventeen software architects, and he alleges that on several

occasions, he was called “China Man” to his face by various

coworkers. Appx0772, 0822, 0926, 1078. He cannot recall who

called him “China Man,” why they did so, or the surrounding

context. He also alleges that after suggesting Vertex try

something based on a new technology that had originated in

China, a coworker replied, “Why don’t you go back to China?”

Appx0822, 0926.

Qin requested a promotion from entry-level to senior

architect in or around 2004. He never received a formal

decision or explanation regarding the status of this promotion

request. In 2015, even though Qin was evaluated and

determined to have met every item of the job description of his

target promotion position of senior architect and was

recommended for promotion, he was again passed over for

promotion.

In the later years of his employment with Vertex, Qin

spent substantial time working on exploratory work. In 2014,

Rick Harter, Qin’s manager, emailed Qin saying, “We need to

get you more involved in opportunities where your ideas can

get implemented. You will also have to jump into some work

that is more related to the needs as expressed by the strategy

teams . . . .” Appx0497. However, Qin continued to work on

informal, exploratory projects, including the “PAM Library,”

which Vertex states he continued to work on for over a year

after learning that it was not a viable offering for Vertex. For

his part, Qin denies working on the PAM Library after he

learned Vertex would not be pursuing it.

5

C.

In February 2018, Harter agreed to recommend Qin for

a promotion at the end of 2018 provided he met his yearly

goals. That October, Ed Read, Vertex’s Finance Director and

Qin’s sponsor, recommended Qin for promotion to senior

architect. That same month, Qin—who had not been told about

that recommendation—asked Harter whether he had not yet

been promoted because he was Chinese. Harter answered no

and referred Qin to Human Resources. In November, Harter

signed off on the promotion form.

On December 13, 2018, Qin met with Andrea Falco in

Vertex’s Human Resources department to inquire about the

company’s procedures for reporting discrimination and

harassment. Qin denied that he had anything to report. Falco

then shared with others, including Nicole Sakowitz (another

Human Resources employee and decisionmaker on Qin’s

performance evaluation), that Qin had come to her office to ask

about discrimination reporting procedures.

On December 14, 2018, Jen Kurtz, Vertex’s Chief

Technology Officer and the individual responsible for

approving promotions, reached out to Harter regarding the

promotion and expressed doubt regarding the basis for the

promotion. Harter told Kurtz that Qin “has accomplished the

goals that Ed [Read] and I set for him earlier in the year,” but

the reviews coming in for Qin’s yearly evaluation were making

him rethink the promotion. Appx1274. Harter agreed with

Kurtz’s plan to defer the promotion decision until after the

yearly-review calibration process and reassess next steps for

Qin in the new year.

6

D.

After receiving evaluations from reviewers, managers

were able to assign employees ratings based on those reviews

and their experience with the employee. At that time, Harter

assigned Qin a “Strong Contributor” rating. Appx0296. The

calibration process then began. The team that evaluated Qin’s

review was Kurtz, Lois Reynolds (Program Management

Director), Norm Stahlheber (Director of Software

Development), Sakowitz, and Falco. It was during this time

that the calibration team, in conjunction with Harter, changed

Qin’s “Strong Contributor” rating to a “Usually Meets

Expectations” rating, which Vertex considers a poor rating.

Appx0790. In their depositions, some members of the team

said this revised rating resulted from Qin’s struggle to engage

in formal projects, while Harter said that it was based, in part,

on a negative review from John Hart, a peer whom Qin

requested participate in his yearly review.

The comment from Hart reads as follows:

I truly like Qin as a person but I

have come to be very disappointed

by his general passivity. He

generally takes an excessive

amount of time to accomplish

tasks, and is overly reliant upon

others for direction. Within the AV

model he had no idea regarding

how decisions were made and

seemed to have very little interest

(or ability) to build relationships to

help him establish a role within the

7

organization where he could be

effective (essentially, he’s been in

semi-hiding for years – in spite of

the fact that he seems to want to

work on something meaningful). I

think he is an intelligent person,

but his historical relationship with

Vertex has set him into behavioral

patterns that are not in alignment

with the Winning Way (while he

wants decisions to be made, he is

unable to achieve alignment within

the team to make a decision and he

is extremely reluctant to be the one

who makes the decision to the

point that he uncomfortably laughs

and physically recoils when it is

suggested that he take ownership

(he clearly sees doing so as a risky

thing to do) – this behavior fails

both the Winning Way “Own the

Outcome” and “Drive to Decision”

goals… By being so passive and

therefore unable to drive to

decisions and ultimately not

willing to own outcomes[,] [he]

limits his ability to “Act with

Urgency” because the priority is

always on not taking a risk and

instead waiting for others to realize

that he needs their participation to

move anything forward)… If he

doesn’t take ownership of his role

8

and establish strong relationships

within the Zone to Win model[,] I

don’t see his role as viable within

Vertex. My concern being that he

simply doesn’t have the skill,

personality, or sufficient backing

of a leader within the organization

for him to become a more dynamic

individual who delivers high-value

work products on a weekly basis…

Appx0955-56. All other comments were generally positive.1

On February 8, 2019, Qin received his 2018

performance evaluation. Following his negative evaluation,

Vertex gave Qin the option either to undertake a Performance

Improvement Plan (PIP) or accept termination with a

severance package of twenty-six weeks’ pay and benefits. Qin

selected and began drafting the PIP. Vertex claimed the PIP

was necessary due to his poor performance rating of “Usually

Meets Expectations.” Appx0282-83.

Qin interviewed each of his performance reviewers to

understand and define his performance improvement

1

See, e.g., Appx1136 (“QinQing is an exceptional talent and

his insights and analytical skills can be greatly leveraged in the

company”); Appx1135 (“QingQin is very determined, detail

orientated [sic] and focused on meeting the objectives he sets

out to accomplish. When communicating his plans for

something he is very comprehensive and incorporates in the

feedback of others to ensure a complete view of

perspectives.”).

9

objectives. When Qin interviewed Hart, Hart told him the

negative comments were due to “cultural differences.”

Appx0823, 1128-29, 1145-46. Qin understood this to mean

that Hart’s review was based on negative stereotypes of

Chinese individuals. Hart contends that he was referring to the

cultural shift Vertex was undergoing at the time and testified

that he told Qin to look at factors including “[his] cultural

background, how [he] grew up” and consider whether “they

make [him] fit or not fit within Vertex.” Appx1146.

E.

On March 31, 2019, Qin had reported to Falco that he

believed Hart’s review comment was racially motivated. The

next day, he explained the specific details of the discriminatory

comment. He told Falco the review was

full of negative opinions with no

factual basis, and they are not true

in describing my behavior and

performance at Vertex. Rather, the

[review] is full of descriptions of a

stereotypical Chinese, e.g., lacking

social skills (“uncomfortable

laughs”, etc.), needing

guidance/less autonomous

(“general passivity”, “overly reliant

upon others for direction”, etc.).

Appx1126. Qin met with Falco on April 12, 2019, to discuss

the details of his allegations regarding the discriminatory

review. Falco also interviewed Hart regarding the comment.

10

After conducting both interviews, Falco concluded that

while she believed Hart did not intend the comments to be

racially or culturally insensitive, Qin interpreted them that

way. In her deposition, Falco did not concede that the

comments were discriminatory; rather, she admitted only that

“they were inappropriate.” Appx1002. When asked whether

the comments were “racially or culturally insensitive,” Falco

testified that she believed “Qin interpreted them that way, and

I think he’s well within his rights to do that.” Appx1002.

Ultimately, Falco testified that HR agreed to remove the

comments because they were inappropriate, because Hart

should not have been a commenter on Qin’s review, and

because Qin felt they were discriminatory. She concluded the

HR investigation and agreed to remove Hart’s evaluation

completely from the 2018 performance review. Even with

Hart’s comments removed, Qin’s rating remained a “Usually

Meets Expectations,” and Vertex did not revisit the decision to

place Qin on a PIP.

F.

When drafting his PIP, Qin identified four objectives

that would allow him to accomplish the PIP. The fourth, which

would enable Qin to satisfy the PIP if he “s[ought] [a]

contribution opportunity for any other initiatives supporting

Vertex Enterprise Objectives,” was removed by Vertex in the

final PIP. Appx0715. Qin joined the Excise Tax Project, which

he testified would have satisfied this fourth objective in his

draft PIP that was later removed.

In his final PIP, Qin identified “barriers to success” that

included being “[u]nable to identify decision makers for all

items” and being “[u]nable to access the decision makers and

11

stakeholders to learn potential opportunities and present my

relevant knowledge and experience.” Appx1123. Qin and

Vertex signed his PIP, and he was formally placed on it on

April 2, 2019. It gave Qin until May 3 to meet any one of three

identified performance goals.

As he identified in his PIP, Qin had difficulty finding

projects with decisionmakers who had the authority to permit

him to join the project, and his PIP was extended for two

weeks. Qin testified in a declaration that he reached out to

multiple managers and decisionmakers who could empower

him to complete any of the PIP objectives, and he did not hear

back from any of them. When Qin did not meet any of the PIP

goals by the extended deadline, Falco and Stahlheber, who had

assumed Qin’s management, decided to terminate him on May

16, 2019.

For that same evaluation period, another employee in

the architect group, Fred Yawe, whom Harter also supervised,

was given a “Usually Meets Expectations” rating. Appx0792,

1052. Yawe’s performance review identified that he “[was] not

engaged or lack[ed] follow up.” Appx0793. Yawe, however,

was not put on a PIP or terminated. He is not Chinese. Yawe

had just joined Vertex that year, and Vertex urges that he was

contributing to Vertex’s flagship cloud product and was not

promoted.

Qin filed his complaint alleging race and national origin

discrimination claims under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000 et seq., 42 U.S.C. § 1981, and the

Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951,

et seq. Specifically, he alleged that Vertex did not promote him

and eventually terminated him because of his Chinese

12

nationality and/or in retaliation for engaging in protected

activity. He also alleged he was subject to a racially hostile

work environment. The District Court granted summary

judgment to Vertex on all Qin’s claims. He timely appealed.

II.

The District Court had jurisdiction over this matter

under 28 U.S.C. § 1331 and supplemental jurisdiction under 28

U.S.C § 1367. We have jurisdiction under 28 U.S.C. § 1291.

When reviewing a district court’s grant of summary

judgment, our review is plenary, and we apply the same

standard as the District Court. Faush v. Tuesday Morning, Inc.,

808 F.3d 208, 215 (3d Cir. 2015). Under that standard,

summary judgment is appropriate only if, construed in the light

most favorable to the non-moving party, the record shows that

there is no genuine dispute of material fact and that the moving

party is entitled to judgment as a matter of law. Wharton v.

Danberg, 854 F.3d 234, 241 (3d Cir. 2017); Fed. R. Civ. P.

56(a). “This standard is applied with added rigor in

employment discrimination cases, where intent and credibility

are crucial issues.” Stewart v. Rutgers, The State Univ., 120

F.3d 426, 431 (3d Cir. 1997) (quotation omitted). A fact is

material if it might affect the outcome of the suit under the

governing law. Scheidemantle v. Slippery Rock Univ. State Sys.

of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006).

III.

A brief discussion of the District Court’s opinion is apt

here to inform our analysis. Vertex moved for summary

judgment on all Qin’s claims, which the District Court granted

13

in full. Regarding Qin’s hostile work environment claim, the

District Court found that the alleged comments were “offhanded

and isolated” and thus “not sufficient to establish a hostile work

environment claim.” Qin v. Vertex, Inc., No. CV 20-2423-JMY,

2022 WL 10493574, at *5 (E.D. Pa. Oct. 18, 2022).

Regarding Qin’s discrimination claims, the District

Court concluded that Qin’s direct evidence of discrimination—

i.e., comments from coworkers calling him “China Man,”

asking him to go back where he came from, and explaining that

a negative review stemmed from “cultural differences”—

amounted only to “stray remarks” and thus were not direct

evidence of discrimination. Id. at *3. It also concluded that,

under the McDonnell Douglas framework for analyzing

circumstantial evidence of discrimination, Qin failed to present

a prima facie case that would shift the burden to Vertex to

provide a legitimate reason for denying Qin a promotion and

terminating him. Id. The Court explained that Qin both failed

to provide evidence that Vertex sought applications for the

senior architect position and that the position remained open or

was filled by someone else, id., and “failed to provide evidence

[of a comparator] which would allow this Court to infer

discrimination,” id. And even if Qin had made his prima facie

case, the Court found that Vertex offered “legitimate, non-

discriminatory reasons for not promoting [Qin] and for

terminating his employment,” crediting Vertex’s explanations

that Qin “failed to engage in formalized Vertex initiatives and

projects” and failed to satisfactorily complete his PIP. Id. at *4.

Analyzing Qin’s retaliation claims, the District Court

first found that Qin’s inquiry to Harter about whether he had

not been promoted because of his race and his inquiry to Falco

about reporting procedures were not protected activity that

14

“rise to the level of informal complaints or protests [or] state

opposition to unlawful discrimination in a clear and

unequivocal manner.” Id. at *6. Then, the Court concluded that

anything beyond a three-week time frame was too attenuated

to suggest a causal relationship and thus concluded that Qin’s

March 31 complaint was too far removed from his termination

to support an inference of retaliation. Id. at *7. Finally, the

Court briefly noted that if it were to undertake a McDonnell

Douglas analysis, Vertex indeed provided a “plausible and

consistent explanation for both the lack of promotion and

subsequent termination.” Id.

IV.

Because we agree with the District Court that Qin did

not present evidence to demonstrate a sufficiently severe and

pervasive hostile work environment, we will affirm summary

judgment in favor of Vertex on that claim. However, Qin

presented evidence that would give rise to an inference of

discrimination and presented comparator evidence that would

allow a reasonable jury to determine Vertex’s reasons for

denying promotion and termination were pretextual. Further,

the evidence and timeline of his protected activity are sufficient

to find causation on his retaliation claims under our precedent.

Accordingly, we will vacate the District Court’s order on his

discrimination and retaliation claims.

We examine Qin’s Title VII, § 1981, and PHRA claims

together because they fall under the same analytical

framework.2

2

Atkinson v. Lafayette Coll., 460 F.3d 447, 454 n.6 (3d Cir.

2006) (“Claims under the PHRA are interpreted coextensively

15

A. Hostile Work Environment Claim

Qin alleged that he suffered a hostile work environment.

He points to three comments that he alleges created a hostile

work environment over the course of his nearly two decades of

employment: (1) Hart’s review and later verbal comment that

the review stemmed from “cultural differences,”3 Appx1128-

29, 1145-46; (2) a comment from coworker Robert Norton

asking, “why don’t you go back to China if the technology is

so advanced?”, Appx0444; and, (3) the “China Man”

comments Qin heard at an unspecified time by unidentified

speakers at Vertex, Appx0245-46, 0444-45. Additionally, Qin

insists in his Opening Brief that we must consider these

comments in context—he was the only Chinese employee in

his group and was never promoted during his time at Vertex.

Br. of Appellant 33-35.

We “concentrate not on individual incidents, but on the

overall scenario,” when analyzing a hostile work environment

claim. Caver v. City of Trenton, 420 F.3d 243, 262-63 (3d Cir.

2005). The Supreme Court has taught that we are to consider

“the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

with Title VII claims.”); Lewis v. Univ. of Pittsburgh, 725 F.2d

910, 915 n.5 (3d Cir. 1983) (explaining that actions brought

under § 1981 require the same elements of proof as a Title VII

action).

3

Although, in his opening brief, Qin does not explicit rely on

the “cultural differences” argument to support his hostile work

environment claim, we will consider this comment for the sake

of completeness. See Br. of Appellant 33-35.

16

offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 23 (1993).

In considering the severity of the discriminatory

conduct, we look to whether the conduct creates “an attitude of

prejudice that injects hostility and abuse into the working

environment.” Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d

174, 182 (3d Cir. 2020) (quoting Taylor v. Metzger, 706 A.2d

685, 693 (N.J. 1998)). Although the remarks Qin endured were

offensive, they do not rise to the level of severity that would

alter working conditions. Compare id. (holding that obviously

racial comments, including being greeted with “Hey Arabia

Nights” or “Hey, Big Egypt” and condescending questions

about technology in the plaintiff’s home country, were not so

severe as to make a hostile work environment) with

Castleberry v. STI Grp., 863 F.3d 259, 265 (3d Cir. 2017)

(holding that the use of an unambiguous racial epithet by a

supervisor, immediately followed by a threat of termination,

created a hostile work environment). None of the remarks here

were severe enough to create a hostile work environment.

We must also look to the frequency of the conduct in

the context of the case. Nitkin v. Main Line Health, 67 F.4th

565, 571 (3d Cir. 2023); Harris, 510 U.S. at 23. Here, three

comments over the course of almost nineteen years simply do

not reach the requisite level of frequency or severity. See, e.g.,

Nitkin, 67 F.4th at 571 (determining that seven comments over

three-and-a-half years were neither severe nor pervasive

enough to constitute a hostile work environment). The

comments here were too infrequent to constitute pervasive

harassment.

17

Finally, we consider whether the alleged discrimination

was physically threatening, humiliating, or unreasonably

interfered with the plaintiff’s work performance. Harris, 510

U.S. at 23. Qin provided no evidence that would allow us to

find a hostile work environment existed on these bases.

The handful of isolated comments presented over Qin’s

nearly two decades at Vertex is not enough for a reasonable

jury to conclude that Qin was subjected to a hostile work

environment. We thus agree with the District Court; this claim

was properly dismissed.

B. Discrimination Claims

Qin alleges that he was discriminated against based on

his race and national origin when he was denied a promotion

and terminated. The District Court concluded that he did not

present direct evidence of discrimination or present a prima

facie case under the McDonnell Douglas pretext analysis for

either his failure to promote or his termination claim.4 Qin

disagrees with the District Court’s reasoning at all steps of the

disparate treatment analysis. While we agree with the District

Court that Qin has not presented direct evidence of disparate

treatment, we find that he has presented sufficient evidence to

support a prima facie case of discrimination through

circumstantial evidence.

4

Much of the evidence and argument for Qin’s failure to

promote and termination claims overlap. We address the

claims together here and distinguish them when relevant, both

in this discrimination analysis and in the retaliation analysis

infra.

18

“A disparate treatment violation is made out when an

individual of a protected group is shown to have been singled

out and treated less favorably than others similarly situated on

the basis of an impermissible criterion under Title VII.”

E.E.O.C. v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990).

For a successful disparate treatment claim, “proof of the

employer’s discriminatory motive is critical.” Id. There are two

ways to show discriminatory intent: (1) direct evidence or (2)

circumstantial evidence. Id.

1.

Direct evidence of disparate treatment is evidence that

“is so revealing of discriminatory animus that it is not

necessary to rely on any presumption from the prima facie case

[as is necessary in a pretext action] to shift the burden of

production.” Starceski v. Westinghouse Elec. Corp., 54 F.3d

1089, 1096 (3d Cir. 1995) (cleaned up). In other words, the

evidence must be such that it demonstrates that the

“decisionmakers placed substantial negative reliance on an

illegitimate criterion in reaching their decision.” Price

Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor,

J., concurring). This is a “high hurdle.” Anderson v. Consol.

Rail Corp., 297 F.3d 242, 248 (3d Cir. 2002). Discriminatory

statements constitute direct evidence of discrimination where

there is evidence linking the speaker to the employer’s adverse

employment action. Walden v. Georgia-Pacific Corp., 126

F.3d 506, 515-16 (3d Cir. 1997).

Qin points to the following “direct” evidence: He was

placed on a PIP because of Hart’s review comments and when

confronted, Hart explained that these comments were based on

“cultural differences.” Appx0823. Thus, Qin’s negative

19

performance review, lack of promotion, and subsequent PIP

and termination were based not on his work, but on his race

and national origin.

We agree with the District Court that Qin’s “direct”

evidence is insufficient. Hart was not a decisionmaker, and his

comment about “cultural differences” was not known to the

decisionmakers at the time Qin was denied promotion or

terminated. See Walden, 126 F.3d at 516; Price Waterhouse,

490 U.S. at 277 (O’Connor, J., concurring) (“Nor can

statements by nondecisionmakers, or statements by

decisionmakers unrelated to the decisional process itself,

suffice to satisfy the plaintiff’s burden in this regard.”).

Because Qin has not provided direct evidence of

discrimination, we next look to his circumstantial evidence of

discrimination.

2.

In the absence of direct evidence of disparate treatment,

the McDonnell Douglas burden-shifting framework applies.

Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973)). Under this framework, the plaintiff must “establish a

prima facie case of discrimination by showing that: (1) [he] is

a member of a protected class; (2) [he] was qualified for the

position [he] sought to attain or retain; (3) [he] suffered an

adverse employment action; and (4) the action occurred under

circumstances that could give rise to an inference of

intentional discrimination.” Id. (citing McDonnell Douglas,

411 U.S. at 802) (emphasis added). However, the Supreme

Court has cautioned that the McDonnell Douglas framework

“is an evidentiary standard, not a pleading requirement,” and

20

was “never intended to be rigid, mechanized, or ritualistic.”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 512 (2002)

(internal quotation marks and citation omitted).

The District Court incorrectly analyzed the fourth

McDonnell Douglas factor in both Qin’s failure to promote

claim and his termination claim, and we address them in turn.

i. Failure to Promote Claim

The District Court correctly recited the more flexible

approach to the McDonnell Douglas framework for the prima

facie case. But it applied it too narrowly. In analyzing Qin’s

failure to promote claim, the District Court required Qin to

show that he applied to an open position and was rejected, and

that the position remained open or was filled by someone else

who was chosen over him. Qin, 2022 WL 10493574, at *3.

Because there was no evidence that Vertex even sought

applicants for the Senior Architect position—rather, Qin

requested a promotion—the Court held that he could not make

out the prima facie case. Id.

The District Court should have considered the fourth

McDonnell Douglas factor: that is, whether the action, taken

together with the circumstances, “could give rise to an

inference of intentional discrimination.” Makky, 541 F.3d at

214. And here, we conclude that it could. Qin presented

evidence that, on average, entry-level architects were promoted

to senior architects after about eight years, and then promoted

again after about six more years. Qin, the only Chinese

employee in the architecture group, was never promoted in his

nearly nineteen-year tenure. Qin also presented evidence that

he was on track for promotion in 2018, and that supervisors at

21

Vertex had expressed a need for senior architects and senior-

level work. And he presented evidence from which a jury could

reasonably infer that part of the reason Qin was not promoted

in 2018 was Hart’s negative review. See Appx1284 (showing

that Harter did an about-face regarding Qin’s promotion: “I’m

starting to feel uncomfortable about some of the issues (minor

though they are) that have showed up in his review.”).

While Vertex did not seek applicants for a senior

architect role, “the failure to formally apply for a job opening

will not bar a Title VII plaintiff from establishing a prima facie

claim of discriminatory hiring, as long as the plaintiff made

every reasonable attempt to convey his interest in the job to the

employer.” Metal Serv. Co., 892 F.2d at 348. Vertex has

presented no evidence that it sought external applicants for

senior roles, and Qin presented ample evidence that he

conveyed his interest in a promotion to Vertex. We conclude

that he has successfully presented a prima facie case for his

failure to promote claim.

ii. Termination Claim

Regarding his termination claim, the District Court

correctly explained that Qin could establish an inference of

discrimination by “demonstrat[ing] that similarly-situated

persons outside the protected class were treated more

favorably.” Qin, 2022 WL 10493574, at *3 (alteration in

original) (citing Collins v. Kimberly-Clark Pa., LLC, 247 F.

Supp. 3d 571, 589 (E.D. Pa. 2017), aff’d, 708 F. App’x 48 (3d.

Cir. 2017)). However, it found that Qin failed to present a

similarly situated employee. We disagree. The Court failed to

analyze or even mention Qin’s comparator evidence showing

that his non-Chinese co-worker Yawe was treated more

22

favorably during the 2018 performance review cycle.

We have adopted the standard used by other circuits that

comparator employees need not be identical but must be

similarly situated in “all material respects.” In re Tribune

Media Co., 902 F.3d 384, 403 (3d Cir. 2018) (citation omitted);

see also Russell v. University of Toledo, 537 F.3d 596 (6th Cir.

2008); Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-61

(5th Cir. 2009). Factors that are relevant include whether the

employees dealt with the same supervisor, were subject to the

same standards, and shared similar job responsibilities. In re

Tribune Media Co., 902 F.3d at 403; see also Lee, 574 F.3d at

259-61; Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 751 (7th

Cir. 2006); Wilcher v. Postmaster Gen., 441 F. App’x 879, 882

(3d Cir. 2011). An employee who holds a different job title or

works in a different department is not similarly situated.

Mandel v. M & Q Packaging Corp., 706 F.3d 157, 170 (3d Cir.

2013).

Here, Qin presented Yawe as a comparator. In all

“material respects,” Yawe and Qin are similar. Both men were

architects supervised by Harter. They were both initially given

“Usually Meets Expectations” reviews at the end of the

evaluation period, and both men’s reviews reflected a lack of

engagement. However, Yawe’s Performance Review was

upwardly adjusted, and he was not put on a PIP or terminated.

Vertex attempts to limit who can be considered a similarly

situated employee and insists on too narrow a definition: it

points to Yawe’s assignment on the cloud product and his short

tenure at the company rather than his position, supervisor, and

job responsibilities. These differences are immaterial for the

purpose of establishing a prima facie case. In all material

respects, Yawe is an appropriate comparator.

23

3.

Once Qin established a prima facie case of

discrimination, the burden shifted to Vertex to articulate a

legitimate, non-discriminatory reason for the adverse

employment action. Makky, 541 F.3d at 214. The District Court

was correct in finding Vertex did so here: Vertex explained that

it did not promote Qin because he failed to engage in

formalized Vertex initiatives and instead spent time on

exploratory projects and projects he knew were not going to be

adopted by the company. And as for his termination claim,

Vertex explained that Qin was terminated because he failed to

satisfactorily complete his PIP.

After Vertex provided a legitimate, non-discriminatory

reason for denying Qin a promotion and later terminating him,

the burden shifted back to Qin to show that “the defendant’s

proffered reason is merely pretext for intentional

discrimination.” Makky, 541 F.3d at 214. To establish pretext,

a plaintiff “must point to some evidence, direct or

circumstantial, from which a factfinder could reasonably either

(1) disbelieve the employer’s articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more

likely than not a motivating or determinative cause of the

employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994). The plaintiff can satisfy the second prong by

demonstrating, among other things, that “the employer treated

other, similarly situated persons not of his protected class more

favorably.” Id. at 765.

We will examine how the pretext analysis should play

out. If there was nothing from which a jury could infer Vertex’s

proffered reason to be pretextual, we would affirm the

24

dismissal of claim. However, Qin presented sufficient evidence

to allow a reasonable jury to draw an inference of pretext from

the following: First, regarding the evaluation process, there is

a question of material fact as to the reason for the “Usually

Meets Expectations” evaluation. Falco and Stahlheber

explained that the calibration team took all the feedback Qin

received into account before lowering his evaluation to

“Usually Meets Expectations,” but conflicting testimony

shows that Hart’s comment was the main reason Qin received

a “Usually Meets Expectations” rating. Second, he had

performed satisfactorily for the company for eighteen years,

then suddenly when he was up for a promotion, he was placed

on a PIP and ultimately fired. Third, Qin presented comparator

evidence, which the District Court did not address. Fourth, Qin

presented evidence of Hart’s explanation that his review was

based on “cultural differences” and Hart’s strained explanation

of what that means. And fifth, Qin presented evidence

regarding intentionally imposed barriers that prevented him

from successfully completing his PIP.

This, among other evidence, would permit a jury to find

pretext. Accordingly, we will vacate the District Court’s grant

of summary judgment on Qin’s discrimination claims.

C. Retaliation Claim

Qin alleges that he was not promoted and that he was

terminated in retaliation for engaging in protected activity. He

alleges that he engaged in three forms of protected activity: (1)

asking his manager in October 2018 whether he had not been

promoted because he is Chinese; (2) asking Human Resources

about Vertex’s discrimination reporting procedures; and (3)

complaining that his negative performance review included

25

stereotypical generalizations of Chinese men that were

discriminatory, baseless, and false. To establish a prima facie

case for retaliation, Qin needed to show: “(1) that he engaged

in protected conduct; (2) that he was subject to an adverse

employment action subsequent to such activity; and (3) that a

causal link exists between the protected activity and the

adverse action.” Barber v. CSX Distrib. Servs., 68 F.3d 694,

701 (3d Cir. 1995).

The District Court concluded that only Qin’s

submission of a complaint of stereotyping constituted

protected activity and that he failed to show a causal

connection between that protected activity and the alleged

retaliation. Qin, 2022 WL 10493574, at *7. We agree that

Qin’s submission of a complaint of stereotyping constituted

protected activity and that his inquiry into reporting procedures

did not.5 However, regarding Qin’s question to Harter about

whether he had not been promoted due to being Chinese, we

disagree with the District Court and conclude that was

protected activity.

i.

Qin’s October 2018 question to Harter was protected

conduct. Title VII protects “those who oppose discrimination

5

We agree with the District Court that Qin’s December 2018

request to Falco about Vertex’s reporting procedures is not

protected activity. When asking Falco about how to make a

complaint about discrimination, Qin did not make any

complaint—explicit or implicit—about discrimination based

on a protected characteristic. Thus, this action cannot be

viewed as protected conduct.

26

made unlawful by Title VII.” Moore v. City of Phila., 461 F.3d

331, 341 (3d Cir. 2006). Thus, only complaints about

discrimination prohibited by Title VII—discrimination based

on race, color, religion, sex, or national origin—constitute

protected activity. Barber, 68 F.3d at 701-02. General

complaints of unfair treatment are not. Id. at 702. Protected

activity can include “informal protests . . . including making

complaints to management,” but it “must not be equivocal [or

vague].” Moore, 461 F.3d at 341-43. As relevant here,

retaliatory action can also result from an employer’s

perception that an employee is engaging in protected activity.

Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 572 (3d Cir.

2002).

In October 2018, Qin asked his manager, Harter, if the

reason why he had not been promoted was because he is

Chinese. To be sure, our precedent requiring opposition to the

alleged unlawful conduct “not be equivocal” precludes

retaliation claims where the employee fails to communicate to

the employer his belief that he suffered discrimination. Barber,

68 F.3d at 702 (explaining that a letter expressing

dissatisfaction with a lack of promotion but not specifically

complaining about or suggesting discrimination is not

protected conduct). Qin, however, made an explicit connection

between his membership in a protected class and his lack of

promotion. Here, there is no meaningful difference between

Qin asking, “Am I not being promoted because I’m Chinese?”

and Qin saying, “I think I am not being promoted because I’m

Chinese.” Indeed, in response, Harter referred Qin to Human

Resources, clearly understanding that Qin was alluding to

discriminatory treatment. It was not vague or equivocal. A jury

could readily view this exchange as protected conduct. Harter’s

response bolsters such a conclusion. Cf. Fogleman, 283 F.3d at

27

572 (finding that retaliation can occur following an employer’s

perception that an employee engaged in protected activity).

There can be no argument as to the other protected

activity. As the District Court recognized, Qin’s complaint

regarding stereotyping in his March 31 email clearly satisfies

the requirements for protected activity as a clear complaint

about discrimination. The only issue that remains is whether

there is a sufficient causal link between the protected activity

and the retaliatory conduct.

ii.

A reasonable juror could find a causal link between

Qin’s protected activity and his lack of promotion and

termination. “[T]emporal proximity between the protected

activity and the termination [can be] itself sufficient to

establish a causal link.” Williams v. Phila. Hous. Auth. Police

Dep’t, 380 F.3d 751, 760 (3d Cir. 2004) (quoting

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d

Cir. 2003)). For temporal proximity to be sufficient on its own,

“the timing of the alleged retaliatory action must be unusually

suggestive of retaliatory motive before a causal link will be

inferred.” Id. But even so, if temporal proximity alone is not

enough, we have recognized that “timing plus other evidence

may be an appropriate test.” Thomas v. Town of Hammontown,

351 F.3d 108, 114 (3d Cir. 2003) (quotation omitted). Part of

the “timing plus” analysis is whether an adverse employment

action took place as early as it could have given an employer’s

set cycle of employment decisions. Connelly v. Lane Constr.

Corp., 809 F.3d 780, 792-93 (3d Cir. 2016).

28

The District Court’s adoption of a rigid three-week time

frame as part of the temporal proximity inquiry was a

misapplication of the law. In Moody, an employee alleged she

was retaliated against after she filed a written complaint that

she was being sexually harassed by her supervisor. Moody v.

Atl. City Bd. of Educ., 870 F.3d 206, 220 (3d Cir. 2017). After

she filed her complaint, her hours declined three-fold in the

months following. Id. While the reduction in hours in Moody

happened immediately after the protected activity, we

explained that the inference of “unduly suggestive” proximity

“begins to dissipate where there is a gap of three months or

more.” Id. at 221 (citing LeBoon v. Lancaster Jewish Cmty.

Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (holding that a

gap of three or five months, without more, cannot create an

inference of causation)). Here, the Court imposed a shorter

“unduly suggestive” time frame, explaining that anything

beyond three weeks is too attenuated.6 Regarding Qin’s claim

that his termination was retaliatory, Qin complained about the

6

The District Court relies on Thomas v. Town of Hammonton to

establish its three-week time frame. 351 F.3d 108, 114 (3d Cir.

2003). Thomas is distinguishable. First, we relied on the “timing

plus” analysis in Thomas to determine that, despite a mere three-

week gap between the protected activity and the adverse

employment action, there could be no inference of causation. Id.

Rather, in Thomas the record supported that the plaintiff was

terminated not in retaliation, but after nine days of absences, two

of which were unaccounted for, at the end of an agreed-upon

probationary period at the beginning of her employment. Id.

Here, along with the temporal proximity between Qin’s

complaint to HR and his termination, the record provides that

the termination occurred at the end of a known evaluation and

PIP cycle and at the first opportunity to terminate Qin.

29

discrimination in his performance review in an email to

Vertex’s HR on March 31, 2019. He was terminated six weeks

later, on May 16, 2019. This timing is well within the three-

month range to be “unusually suggestive of retaliatory

motive.” Williams, 380 F.3d at 760. A jury could find that the

proximity between Qin’s complaint to HR and his termination

is enough to infer causation.

For Qin’s claim that he was denied a promotion in

retaliation, the District Court should have considered the

context surrounding the alleged retaliation. In Connelly, the

plaintiff alleged that her employer’s failure to rehire her in

April 2011 was retaliation for making a complaint about sexual

harassment in May 2010—nearly a year prior to the decision

not to rehire here. 809 F.3d at 792. Despite this gap, we held

that the plaintiff had sufficiently pled retaliation given the

“seasonal character” of her work: because the employer

traditionally hired during construction seasons, “it may be that

a retaliatory decision to not rehire her would not become

apparent until after the off-season that ran from October 2010

to March 2011.” Id. Qin’s first protected activity—when he

asked Harter whether his race was why he had not been

promoted—occurred in October 2018 and he was denied a

promotion in February 2019. This delay of about four months

is indeed outside of the three-month time frame we have

identified, beyond which the inference of “unduly suggestive”

temporal proximity begins to dissipate. Moody, 870 F.3d at

221. However, looking to timing and other evidence is

appropriate. Qin asked Harter in October, before the annual

review cycle began, whether he had not been promoted

because he was Chinese. Then, mid-way through the review

cycle and after reviewing Qin’s reviewer comments, Harter

agreed with Kurtz to hold off on the promotion. In February,

30

Qin did not receive a promotion at the end of the review cycle,

when he received his negative evaluation. In the context of

Vertex’s set evaluation cycle, calibration process, and

promotion schedule, Vertex’s February 2019 decision not to

promote Qin happened at the first promotion opportunity

following his protected activity. Connelly, 809 F.3d at 792-93.

A jury, then, could find a causal connection between Qin’s

inquiry to Harter and his failure to be promoted.

Accordingly, we will vacate and remand for further

proceedings on Qin’s retaliation claims.

V.

For the foregoing reasons, we will affirm the District

Court’s grant of summary judgment in favor of Vertex on

Qin’s hostile work environment claim. However, we will

vacate the District Court’s grant of summary judgment on

Qin’s disparate treatment and retaliation claims and remand for

further proceedings consistent with this opinion.

31