Qing Qin v. VERTEX, INC. On Appeal from the United States District Court for the Eastern…

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

-- 1 of 31 --

2
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 of 31 --

3
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 of 31 --

4
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 of 31 --

5
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 of 31 --

6
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 of 31 --

7
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 of 31 --

8
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 of 31 --

9
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 of 31 --

10
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 of 31 --

11
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 of 31 --

12
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 of 31 --

13
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 of 31 --

14
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 of 31 --

15
“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 of 31 --

16
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 of 31 --

17
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 of 31 --

18
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 of 31 --

19
“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 of 31 --

20
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 of 31 --

21
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 of 31 --

22
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 of 31 --

23
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 of 31 --

24
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 of 31 --

25
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 of 31 --

26
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 of 31 --

27
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 of 31 --

28
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 of 31 --

29
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 of 31 --

30
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 of 31 --

31
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 of 31 --