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Qing Qin v. Vertex, Inc., 2024 U.S. App. LEXIS 10686, 2024 WL 1920379 (3d Cir. May 2, 2024) (Rendell, C.J.).

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 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.

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, 152 N.J. 490, 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.

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.

Because Qin has not provided direct evidence of discrimination, we next look to his circumstantial evidence of discrimination.

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 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.”).

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.” Qing Qin, 2022 U.S. Dist. LEXIS 189675, 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 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).

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.

Qin presented sufficient evidence to allow a reasonable jury to draw an inference of pretext .

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.

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.

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)).

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.

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.