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New Third Circuit Opinion Gets Back to Basics on Pretext

Pittsburgh Employment Lawyer
Qin, a Chinese national, worked as a software architect at Vertex from October 2000 until his termination in May 2019. Despite being the most educated in his group, Qin remained at the entry-level position for nearly 19 years without a promotion. In 2018, Vertex transitioned to a new, more traditional management structure that emphasized concrete deliverables and accountability. 

Qin alleged that he experienced a hostile work environment, citing instances where coworkers called him "China Man" and a coworker once said "Why don't you go back to China?" when Qin suggested using technology from China. Qin was denied a promotion in 2004 without explanation and again in 2015 despite meeting the job requirements and receiving a recommendation.

In February 2018, Qin's manager, Harter, agreed to recommend him for a promotion at the end of the year if he met certain goals. In October 2018, Qin asked Harter if his Chinese nationality was the reason for not being promoted. Harter referred Qin to HR. In December 2018, Qin met with HR to inquire about discrimination reporting procedures.

Vertex's CTO expressed doubts about Qin's promotion and deferred the decision until after the yearly review process. Qin initially received a "Strong Contributor" rating from Harter, but it was later changed to "Usually Meets Expectations" by the calibration team, partly based on a negative review from Qin's coworker, Hart. 

In February 2019, Qin received his negative evaluation and was given the option to undertake a Performance Improvement Plan (PIP) or accept termination with severance. Qin chose the PIP. In discussing the negative review, Hart attributed it to "cultural differences," which Qin understood as a reference to negative stereotypes about Chinese individuals.

On March 31, 2019, Qin complained to HR that Hart's review was racially motivated and based on stereotypes. HR investigated but concluded that while the comments were inappropriate, they were not discriminatory. The comments were removed from Qin's review, but his rating remained the same, and he was not taken off the PIP.

Qin faced barriers in completing his PIP, such as difficulty identifying decision-makers and accessing stakeholders. He was ultimately terminated on May 16, 2019, for failing to meet the PIP goals. Another non-Chinese employee, Yawe, who also received a "Usually Meets Expectations" rating, was not put on a PIP or terminated.

The District Court granted summary judgment to the employer on all of Qin's claims. On appeal, the Third Circuit reversed as to all claims but one.

The Third Circuit's opinion reminds practitioners of several important points:
  1. Deviations from statistical norms can be evidence of discrimination. The court found it relevant, for example, that on average, entry-level architechts were promoted to senior architects after about 8 years, and then promoted again after about 6 years. Qin had performed satisfactorily for 19 years and was never promoted.
  2. One comparator can be enough. The court said that a reasonable jury could infer discrimination in part based on the employer's different treatment of one similarly-situated non-Chinese co-worker. The co-worker was similarly-situated because he and Qin shared the same supervisor, had similar job duties and had similar performance reviews. The court rejected the employer's effort to distinguish the comparator based on his work on different assignments and short tenure of employment.
  3. Conflicts in testimony as to who influenced a performance review can support a finding of pretext.
  4. Timing can be relevant. Qin worked satisfactorily for 18 years and then when he was up for promotion, he was put on a PIP and then fired.
  5. An inference of pretext arises when the employer creates barriers to successful completion of a PIP.
  6. Asking whether the denial of promotion was because of a protected characteristic can be protected activity if the employer treats it as such.
  7. Instant retaliation is not required. In many cases, an employer's first opportunity to retaliate does not arise until substantial time has passed.  

Altogether, the court's opinion is well-reasoned, thorough and a must read for Pittsburgh employment lawyers.