                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                       No. 18-1821


                                       XU FENG,

                                                Appellant

                                           v.

                            UNIVERSITY OF DELAWARE

                                 ________________

                     Appeal from the United States District Court
                               for the District of Delaware
                        (D.C. Civil Action No. 1-16-cv-00664)
                    District Judge: Honorable Eduardo C. Robreno


                                Argued March 6, 2019

           Before: AMBRO, HARDIMAN, and FUENTES, Circuit Judges

                            (Opinion filed: August 28, 2019)

Jason J. Bach
The Bach Law Firm, LLC
7881 West Charleston Blvd, Suite 165
Las Vegas, NV 89117

Stephanie Denzel (Argued)
253 Montelo Road
Memphis TN 38120

       Counsel for Appellant
Selena E. Molina
James D. Taylor, Jr. (Argued)
Saul Ewing Arnstein & Lehr
1201 North Market Street, Suite 2300
Wilmington, DE 19801

       Counsel for Appellee

                                    ________________

                                        OPINION *


AMBRO, Circuit Judge

       Xu Feng is a Chinese national who came to the United States in 2013 for post-

graduate studies following undergraduate education in his native country. After attending

a prep class at the University of California – Irvine, Feng enrolled in a master’s program

in social studies and world history at the University of Delaware beginning in the summer

of 2014. The program was designed for aspiring high school teachers who were actively

working and thus could only participate part-time. It required students to take two

courses during the summer session and one course each in the fall and the spring.

       At first Feng did well in the program, but at the start of the 2014 fall semester the

University informed him that, in order to maintain his “full-time” student standing and

thereby maintain his immigration status, he had to enroll in three courses instead of one.

Feng’s performance plummeted, and he was eventually expelled from the program under

the University’s academic standing policies. He then brought this action against the




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
University, alleging national origin discrimination under Title VI of the Civil Rights Act,

42 U.S.C. § 2000d et seq., as well as state-law claims for breach of contract, unjust

enrichment, and fraud. The District Court granted summary judgment to the University,

reasoning as to the federal discrimination claim that Feng had failed to provide valid

comparator evidence. Undoubtedly Feng’s case would have been stronger with that

evidence. But a discrimination plaintiff like Feng is not required to use that method, or

any particular method, to prove his case. Thus we vacate the grant of summary judgment

as to the Title VI claim, but affirm summary judgment on the state-law claims for

substantially the reasons stated by the District Court.

       Title VI provides that “[n]o person in the United States shall, on the ground of

race, color, or national origin, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance.” 42 U.S.C. § 2000d. 1 Cases under Title VI are governed by the

same framework as those under other federal civil rights laws such as Title VII, which

covers employment discrimination claims. See, e.g., Hankins v. Temple Univ. (Health

Sciences Center), 829 F.2d 437, 440 (3d Cir. 1987) (applying McDonnell Douglas

framework to case brought under both Title VI and Title VII); NAACP v. Med. Ctr., Inc.,

657 F.2d 1322, 1336 (3d Cir. 1981) (en banc) (discussing symmetries between Title VI

and Title VII standards).




1
 The parties do not dispute that the University of Delaware receives federal assistance
and is therefore covered by Title VI.
                                             3
       Where a plaintiff relies on indirect proof of discrimination, this means we apply

the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Plaintiffs must first show a prima facie case, generally meaning that they

suffered some adverse action under circumstances suggesting that the action was related

to their membership in a protected group. Id. at 802. This is not a heavy burden. Id.

The defendant must then give a “legitimate, nondiscriminatory” reason for its actions. Id.

at 802–03. Once this is done, the burden shifts back to the plaintiff to show that the

reason given “was in fact pretext.” Id. at 804.

       When a plaintiff presents direct evidence that his treatment was based on race or

some other protected classification, a different standard applies. See Price Waterhouse v.

Hopkins, 490 U.S. 228, 270 (1989) (O’Connor, J., concurring in the judgment) (noting

the discrepancy between the two frameworks). The defendant must show by a

preponderance of the evidence that it would have reached the same result even without

taking that improper consideration into account. Id. at 252–53. Unlike McDonnell

Douglas, this is a true burden of proof, not merely a burden of production. Id. at 270

(O’Connor, J., concurring in the judgment).

       The District Court assumed that the McDonnell Douglas framework applies to

Feng’s discrimination claim. 2 It then framed the elements of his prima facie case as

whether:

       (1) he was a member of a protected class;



2
  Feng does not challenge the applicability of the McDonnell Douglas framework to his
claim, and we do not consider whether that is the proper framework applicable here.
                                             4
       (2) he was qualified to continue the pursuit of his education;

       (3) he was treated differently than similarly situated students who were not

       members of the protected class; and

       (4) he suffered an adverse action.

See Feng v. Univ. of Del., 2018 WL 1462224, at *1 (D. Del. 2018). It then found that

“[w]hile Plaintiff’s discrimination claim suffers from several infirmities, one primary

flaw is that he has not established a prima facie case since he, inter alia, has failed to

show he was treated differently than similarly situated students who were not members of

his protected class.” Id. The Court held that “[t]he proper comparator class is non-

Chinese students in the program whose GPA fell below the required 2.0,” and that

because Feng provided no evidence of any such individuals, his discrimination claim

“must fail.” Id.

       “Although comparative evidence is often highly probative of discrimination, it is

not an essential element of a plaintiff’s case.” Anderson v. Wachovia Mortg. Corp., 621

F.3d 261, 268–69 (3d Cir. 2010) (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344,

353 (3d Cir. 1999)). Instead, “the permissible evidence . . . ‘may take a variety of

forms.’” Id. at 270 (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 186

(1989)). The Second Circuit has expounded at length on the reasons why comparator

evidence is not indispensable, namely that “the ultimate issue is the reasons for the

individual plaintiff’s treatment, not the relative treatment of different groups.” Brown v.

Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (emphasis in original). Thus, in the

employment discrimination context “discrimination against one employee cannot be

                                               5
cured, or disproven, solely by favorable, or equitable, treatment of other employees of the

same race or sex. . . . And, whether an employee discriminates against only a subset of a

protected class, or discriminates inconsistently, Title VII nevertheless protects any

individual so long as that individual is mistreated because of her sex.” Id. at 252–53

(citation omitted). And, conversely, there is no requirement that a plaintiff in, for

example, a sex discrimination case show that the defendant has “treated similarly situated

men differently.” Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107,

121 (2d Cir. 2004). 3

       In this context, we vacate the grant of summary judgment as to Feng’s Title VI

discrimination claim. On remand the District Court can engage in additional fact-finding

or, as necessary, discovery regarding an issue that came to our attention after oral

argument: the source of the requirement that Feng take three courses per semester to

maintain his immigration status. Although both parties’ briefing seemingly took for

granted that this requirement came from federal law, the regulations in question appear to

allow the University to determine what qualifies as a “full course of study.” See 8 C.F.R.

§ 214.2(f)(6)(i)(A). Rather than attempting to disentangle the facts for ourselves, or




3
  Following its citation of authority back to the source, it appears that the District Court’s
contrary framing of Feng’s prima facie case ultimately derived from Bell v. Ohio State
Univ., 351 F.3d 240 (6th Cir. 2003). But that case only held, citing Mitchell v. Toledo
Hosp., 964 F.2d 577, 582 (6th Cir. 1992), that “a plaintiff may substitute for the fourth
element in the typical McDonnell Douglas framework evidence that similarly situated
individuals outside the protected class received better treatment.” Bell, 351 F.3d at 253.
It does not follow, however, that this is a required element in every discrimination case
under McDonnell Douglas, and in any event Bell is a Sixth Circuit case that could not
control over our contrary precedent in Anderson.
                                               6
determining what effect they have on the viability of Feng’s discrimination claim, we

leave that task in the first instance to the District Court.

       We do, however, affirm the Court’s grant of summary judgment as to Feng’s three

state-law claims for substantially the reasons it stated. Feng’s reinstatement agreement

did not bind the University to any particular action, and thus cannot support a breach-of-

contract claim, both because it likely was not an enforceable contract and because the

University cannot have breached it in any event. A university is not unjustly enriched

when a student pays tuition to attend but ultimately does not receive a degree. And there

is nothing in the record indicating that the University made any knowingly false

representations to Feng. Hence his claims for breach of contract, unjust enrichment, and

fraud all fail.

       Thus we affirm in part but vacate and remand in part.




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