In a split opinion, a federal appeals court on Thursday reinstated the retaliation charge filed by a University of Wisconsin employee who was fired shortly after he complained about a supervisor’s alleged racist comment.
Brian Xiong, who is Hmong and speaks English as a second language, joined the University of Wisconsin as its director of affirmative action in October 2018, according to the ruling by the 7th U.S. Circuit Court of Appeals in Chicago. Brian Xiong v. Board of Regents of the University of Wisconsin System.
He developed a strained relationship with his supervisor, which came to a head when she questioned Mr. Xiong’s judgment in selecting a Latina woman over two white women as training and compliance officer to work under him.
In a meeting with a university chancellor, where he demanded a change in the reporting structure, he allegedly said that his supervisor had told him that people of color do not fit well in human relations.
The next day, the vice chancellor told other university leaders that he had tentatively decided to fire Xiong, and Xiong was fired a few days later.
Xiong sued the university in U.S. District Court in Madison, Wisconsin, alleging discrimination and retaliation under Title VII of the Civil Rights Act of 1
964. The district court ruled in favor of the university.The three-judge panel affirmed the dismissal of the discrimination charge, but two judges reinstated the retaliation claim. “A jury could find that (the vice chancellor) decided to fire Xiong for insubordination and his complaint about his supervisor’s comments.
“It is up to the jury, not a summary judgment court, to sort out the competing, and perhaps intertwined, narratives as to why (the principal) decided not to take that action,” the opinion said, as it reversed the lower court.
The dissent said the majority “conflates temporal proximity with suspect timing” in concluding that Xiong established a prima facie case of retaliation because he complained about his supervisor the day before the university tentatively decided to fire him.
Attorneys in the case did not respond to a request for comment or could not be reached.
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