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Fired university employee’s retaliation charge reinstated

University of Wisconsin

In a divided opinion, a federal appeals court on Thursday reinstated the retaliation charge filed by a University of Wisconsin employee who was terminated 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 affirmative action director in October 2018, according to the ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Brian Xiong v. Board of Regents of the University of Wisconsin System.

He developed a tense 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 a training and compliance officer to work under him.

In a meeting with a university vice-chancellor, where he demanded a change in reporting structure, he allegedly said his supervisor had told him that people of color are not a good fit in human relations.

The next day, the vice chancellor told other university leaders he had tentatively decided to fire Mr. Xiong, and Mr. Xiong was terminated a few days later.

Mr. Xiong sued the university in U.S. District Court in Madison, Wisconsin, charging discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The district court ruled in the university’s favor.

The three-judge panel affirmed dismissal of the discrimination charge, but two judges reinstated the retaliation claim. “A jury could find that (the vice chancellor) decided to fire Xiong because of insubordination and his complaints about his supervisor’s comments. 

“It is up to the jury, not a court at summary judgment, to unravel the competing, and perhaps intertwined, narratives as to why (the vice chancellor) decided not to take that action,” the opinion said, in reversing the lower court.

The dissenting opinion said the majority “conflates temporal proximity with suspicious timing” in concluding Mr. 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.