April 3, 2023 – A man who was fired one day after informing his employer about an allegedly racist remark made by his supervisor is entitled to take his retaliation claims to a jury, the U.S Court of Appeals for the Seventh Circuit has ruled.
In Xiong v. The Board of Regents of the University of Wisconsin System, No. 22-1271 (March 9, 2023), the Seventh Circuit held (2-1) that the plaintiff had forfeited his racial discrimination claim but not his retaliation claim.
The decision came on a vote of 2-1. Judge Michael Scudder wrote the majority opinion, joined by Judge Candace Jackson-Awikumi. Judge Thomas Kirsch dissented in part.
Butting Heads with the Boss
In October 2018, U.W.-Oshkosh (University) hired Brian Xiong as its director of affirmative action. Xiong is Hmong and speaks English as a second language.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Among Xiong’s duties as the director of affirmative action was ensuring compliance with the University’s affirmative action plan and creating policies that were consistent with the plan.
Xiong reported to Shawna Kuether, the University’s associate vice-chancellor of human resources.
In December 2018, Kuether determined that an investigation report written by Xiong suffered from poor quality.
Then, in February 2019, Xiong presented Kuether with a self-assessment that ran to 175 pages in length. The self-assessment was part of Xiong’s annual performance review.
In the self-assessment, Hmong claimed that he was being paid less than he should have been paid because he was Hmong and Asian.
A Disputed Hire
Also in February 2019, Xiong decided to hire Natasha Aguilera as a training and compliance officer.
Xiong chose Augilera because she was a lawyer and would bring diversity to the HR department, where the employees were mostly white.
But on March 1, Kuether emailed Xiong and told him to pause Aguilera’s hiring.
Xiong and Kuether met on March 4. Xiong alleged that Kuether told him that “people of color are not a good fit” for HR positions. Kuether denied saying that.
Xiong emailed Kuether and insinuated that her motivation in questioning his selection of Aguilera was race. Xiong copied James Fletcher, the University’s vice-chancellor of finance and administration, on the email.
Later the same day, Xiong emailed Fletcher and demanded a change in the department’s reporting structure with him no longer reporting to Kuether.
Fletcher met with Xiong on March 6, 2019. Xiong said he told Fletcher about Kuether’s alleged comment regarding people of color being a bad fit with HR; Fletcher denies hearing about that comment.
Xiong said he also discussed with Fletcher broader issues regarding the HR department’s hiring and promotion policies – issues he said could open the University to legal liability.
On March 7, Fletcher met with the chancellor and an attorney from the University’s general counsel office. Fletcher said that he’d decided to fire Xiong, subject to reviewing any positive information contained in Kuether’s written performance review of Xiong.
Fletcher fired Xiong on March 12, citing Xiong’s insubordination and poor work performance.
One year later, Xiong sued the University in the U.S. District Court for the Western District of Wisconsin under Title VII of the Civil Rights Act of 1964. Xiong claimed that the University had both illegally discriminated and retaliated against him.
The district court granted the University’s motion for summary judgment on both of Xiong’s claims. Xiong appealed.
Xiong Forfeited Discrimination Claim
Judge Scudder began his opinion for the majority by pointing out that Xiong had expanded his argument regarding the discrimination claim on appeal.
In his complaint, Scudder wrote, Xiong claimed the University was lying about why it fired him “but stopped short of taking the added, necessary step of pointing to evidence that the purported lie masked a proscribed reason for him being fired.”
On appeal however, Judge Scudder noted, Xiong cited examples from which a jury could infer that the University was actually motivated by Xiong’s ethnicity when it fired him.
Scudder concluded that Xiong had forfeited the discrimination claim by not including those examples in his complaint.
“Although we can accept a ‘new twist’ on an argument advanced in the district court … a litigant cannot raise entirely new arguments on appeal,” Judge Scudder wrote.
Retaliation Claim Survives
With regard to Xiong’s retaliation claim, Scudder explained that Xiong must show that:
he engaged in activity protected by a statute;
he suffered a materially adverse employment action; and
there was a causal link between the two.
Xiong’s alleged relaying of Kuether’s alleged statement about people of color being a bad fit with HR to Fletcher was statutorily protected, Judge Scudder concluded.
And the fact that Fletcher fired Xiong one day after Xiong allegedly relayed Kuether’s statement to him, Scudder reasoned, was enough to give rise to a finding of causation.
That Xiong re-stated his unwillingness to continue reporting to Kuether – the basis for Fletcher’s determination that Xiong had been insubordinate – didn’t matter, at least at the summary judgment stage, Judge Scudder explained.
“A jury could find that Fletcher decided to fire Xiong because of insubordination and his complaints about Kuether’s comments,” Scudder wrote.
“It is up to a jury, not a court at summary judgment, to unravel the competing, and perhaps intertwined, narratives as to why Fletcher decided to take that action.”
Judge Scudder instructed the district court that on remand, the analysis of Xiong’s retaliation claim should focus on Fletcher’s motivation in firing him.
Dissent: Proximity Not Enough
In his dissent, Judge Kirsch argued that the majority was wrong to rest its analysis regarding Xiong’s retaliation claim on the proximity of Fletcher’s decision to fire Xiong to the meeting between the two men.
“While a plaintiff may survive summary judgment by offering evidence of suspicious timing, temporary proximity alone is insufficient without evidence that makes it suspicious,” Kirsch wrote.