Xiong v. Board of Regents of the University of Wisconsin System, No. 22-1271 (7th Cir. 2023)Annotate this Case
Xiong is Hmong and speaks English as a second language. He joined the University of Wisconsin Oshkosh as its Director of Affirmative Action in 2018, reporting to Kuether, Associate Vice Chancellor of Human Resources. Kuether found Xiong’s work to be of poor quality. Xiong gave Kuether a self-assessment as part of his annual performance review in which he claimed he was being paid less because he is Hmong. Kuether canceled his review meeting, declined to reschedule it, and did not share the final written performance review with him.
When Xiong wanted to hire a compliance officer who had a law degree and would add diversity to the HR department, which was primarily white, Kuether questioned Xiong’s judgment. Xiong recalls Kuether saying “people of color are not a good fit.” Kuether denies saying anything like that. After multiple cross-accusations, Xiong demanded that he no longer report to Kuether. Xiong says he also raised concerns about the HR department’s hiring and promotion policies. The next day, Xiong was terminated for insubordination and poor work performance.
Xiong sued, alleging discrimination and retaliation under Title VII. The Seventh Circuit reversed, in part, summary judgment in favor of the University. Because the University fired Xiong one day after his whistleblowing, a reasonable jury could infer that his termination was retaliatory. Employers often have mixed motives for adverse actions against employees. The existence of both prohibited and permissible justifications reserves the question for a jury.