People For the American Way

Biden Judge Casts Deciding Vote to Give Employee the Opportunity to Prove He was Fired Because of Improper Retaliation

News and Analysis
Biden Judge Casts Deciding Vote to Give Employee the Opportunity to Prove He was Fired Because of Improper Retaliation

Judge Candace Jackson-Akiwumi, nominated by President Biden for the Seventh Circuit court of appeals, cast the deciding vote that gave  a University of Wisconsin employee the chance to prove that he was improperly fired in retaliation for raising complaints about employment discrimination. Officials fired him “just one day” after his “whistleblowing.” The March 2023 Seventh Circuit decision was in Xiong v Board of Regents.


What is the case about?                                                                                                                                       

 Brian Xiong worked in the human resources (HR) department as director of affirmative action at the University of Wisconsin at Oshkosh starting in fall 2018. “[T]ension” grew between him and his supervisor on various issues. On March 6, 2019, Xiong met with Vice-Chancellor James Fletcher and asked for a “change in reporting structure” so he would no longer report to the supervisor. Xiong stated that he also raised “broader concerns” with Fletcher about discrimination in HR hiring and promotion practices, stating that the University could face “legal liability” as a result.

Literally the next day, on March 7, Fletcher met with three other officials, including the chancellor, and announced that he had decided to fire Xiong. He did so, and Xiong filed suit against the University, raising discrimination and retaliation claims under federal anti-discrimination law. The district court granted summary judgment without a trial to the University on both of these claims, and Xiong appealed.


What did the Seventh Circuit do and why was Jackson-Akiwumi’s vote important?

 All three judges on the Seventh Circuit panel agreed to uphold the lower court on the discrimination claim. But in a 2-1 decision, the majority reversed the district court on Xiong’s retaliation claim and ruled that he should have the opportunity to present that issue to a jury. Judge Jackson-Akiwumi cast the deciding vote, with a dissent by Trump judge Thomas Kirsch.

The majority explained that particularly because the university “chose to fire” Xiong “just one day after” his “whistleblowing” on discriminatory practices, a “reasonable jury” could decide that “his termination was retaliatory.” Although there may also have been permissible motives for the firing, the majority continued, the “existence of both prohibited and permissible justifications reserves the question for a jury to resolve” as to whether the university would have fired Xiong “absent his complaint about Title VII violations.”

The panel majority disagreed with the lower court and the dissent that a judge could properly decide whether Xiong’s complaints caused his firing. Based on past precedent, the majority explained, “[i]t is up to the jury, not a court at summary judgment,” to decide whether Xiong would have been fired if he had not blown the whistle on alleged discriminatory practices. The record shows that he had raised a “genuine dispute of material fact” and a “jury should decide” the issue.

The majority decision and Judge Akiwumi-Jackson’s deciding vote give Brian Xiong the opportunity to prove to a jury that he was improperly fired in violation of Title VII’s anti-retaliation provisions. In addition, it provides important precedent in the Seventh Circuit to reinforce the principle that such issues should be resolved by juries after a full trial, not judges granting summary judgment for employers. The ruling provides another illustration of the importance of promptly confirming fair-minded judicial nominees like Judge Jackson-Akiwumi  by President Biden.


Biden judges, employment protections