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Xu v. Board of Regents of University of Wisconsin System

United States District Court, W.D. Wisconsin

January 22, 2018

YE XU, Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Pro se plaintiff Ye Xu, a librarian at the University of Wisconsin-Madison, alleges that administrators at the University of Wisconsin System discriminated against her on the basis of her race and national origin. She brings Title VII claims for disparate treatment, retaliation, and hostile work environment. At the root of her complaint is a disagreement whether a Japanese-language newspaper published in Taiwan during the period of Japanese control should be categorized under “Taiwan” or under “China.” Xu contends that workplace conflict following this dispute is a manifestation of discrimination against her because she was born in mainland China. After considering the parties' briefs and supporting evidence, I will grant defendant's motion for summary judgment. No reasonable jury could conclude on the evidence before me that library administrators discriminated against Xu or subjected her to a hostile work environment.

         PRELIMINARY MATTERS

         A. Motion to compel

         Xu has filed a motion to compel defendant to more adequately answer parts of her second set of requests for admission and for production of documents, which she served on defendant in July 2017. Dkt. 24. But the motion to compel comes far too late to consider before issuing a decision on summary judgment.

         Xu filed the motion to compel on November 29, 2017, after her original August 14 summary judgment response deadline and even after the extended November 13 deadline I gave her to submit an amended summary judgment response. In its preliminary pretrial conference order, the court warned Xu that discovery disputes would need to be timely raised. See Dkt. 8, at 7 (“If the parties do not bring discovery problems to the court's attention quickly, then they cannot complain that they ran out of time to get information that they needed for summary judgment or for trial.”). The parties' summary judgment briefing is complete and ready for review. Because I will grant summary judgment to defendant, there is no need to consider Xu's motion to compel any further.

         B. Adequacy of Xu's summary judgment response

         Xu's original response to defendant's motion for summary judgment was inadequate; her responses to defendant's proposed findings of fact, see Dkt. 16, were actually long legal arguments responding to statements defendant made in its brief. In an October 25, 2017 order, I granted defendant's motion for an order directing Xu to file a new summary judgment response. Dkt. 19. Defendant contends that I should disregard many of Xu's new responses to its findings of fact, Dkt. 21, as “largely non-responsive and unsupported by any admissible evidence.” Dkt. 22, at 1. Xu's new responses are not perfect, but they are not as flawed as defendant suggests. Xu begins that document by stating under penalty of perjury that her following statements are true, essentially converting that document into a declaration. I will credit all of Xu's statements that fall within her personal knowledge. And much of her other statements refer to exhibits submitted by either side, so I will consider those as well. Ultimately, as I will explain below, Xu's problem is not with the form of her submissions; it is that the evidence simply is not enough to allow a reasonable jury to conclude that defendant discriminated against her.

         C. Disability discrimination

         In its summary judgment brief, the state says that Xu's discovery responses suggested that she might be attempting to bring a claim for disability discrimination, under the theory that the library did not do enough to accommodate her after the workplace altercations made her ill. Xu's response is somewhat unclear, but I take her to be saying that she was not disabled and that the library actually misled her by suggesting she seek a disability accommodation rather than addressing her complaints of racial bias head on. But even if it were her intention to bring a disability discrimination claim, I would not allow her to do so at this point. Her complaint contains no trace of an allegation that could plausibly support a disability discrimination claim. And I will not entertain brand-new claims at summary judgment. See Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012) (“[A] plaintiff ‘may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.'” (quoting Grayson v. O'Neill, 308 F.3d 808, 817 (7th Cir. 2002))).

         UNDISPUTED FACTS

         Plaintiff Ye Xu is an Asian woman who was born in China. She also goes by the name Dianna. In 2006, Xu gave up her Chinese citizenship and became a naturalized United States citizen. Xu has worked for the University of Wisconsin-Madison since 2006 as a librarian in the East Asian studies program. In 2010, the Office of the Chancellor offered Xu an indefinite appointment with the General Library System.

         A. Earlier incidents

         Although this case is most directly about alleged discrimination against Xu following a 2015 decision about the classification of certain library materials, the parties provide some facts detailing Xu's history with UW-Madison and previous incidents of perceived discrimination.

         Between 2006 and 2010, Xu received pay increases as approved by the UW System Administration. But Xu states that there were two several-month periods during which she took on increased workloads for departing coworkers yet was not given increased pay. Xu claims she was the only staff member who did not receive salary increases due to added responsibilities. The extremely long hours Xu worked contributed to her suffering from severe asthma attacks.

         Xu believes that her supervisor for at least part of this time, Mary Rader, discriminated against her by (1) considering Xu's concerns about her long hours to be “complaining”; (2) hiring a replacement for the Japanese studies librarian position, one of the open positions that Xu had taken on, without notifying Xu of the hire; and (3) giving other employees some tasks that should have belonged to Xu. The Japanese studies replacement also would not cooperate with Xu and falsely told others that Xu had pushed the previous librarian out of the job.

         In November 2009, Xu met with library administration about her complaints about Rader's alleged discrimination. Xu says that she was told, “You are not allowed to make a complaint that the Library discriminated against you. If you believe it, you should bring a lawsuit. We have a number of offices on campus handling complaints. If you don't use these services but keep complaining, we will sue you.” Dkt. 21, at 25-26.

         In December 2010, Rader suggested that Xu should not have taken time off to be with her mother during a medical emergency that led to her death. Xu sent a series of emails to administration staff complaining about Rader and asking to be supervised by someone else. Xu met with Nancy Graff Schultz, the General Library Systems associate director for business administration, who told Xu that Xu used inappropriate inflammatory language in making her complaints.

         In March 2011, at both Xu's and Rader's request, the administration changed Xu's supervisor to Lisa Saywell. But Graff Schultz said that the allegations against Rader were investigated and determined to be unfounded, and that additional unfounded claims would not be tolerated.

         Defendant says that Xu did not have any issues with Saywell, but Xu disagrees. Xu says that she was forced to abandon a planned extended vacation because Saywell insinuated that she should only take her vacation time “a couple of days here and there.” Yet Saywell took long vacations herself.

         Karla Strand began serving as Xu's supervisor around September 1, 2015, and the events at the core of Xu's claims took place while Strand was Xu's immediate supervisor. A few days before Strand formally became Xu's supervisor, a manager from the library cataloging department emailed Strand to tell her that an employee of that department and Xu had exchanged emails that Xu said showed that the employee (who was Taiwanese) was prejudiced against those from mainland China. The manager told Xu that he was looking into the situation and suggested that Xu not communicate directly with the employee. The record does not contain further information about this incident.

         B. Taiwan database incident

         On September 16, 2015, a student submitted a request to have the database “Taiwan Nichinichi Shinpo (1898-1944)” recategorized on the library website. Taiwan Nichinichi Shinpo was a Japanese-language official newspaper of the Taiwanese government while it was under Japanese colonial rule.[1] At the time, the East Asia area of the library's database catalog included headings for Chinese, Japanese, and Korean library resources. The Taiwan Nichinichi Shinpo database had been categorized the heading “Specific Databases - China.” The student asked that it be categorized under a new heading, “Specific Databases - Taiwan.” The request was forwarded to Xu on September 16, 2015.

         Two days later, Xu forwarded the email to Strand, and explained why the Taiwan Nichinichi Shinpo database was listed under the “Specific Databases - China” heading. Xu said that she based this decision on the 1979 “Joint Communique of the United States of America and the People's Republic of China” and United Nations General Assembly resolution 2758, which recognized the People's Republic of China. Xu explained that she did not want to participate in political debate and requested confirmation from Strand if her decision was consistent with Strand's direction.

         After receiving the request and Xu's response, Strand researched how other university libraries organized Taiwanese materials. Specifically, Strand researched whether other university libraries had a Taiwan Nichinichi Shinpo database, and if so, how it was categorized. Strand reviewed websites and databases maintained by numerous top research universities including the University of California-Irvine, Duke, Yale, the University of Chicago, New York University, the University of Texas at Austin, Stanford, and UCLA, among others. Several major universities categorized it under Japanese studies. Strand says that some universities placed it under a Taiwan heading, but she does not provide any evidence showing this to be the case. Xu says that no university did this and provides printouts of other universities, none of which showed a separate Taiwan heading. Xu also provides documents from the Library of Congress suggesting that it categorizes Taiwanese materials under a more general China heading.

         Strand also researched what universities had Taiwan studies programs or initiatives such as the one at UW-Madison. She says that many prestigious universities offered Taiwan-focused programs, but does not provide any evidence directly showing this to be the case. Xu appears to agree that there are other major universities with Taiwan studies programs, but maintains that none of the universities mentioned created an independent Taiwan heading cataloging East Asian resources.

         Strand also found an online research guide created by Xu that had a separate box with the heading “Useful Resources - Taiwan.” Strand says this helped her determine that it “should not be a problem” to do something similar for East Asia databases on the library's website. But Xu says that the Taiwan heading in the guide actually fell under the larger China heading.

         Xu met with Strand in Strand's office on September 21, 2015, to discuss the database issue. Xu remained adamant that the database should remain under the China heading and ...


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