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Xiong v. Fischer

United States Court of Appeals, Seventh Circuit

May 18, 2015

TOM BEU XIONG, Plaintiff-Appellant,
v.
JENNIFER A. FISCHER, et al., Defendants-Appellees

Argued: December 8, 2014.

Page 390

[Copyrighted Material Omitted]

Page 391

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:13-cv-00418-jdp - James D. Peterson, Judge.

For Tom Beu Xiong, Plaintiff - Appellant: Koua Vang, Attorney, Sun Prairie, WI.

For JENNIFER A. FISCHER, in her official capacity, Aging and Disability Resource Center of Dane County, Dane County, Wisconsin, Defendants - Appellees: Sheila M. Sullivan, Attorney, Timothy J. Yanacheck, Attorney, Bell, Moore & Richter, S.C., Madison, WI.

For Dane County Professional Social Workers Local 2634 Afscme, Defendant - Appellee: Aaron N. Halstead, Attorney, Hawks Quindel, S.C., Madison, WI.

Before BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge.[*]

OPINION

Page 392

BAUER, Circuit Judge.

Plaintiff-appellant, Tom Beu Xiong (" Xiong" ), is a former employee of defendant-appellee, Dane County Department of Human Services (" the Department" ), and former member of the defendant-appellee, Dane County Professional Social Workers, Local 2634, AFSCME, AFL-CIO (" the Union" ). Xiong appeals the dismissal of his claims of breach of duty of fair representation against the Union and breach of collective bargaining agreement against the Department, as well as various constitutional claims against Xiong's supervisor, Jennifer Fischer (" Fischer" ), the Union, and the Department (collectively " the defendants" ). We affirm.

I. BACKGROUND

This case arises out of the defendants' behavior toward Xiong before and after he was terminated from his job as a senior clinical social worker. Xiong began working for the Department as a social worker in 1990, serving primarily the elderly and physically disabled individuals. As a member of the Union, he was covered by a collective bargaining agreement (" CBA" ) that provided, among other things, that the Union would assist and represent employees throughout the pre-disciplinary, grievance, and termination processes.

In May 2012, Xiong's supervisor, Fischer, learned that Xiong had committed significant work rule violations. Notably, Fischer discovered that Xiong had forged her signature on a number of documents, called in sick to work after Fischer had explicitly denied his requests to be excused, failed to meet deadlines or complete paperwork related to an upcoming audit, attended divorce proceedings during work

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time without authorization, and moved a client from one family home to another without completing the required paperwork. As a result, Fischer sent a letter to Xiong on May 22, 2012, indicating that she had concerns related to his employment and requesting his presence at a pre-disciplinary meeting scheduled for May 24, 2012. The letter identified six areas of concern and nine work rules that Fischer believed Xiong had broken. Fischer also informed Xiong that, due to the nature of the concerns and potential violations, he would have an opportunity to respond to the allegations against him and to have a representative from the Union present at the meeting. Fischer sent copies of the letter to her supervisors, including Theresa Sanders (" Sanders" ), ...


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