Richard Schneiter v. Wisconsin Employment Relations Commission

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 26, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1387 Cir. Ct. No. 2022CV199

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

RICHARD SCHNEITER,

PLAINTIFF-APPELLANT,

V.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION AND
KEVIN CARR, SECRETARY WISCONSIN DEPARTMENT OF CORRECTIONS,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Columbia County:
TROY D. CROSS, Judge. Affirmed.

Before Kloppenburg, P.J., Nashold, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1387

¶1 PER CURIAM. Richard Schneiter was discharged from his
position as a deputy warden at the Wisconsin Department of Corrections (the
Department) after it was widely publicized that he had posted memes denigrating
Muslims on his Facebook page. The Wisconsin Employment Relations
Commission (the Commission), after an administrative hearing, affirmed the
Department’s decision to discharge Schneiter. Schneiter sought judicial review of
the Commission’s decision, and the circuit court ruled in favor of the Commission
and then-Department Secretary Kevin Carr (collectively, the respondents) and
affirmed. Schneiter appeals, arguing that there was not just cause to discharge him
without imposing progressive discipline and that he was denied due process. For
the reasons stated below, we affirm.

BACKGROUND

¶2 The following undisputed facts are derived from the evidence
presented at the hearing before a Commission hearing examiner, unless otherwise
noted.

¶3 Schneiter was the deputy warden for the Wisconsin Correctional
Center System (the Correctional Center System), which is part of the
Department’s Division of Adult Institutions. The Correctional Center System is a
network of 14 minimum-security facilities located across Wisconsin, the purpose
of which is “to prepare persons in [its] care … for safe and successful reintegration
into the community.”1 Schneiter had worked at the Department for 42 years,

1
STATE OF WIS. DEP’T OF CORR., Wisconsin Correctional Center System, https://doc.wi.
gov/Pages/OffenderInformation/AdultInstitutions/WisconsinCorrectionalCenterSystem.aspx (last
visited June 23, 2025).

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No. 2023AP1387

during which time he held several other positions prior to serving as deputy
warden for the Correctional Center System.

¶4 As deputy warden, Schneiter was required to visit Department
facilities and was responsible for supervising, hiring, training, evaluating, and
disciplining employees, as well as settling employee grievances. Schneiter was
also responsible for acting as a liaison between the Department and legislators,
government officials, and external organizations, and he was responsible for
ensuring compliance with Department policies, including those regarding civil
rights laws. This last duty included “[p]articipat[ing] in developing a plan to
maximize use of resources to recruit minority staff,” as well as “[e]stablish[ing]
expectations that will not tolerate prejudices, unfairness and harassment among
staff or between staff and inmates.”

¶5 During the relevant period, Department leadership sought as part of
its mission to focus on equity and inclusion. The “tag line” for the Department’s
vision statement was “Every Person – Every Family – Every Community
Matters.” In his role as deputy warden, Schneiter was responsible for
implementing the Department’s vision, mission, and core values, and Schneiter
served as a role model for those he supervised. Schneiter supervised a diverse
workplace that included, as relevant here, Muslim employees. Additionally, while
Schneiter was deputy warden, the Department had a diverse prison population,
which included Muslim inmates.

¶6 In July 2019, a reporter from the Milwaukee Journal Sentinel
contacted Schneiter. The reporter had obtained screenshots from one of
Schneiter’s Facebook friends of five memes that Schneiter had reposted on his

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Facebook page.2 The two memes on which the Commission ultimately based its
decision are shown below:

These memes were visible to Schneiter’s more than 1,200 Facebook friends, many
of whom were past or present Department employees.

¶7 Schneiter responded to the reporter using his Department email
account and spoke to the reporter on the telephone without authorization from his
superiors. That same day, the Milwaukee Journal Sentinel published an article
titled, “Deputy prison warden posts Facebook meme that compares Muslim
children to garbage.” The article included a screenshot of the meme described in

2
A “meme” is “an amusing or interesting item (such as a captioned picture or video) or
genre of items that is spread widely online especially through social media.” Meme, MERRIAM-
WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/meme (last visited
June 23, 2025).

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No. 2023AP1387

the article’s title and quoted Schneiter as saying, “That’s not funny. If anything,
it’s very offensive. But this is the type of stuff you see on Facebook. But it starts
discussion, which I try — which, I guess, that’s what I do.” The article also
reported that “Schneiter said his posts were being misinterpreted and he only
wanted to engage in discussions on controversial issues.” After the article was
published, then-Lieutenant Governor Mandela Barnes posted on social media that
Schneiter was “the one that has to be taken out. Too much of our nation’s system
of corrections is based on dehumanization. To add bigotry to the mix is dangerous
and cannot be tolerated.”

¶8 The day after the article was published, the Department initiated an
investigation into Schneiter’s conduct, and Makda Fessahaye, the Division of
Adult Institution’s then-administrator, placed Schneiter on paid administrative
leave. Fessahaye assigned two investigators, who reviewed the screenshots of
Schneiter’s posts and who interviewed Schneiter, Schneiter’s direct supervisor,
and two Department employees who were friends with Schneiter on Facebook.

¶9 The investigators concluded in an investigation report that Schneiter
had violated several workplaces rules. Pertinent here, the investigators concluded
that Schneiter violated Work Rule 25, which prohibits “[e]ngaging in outside
activities which may impair the employee’s independence of judgment or impair
the employee’s ability to perform his/her duties as an employee of the state.” 3

3
The investigators also concluded that Schneiter violated Work Rule 2—which requires
employees to comply with written policies and procedures—by violating the Department’s media
policy when he responded to the Milwaukee Journal Sentinel reporter, and that Schneiter violated
Work Rule 14, which prohibits “[i]ntimidating, interfering with, harassing, demeaning, treating
discourteously, or bullying; or using profane or abusive language in dealing with others.”
However, the Commission affirmed the Department’s discharge of Schneiter based on Schneiter’s
violation of Work Rule 25 without addressing whether Schneiter violated Work Rules 2 and 14.

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¶10 An infraction review team reviewed the investigation report and
agreed with the investigators’ conclusions, and a “predisciplinary meeting” took
place, at which Schneiter had the opportunity to provide mitigating evidence, and
at which Schneiter and his personal representative provided statements.

¶11 Following the predisciplinary meeting, a disciplinary action review
team reviewed the investigation report and, after considering the investigation and
the proceedings at the predisciplinary meeting, recommended that Schneiter be
discharged without imposing progressive discipline. The recommendation to skip
progressive discipline was made pursuant to the Department’s Executive Directive
2, which states that employees may be discharged without progressive discipline
for “serious acts of misconduct.” This includes “[g]ross negligence or conduct by
an employee which causes a substantial risk to the safety and security of [the
Department’s] facilities, staff, the community or inmates, offenders or juvenile
offenders under [the Department’s] care.”

¶12 The recommendation was ultimately considered by the Department’s
Office of the Secretary. After a meeting that included Department Secretary Karr
and Deputy Secretary Amy Pechacek, the Office of the Secretary supported the
recommendation to discharge Schneiter without progressive discipline.

¶13 In November 2019, the Department issued a termination letter,
signed by Pechacek. The letter stated, consistent with what the Department’s
investigators concluded, that Schneiter had violated Work Rule 25.4 The letter
stated, among other things, that Schneiter’s posts cast doubt on his ability to lead,

4
The letter also stated that Schneiter had violated Work Rules 2 and 14.

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No. 2023AP1387

“eliminated [Schneiter’s] ability to act as a role model and as a supervisor,” could
have interfered with the Department’s recruitment efforts, “diminished the
Department’s and the public’s ability to trust that [Schneiter was] able to perform
the duties of [his] position,” and “create[d] safety concerns” at Department
institutions.

¶14 Schneiter unsuccessfully challenged the Department’s decision
through a grievance process for state employees before appealing to the
Commission. A hearing examiner held a two-day hearing at which Schneiter was
represented by counsel. The Department called six witnesses, including Schneiter,
Fessahaye, Pechacek, and one of the investigators assigned to the Department’s
investigation.

¶15 Schneiter did not call any witnesses at the hearing, but was called
adversely by the Department. Schneiter testified that he posted political content to
his Facebook page because “sometimes you can learn a lot from debates, and that
was my intent, to promote debate or to continue a debate or to provide my
opinion.” Regarding the meme with the photo of the Muslim woman and two
bags of garbage, Schneiter described it as “offensive and demeaning to Muslims,”
and explained that he posted it to call attention to what he viewed as Facebook’s
inconsistent content moderation policies. Schneiter testified that his intent in
posting the “Bacon America Great Again” meme, which he described as
“inappropriate,” “was the same.” Schneiter testified that comments to his posts
would have reflected his intent and shown that the memes did not represent his
personal beliefs, but that the screenshots of his posts that were published in the
article did not contain these comments.

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No. 2023AP1387

¶16 The hearing examiner issued a proposed decision affirming
Schneiter’s discharge, to which Schneiter filed an objection. See WIS. STAT.
§ 227.46(2) (2023-24) (allowing for such an objection).5

¶17 The Commission issued a final decision and order and
accompanying memorandum that affirmed Schneiter’s discharge. The
Commission relied on the two memes shown above that denigrated Muslims, and
on Schneiter’s admission that these memes were offensive. The Commission
found that any of Schneiter’s Facebook friends, including several coworkers,
could see Schneiter’s posts of the memes. The Commission also found that
“Schneiter had an unauthorized conversation with a member of the media,” and
that on the same day, “a front-page story ran in the Milwaukee Journal Sentinel
with the headline ‘Deputy prison Warden posts Facebook meme that compares
Muslim children to garbage.’”

¶18 Tracking the language from Work Rule 25, the Commission
determined that “Schneiter engaged in outside activities which may impair the
employee’s independence of judgment or impair the employee’s ability to perform
his/her duties as an employee of the state.” The Commission also determined—
tracking language from Executive Directive 2, which allows discharge without
imposing progressive discipline—that “Schneiter was grossly negligent and
engaged in conduct which causes a substantial risk to the safety and security of
Department … facilities, staff, the community or inmates, offenders or juvenile
offenders.” Accordingly, the Commission concluded that the Department had just
cause to discharge Schneiter under WIS. STAT. § 230.34(1)(a) without imposing

5
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP1387

progressive discipline. We discuss the Commission’s decision in further detail
below.

¶19 Schneiter sought judicial review of the Commission’s decision. The
circuit court affirmed. Schneiter appeals.

DISCUSSION

¶20 Schneiter argues that there was not just cause to discharge him
without imposing progressive discipline. Schneiter also argues that he was denied
due process because he did not have notice that Work Rule 25 applied to his social
media use, the statement that then-Lieutenant Governor Mandela Barnes made on
social media after the Milwaukee Journal Sentinel article was published
improperly influenced the Department’s decision to discharge Schneiter, and the
hearing examiner was biased. We reject these arguments for the reasons that
follow.

I. Just cause for discharge without progressive discipline.

¶21 WISCONSIN STAT. § 230.34(1)(a) states:

An employee with permanent status in class … may be …
discharged … only for just cause. It is just cause to …
discharge … an employee for work performance or
personal conduct that is inadequate, unsuitable, or inferior,
as determined by the appointing authority, but only after
imposing progressive discipline that complies with the
administrator’s standards under [WIS. STAT.
§] 230.04(13m).

Pursuant to § 230.04(13m), the administrator of the Department of Administration,
Division of Personnel Management

shall establish standards for progressive discipline plans to
be prepared by all agencies and applied to all employees in
the classified service. The standards shall address

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No. 2023AP1387

progressive discipline for personal conduct and work
performance that is inadequate, unsuitable, or inferior. The
standards established under this subsection shall allow an
appointing authority to accelerate progressive discipline if
the inadequacy, unsuitability, or inferiority of the personal
conduct or work performance for which an employee is
being disciplined is severe.

The progressive discipline standards are set forth in the Wisconsin Human
Resources Handbook, which states that “[s]pecific agency policies and procedures
may escalate the level of progression up to and including termination.” Here, as
stated, Schneiter was discharged without progressive discipline for violating Work
Rule 25 and pursuant to the Department’s Executive Directive 2, which states that
employees may be discharged without progressive discipline for “serious acts of
misconduct,” including, as the Commission relied on here, “[g]ross negligence or
conduct … which causes substantial risk to the safety and security of [the
Department’s] facilities, staff, the community or inmates, offenders or juvenile
offenders under [the Department’s] care.” It is the appointing authority’s
burden—here, the Department’s—to prove that just cause exists to discharge the
employee without imposing progressive discipline. See Safransky v. State Pers.
Bd., 62 Wis. 2d 464, 472, 215 N.W.2d 379 (1974).

¶22 Schneiter argues that there was not just cause to discharge him
without imposing progressive discipline. Specifically, he argues that there was not
substantial evidence to support the Commission’s finding that he violated Work
Rule 25 or that his conduct was grossly negligent or a substantial safety and

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No. 2023AP1387

security risk such that the Department could discharge him pursuant to Executive
Directive 2 without imposing progressive discipline.6

¶23 When reviewing an agency’s findings of fact, we will “not substitute
[our] judgment for that of the agency as to the weight of the evidence on any
disputed finding of fact,” and we will only “set aside [the] agency action or
remand the case to the agency if [we] find[] that the agency’s action depends on
any finding of fact that is not supported by substantial evidence in the record.”
WIS. STAT. § 227.57(6). “The test is not whether a preponderance of the evidence
supports …[the Commission]’s determination, but whether reasonable minds
could arrive at the same conclusion reached by the [Commission].” Madison
Tchrs., Inc. v. WERC, 218 Wis. 2d 75, 85, 580 N.W.2d 375 (Ct. App. 1998); see
also Clean Wis., Inc. v. PSC, 2005 WI 93, ¶46, 282 Wis. 2d 250, 700 N.W.2d 768
(“An agency’s findings are supported by substantial evidence if a reasonable
person could arrive at the same conclusion as the agency, taking into account all
the evidence in the record.”); Bernhardt v. LIRC, 207 Wis. 2d 292, 298, 558
N.W.2d 874 (Ct. App. 1996) (“Substantial evidence is less of a burden than
preponderance of the evidence ….”). Our role is to search the record for evidence
supporting the agency’s factual determinations, “not to search for evidence against
them.” Robles v. Thomas Hribar Truck & Equip., Inc., 2020 WI App 74, ¶8, 394
Wis. 2d 761, 951 N.W.2d 853.

6
The parties do not dispute that these determinations are subject to the substantial
evidence test. Schneiter treats these determinations as findings of fact, and we accordingly do the
same.

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No. 2023AP1387

A. Substantial evidence supports the Commission’s finding
that Schneiter violated Work Rule 25.

¶24 As noted, the Commission found that Schneiter violated Work
Rule 25, which prohibits “[e]ngaging in outside activities which may impair the
employee[’]s independence of judgment or impair the employee’s ability to
perform his/her duties as an employee of the state.” Schneiter argues that the
finding that he violated Work Rule 25 is not supported by substantial evidence in
the record. For the reasons explained below, we conclude that substantial
evidence supports this finding.

¶25 In finding that Schneiter violated Work Rule 25, the Commission
relied on the testimony of Fessahaye and Pechacek. Fessahaye’s testimony
included the following. Fessahaye was responsible for the oversight and
management of the adult state prisons. In executing the Governor’s campaign
platform, the Department “had a focus of equity and inclusion, treating others with
dignity and respect, and really trying to recruit … a talented and diverse workforce
for the Department.” Consistent with these goals, the “tag line” for the
Department’s vision was “Every Person – Every Family – Every Community
Matters.” The Correctional Center System had a diverse work force, and
Schneiter supervised a diverse group of employees, including those who were
Muslim.

¶26 As a deputy warden, Schneiter was in a “career executive position,”
was a “high-level official,” and was held to a higher standard than correctional
officers or entry-level employees:

We did hold Mr. Schneiter and deputy wardens to a higher
standard than correctional officers and entry level
employees, in part because, especially as a deputy warden,
they were responsible for day-to-day operations at

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No. 2023AP1387

particular prisons and they were responsible for enforcing
certain policies, procedures, and carrying out the mission
and values of the [Department].

Pursuant to the Department’s harassment and discrimination policy, part of
Schneiter’s job responsibilities was to take seriously complaints and allegations
regarding violations of this policy—which might include jokes, epithets, slurs, and
negative stereotyping—and to intervene when violative conduct was observed.

¶27 Fessahaye believed that it was appropriate to discharge Schneiter
because:

I thought that Mr. Schneiter’s actions … poorly
reflected on the [Department]. I thought that his actions
could interfere with our mission, goals, and values, if not
undermine them, that it interfered with the public trust in
the [Department] and our relationships with members of the
community and organizations that we work with.

I thought that his actions could have compromised
safety and security at institutions if they believed that these
were the statements or sentiments of the [Department].

I thought that … by posting this, it really impaired
his ability to lead as a high-level employee within the
[Department] and that it really cast doubt as to his ability to
treat others with respect, dignity, fairness, impartiality.

… [H]e’s responsible for enforcing policies and
procedures for the [Department] and really holding up our
mission, values, and goals of the [D]epartment and he
effectively stomped on all of them when he posted what he
did.

And I also considered the amount of friends he had
on his Facebook, how many of those were [Department]
employees, subordinates of his, and what he publicly
admitted to the Milwaukee Journal Sentinel.

In addition, the Department has

an obligation to the public and they trust that we are
treating people with dignity and respect and that is
something that we say and try to uphold on a daily basis.

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And so these posts undermine our mission, values, and
goals. It also undermines our ability to recruit from a
diverse workforce from all over the state of Wisconsin and
to work with diverse communities that are ultimately trying
to assist us in caring for persons in our care.

¶28 Pechacek testified that she was “basically the chief operations
officer, so in charge of the day-to-day operations of 37 facilities, 134 field offices,
… approximately 22,000 persons in [the Department’s] care, 66,000 individuals
who were on community supervision,” as well as “the annual budget, which …
was about [$]1.2 billion, and … daily operations, policies, procedures, and
implementing the vision of Secretary Karr.”

¶29 Pechacek’s testimony also included the following. The
Department’s “motto” was “Every Person – Every Family – Every Community
Matters,” and “the mission of the [Department] is ensuring the safety of the
persons in [the Department’s] care, the safety of the public, and is focused on
rehabilitation and supporting those folks that are reintegrating into the community
and setting them up for success.” Like Fessahaye, Pechacek testified that
Schneiter was held to a higher standard because of his position:

So as an employee, he is expected to follow all the
policies and procedures…. And then as somebody in a
career executive position, he’s in a leadership position.

You know, as an employee alone he is held
accountable for the example that he [sets], but certainly in a
senior leadership position managing 14 facilities and
having direct reports and being in charge of the operations
of 14 different facilities, he is held to a very high standard
as a career executive.

¶30 Relevant to Schneiter’s ability to implement the Department’s
vision, mission, and core values, Schneiter’s posts were harmful to the
Department:

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No. 2023AP1387

So having a senior leader communicate beliefs that
are disparaging, discriminatory, harassing, demeaning, such
as this one where Muslim children are being compared to
garbage bags, certainly impacts anybody who is in our care
or employed by the [Department] or are partners with the
[Department] that may identify with these particular
groups.

Schneiter’s posts damaged the Department’s credibility: “Again, by
communicating discriminatory beliefs, mocking children and comparing them to
garbage, … this is completely against the mission and the vision and the values of
the [Department] and our goal to be equitable and fair.”

¶31 Schneiter “had undermined the mission of the agency, and his ability
to lead in an equitable and fair manner was questioned.” Schneiter’s posts and
their publicity adversely affected his ability to perform his supervisory duties
relating to discrimination and harassment complaints: “If somebody is posting
material that describes beliefs … which … compares Muslim children to garbage
bags, they are not going to be somebody who can fairly represent and equitably
treat individuals that identify with th[at] class[].” In addition, “supervisors are
expected to take all complaints and allegations seriously…. And it is hard to
imagine somebody who is comparing Muslim children to garbage bags, that if
somebody brought forward a discriminatory complaint to him about their religious
beliefs, that he has the judgment or credibility to conduct himself in a supervisory
manner.”

¶32 The testimony of Fessahaye and Pechacek was consistent with the
rationale for terminating Schneiter that was stated in his termination letter, which
the Commission also relied on when concluding that Schneiter’s conduct impaired
his ability to perform his duties as deputy warden. The termination letter states:

Den[i]gration of … Muslims … casts public doubt
about your ability to lead, casts public doubt about your

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No. 2023AP1387

ability to treat inmates, staff, and members of the public
fairly and impartially, sows discord and divisiveness, and
sets a poor example.

The effectiveness of the [Department] depends, in
part, on the respect and trust of the public, its employees,
and the offenders it supervises, that the [Department] will
conduct its affairs fairly, even-handedly, and without bias.
Your postings are of a nature that tends to have a
detrimental effect on establishing and maintaining strong
working relationships within a diverse workforce and with
diverse community partnerships. These postings could
additionally potentially interfere with [Department]
recruitment. Your postings – which were shared with
approximately 1,200 Facebook friends, many of whom are
[Department] employees, eliminated your ability to act as a
role model and as a supervisor. Any supervisory actions
you may take are now suspect.

The [Department’s] rehabilitative mission may also
be impaired when inmates become aware of apparent …
religious … animus on the part of [Department] employees.
Inmates may assume that the [Department]’s actions are a
product of bias, rather than well-founded and in pursuit of
its mission. Expression of animus of this nature
additionally creates safety concerns in the institutions.

¶33 A reasonable person, taking into account all of the evidence in the
record, could conclude, based on Fessahaye’s and Pechacek’s testimony, which
was consistent with the rationale stated in Schneiter’s termination letter, that
Schneiter’s posts and their publicity impaired Schneiter’s ability to perform his
duties by interfering with Schneiter’s ability to lead a diverse staff and to
effectively advance the Department’s mission and goals, including its recruitment
efforts, its rehabilitative efforts, and its ability to establish and maintain
community partnerships.

¶34 Accordingly, we conclude that substantial evidence supports the
Commission’s determination that Schneiter violated Work Rule 25. We reject
Schneiter’s arguments to the contrary.

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No. 2023AP1387

¶35 Schneiter argues that his conduct did not keep him from performing
his job responsibilities and that the Commission did not find as much. However,
to the extent that Schneiter means to suggest that his work was not affected after
his posts were publicized in the article, we note that Schneiter was placed on
administrative leave the day after the article was published. Moreover, Work
Rule 25 prohibits employees from “[e]ngaging in any outside activities … which
may impair … the employee’s ability to perform his/her duties ….” (Emphasis
added.) As the federal District Court for the Western District of Wisconsin stated
in addressing Schneiter’s same argument in the context of a First Amendment
claim, “Schneiter’s posts threatened relationships with many different groups of
people, and the potential consequences of allowing Schneiter to continue
representing the [D]epartment were serious. Defendants ‘need not wait until a riot
breaks out before acting to quell a dangerous situation.’” Schneiter v. Carr,
No. 21-CV-135-JDP, 2022 WL 1773484, at 18 (W.D. Wis. June 1, 2022) (quoting
Weicherding v. Riegel, 160 F.3d 1139, 1143 (7th Cir. 1998)); see also
Weicherding, 160 F.3d at 1143 (“The Supreme Court has ‘consistently given
greater deference to government predictions of harm’ when the government acts as
an employer instead of as a sovereign, and has ‘given substantial weight to
government employers’ reasonable predictions of disruption, even where the
speech involved a matter of public concern[.]’” (quoting Waters v. Churchill, 511
U.S. 661, 673 (1994))); Connick v. Myers, 461 U.S. 138, 152 (1983) (“[W]e do
not see the necessity for an employer to allow events to unfold to the extent that
the disruption of the office and the destruction of working relationships is manifest
before taking action.”).

¶36 Schneiter also appears to argue that there was not substantial
evidence that he violated Work Rule 25 because he posted the memes “to raise

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No. 2023AP1387

awareness of Facebook’s ridiculous content policies.” As he testified to at the
hearing, Schneiter suggests on appeal that comments posted in response to the
memes would reflect this claimed intent. However, aside from his own testimony,
Schneiter did not present any evidence during the hearing or the Department’s
investigation to show that his intent was to call attention to Facebook’s content
moderation policies. For example, Schneiter did not present as evidence the
relevant comments or call as a witness any of his more than 1,200 Facebook
friends to testify regarding these comments, and he does not dispute that he
deleted the posts that he asserts would have shown such an intent. More
fundamentally, Schneiter does not develop an argument as to the legal significance
of his claimed intent, and we reject Schneiter’s apparent argument on that basis.
See Clean Wis., 282 Wis. 2d 250, ¶180 n.40 (“We will not address undeveloped
arguments.”).

¶37 In sum on this issue, we conclude that substantial evidence supports
the Commission’s finding that Schneiter violated Work Rule 25.

B. Substantial evidence supports the Commission’s finding
that Schneiter’s conduct was grossly negligent and a
substantial safety and security risk such that the
Department could discharge him pursuant to Executive
Directive 2 without imposing progressive discipline.

¶38 As stated, the Commission determined that discharge without
progressive discipline was appropriate pursuant to Executive Directive 2, which
states that employees may be discharged without progressive discipline for
“serious acts of misconduct,” including, as the Commission relied on here,
“[g]ross negligence or conduct … which causes substantial risk to the safety and
security of [the Department’s] facilities, staff, the community or inmates,
offenders or juvenile offenders under [the Department’s] care.” Specifically, the

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No. 2023AP1387

Commission found that “Schneiter was grossly negligent and engaged in conduct
which causes a substantial risk to the safety and security of [Department] facilities,
staff, the community or inmates, offenders or juvenile offenders.”

¶39 Schneiter argues that the Department did not have just cause to
discharge him without imposing progressive discipline because his conduct did not
constitute gross negligence or cause a substantial safety or security risk. We
construe this as an argument that the Commission’s findings to the contrary are not
supported by substantial evidence. Notably, Schneiter does not dispute that if his
conduct did constitute gross negligence or cause a substantial safety and security
risk, it also constituted just cause to discharge him without first imposing
progressive discipline. Thus, we limit our discussion to whether substantial
evidence supports the Commission’s finding that Schneiter’s conduct was grossly
negligent and caused a substantial safety and security risk. For the reasons
explained below, we conclude that it does.

¶40 In finding that Schneiter’s conduct was grossly negligent and created
a substantial safety and security risk, the Commission again relied on the
testimony of Fessahaye and Pechacek. We conclude that this testimony provides
substantial evidence supporting the Commission’s findings.

¶41 In addition to the testimony set forth above, Fessahaye testified that
she believed that Schneiter’s actions constituted a serious act of misconduct that
justified terminating Schneiter without imposing progressive discipline because:

I thought that these posts were negligent. As a
high-level official in his role as deputy warden, I thought
these were reckless and that they could have posed a
serious risk not only to [Schneiter] but to others within the
[D]epartment if they believed that these were the views of
the [Department] and our staff.

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No. 2023AP1387

Consistent with this, Fessahaye testified that prisoners had access to the
Milwaukee Journal Sentinel and that one of the reasons that Schneiter was placed
on administrative leave while the Department’s investigation was pending was that
his safety could have been at risk “should he visit institutions.” As previously
noted, visiting institutions was part of Schneiter’s job duties.

¶42 Pechacek testified that she was provided with information regarding
assaults at Department institutions during weekly meetings, and that there were
“daily, weekly assaults.” Pechacek also testified that as a result of Schneiter’s
posts, she was concerned for Schneiter’s safety and the safety of others:

[C]ommunicating beliefs such as those in [Schneiter’s
posts] creates animosity and climate issues for the
individuals in our care that identify with these various
groups that are being disparaged in this communication.
And, you know, in the atmosphere, in the climate, in the
environment in a facility, in a prison, it’s already dangerous
without creating additional life/safety risks and animosity
and the belief that individuals are treated differently based
on … their religion ….

So all of those things create continued and
accelerated risks not only for the individual that is
distributing and displaying these inappropriate screen grabs
and memes but it reflects on all of the leadership and all of
the employees of the agency given the fact that
Mr. Schneiter is a deputy warden. So it’s just a powder
keg.

In further explaining why Schneiter’s conduct warranted his discharge, Pechacek
testified, “The factors that we considered were the life, safety, and climate risks
throughout the agency and at the 37 facilities, the impact this would have if he
remained at [the Department], [and] his credibility with not only our employees
but the public to carry out our mission.”

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No. 2023AP1387

¶43 This testimony, along with the testimony set forth in the prior
section, is substantial evidence that supports the Commission’s findings: based on
this testimony, a reasonable person could conclude that Schneiter’s conduct was
grossly negligent and caused a substantial risk to the safety and security at the
Department.7

II. Due process.

¶44 “An employee who may be dismissed only for ‘just cause’ has a
property interest in continued employment which is protected by the due process
clause of the federal constitution.” Arneson v. Jezwinski, 225 Wis. 2d 371, 393,
592 N.W.2d 606 (1999); see also Thorp v. Town of Lebanon, 2000 WI 60, ¶35
n.11, 235 Wis. 2d 610, 612 N.W.2d 59 (“[O]rdinarily there is no discernible
difference in intent between the … Due Process Clauses under the Wisconsin
Constitution and the United States Constitution.”). Schneiter argues that he was

7
Schneiter also asserts that to be discharged without imposing progressive discipline, the
requisite serious act of misconduct must have occurred while Schneiter was on duty. However,
Schneiter does not cite to any legal authority in support of this assertion. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by references to
legal authority will not be considered.”). Although we could reject Schneiter’s argument on that
basis alone, as the respondents point out in their response brief, Executive Directive 2 explicitly
states that it applies to precisely the type of off-duty misconduct at issue here: it states, “Work
rules apply to on-duty misconduct or off-duty misconduct that adversely affects the ability of
either the Department to carry out its mission or an employee to perform his or her duties and
responsibilities.” Schneiter does not respond to this argument in his reply brief, thereby
conceding the point. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304
Wis. 2d 750, 738 N.W.2d 578 (failure by appellant to respond in reply brief to an argument made
in respondent’s brief may be taken as a concession).

Separately, Schneiter argues that gross negligence or conduct creating a substantial safety
risk could not be a basis for discharging him without imposing progressive discipline because it
“was not one of the reasons alleged in Schneiter’s termination letter.” Schneiter does not support
this argument with any legal authority, and we reject it on that basis. See Pettit, 171 Wis. 2d at
646.

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No. 2023AP1387

denied due process because: (1) he did not have notice that Work Rule 25 applied
to his conduct on social media; (2) the comment made by then-Lieutenant
Governor Mandela Barnes on social media after the article was published
improperly influenced the Department’s investigation;8 and (3) the hearing
examiner was impermissibly biased. These arguments are without merit.

A. Schneiter had notice that Work Rule 25 applied to his
conduct on social media.

¶45 Schneiter argues that he did not have notice that his posts were
grounds for discipline because he could not have guessed that Work Rule 25
applied to his conduct and because the Department did not have a social media
policy in place at that time. Citing Greer v. Amesqua, 212 F.3d 358, 369 (7th Cir.
2000), Schneiter contends that “[a]dequate notice of workplace rules is satisfied
when the rules do not make employees guess at its meaning or application.” Even
assuming for purposes of this opinion that Schneiter accurately characterizes
Greer and that we will consider Greer for its persuasive value, we reject
Schneiter’s argument because Work Rule 25 plainly applies to Schneiter’s
conduct.

¶46 As noted, Work Rule 25 prohibits state employees from “[e]ngaging
in any outside activities … which may … impair the employee’s ability to perform
his/her duties as an employee of the state.” Given this language and the nature of
Schneiter’s job duties as a deputy warden, Schneiter would not have been left
guessing as to whether the rule applied to his conduct. Schneiter was a supervisor

8
We are treating Schneiter’s argument regarding the Barnes comment as a due process
argument even though Schneiter does not label it as such. This is consistent with how the
respondents treat this argument, which Schneiter does not contest in his reply brief.

22
No. 2023AP1387

at the Department, a large agency with a diverse workforce and inmate population.
As deputy warden, it was Schneiter’s job to serve as a role model for those he
supervised and to implement the Department’s discrimination and harassment
policy. In light of Schneiter’s job responsibilities, it should not have come as a
surprise to Schneiter when the Department determined that widely sharing
offensive memes on Facebook that denigrated Muslims impaired Schneiter’s
ability to perform his duties. Work Rule 25 gave Schneiter constitutionally
adequate notice, and we reject Schneiter’s arguments to the contrary. See Greer,
212 F.3d at 366, 369-70, 372 (concluding that workplace rules against
insubordination, harassment, and bringing the employer into disrepute gave the
employee constitutionally sufficient notice that he could be disciplined for issuing
a news release that “publicly excoriated [his supervisor] as a lesbian harboring
‘radical agendas’ and announced both [his supervisor and another employee] to be
‘homosexual women’ despite the fact that neither had publicly declared their
sexual orientation”).

¶47 Schneiter argues that the term “outside activity” does not reasonably
encompass “social media use.” Schneiter does not develop this argument, and we
could reject it on that basis alone. See Clean Wis., 282 Wis. 2d 250, ¶180 n.40.
However, we also reject Schneiter’s interpretation of the phrase “outside activity,”
which is most naturally understood as referring to any activity that takes place
outside of work hours, regardless of the means by which such activity occurs.
Even though the Department did not have a policy specific to social media in place
at that time, Schneiter offers no logical or coherent rationale for exempting social
media use from “outside activity” under Work Rule 25. The fact that the
Department’s work rules do not explicitly state that they apply to employees’
social media use does not mean that Schneiter did not have notice of as much.

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No. 2023AP1387

¶48 Further, Schneiter argues that he did not have notice that his actions
constituted misconduct because “throughout Schneiter’s forty-two-year-long
tenure at [the Department], he has used Facebook in the same manner and has
never been subject to discipline before.” It is unclear what Schneiter means in
saying that he used Facebook “in the same manner” for forty-two years. However,
to the extent he suggests he may have previously posted discriminatory and
offensive content on Facebook, that would not shield him from discipline for the
conduct here or compel the conclusion that he did not have adequate notice that
his actions constituted misconduct.9

B. Substantial evidence supports the Commission’s finding
that the Department’s decision to discharge Schneiter was
not improperly influenced by Barnes’ comment.

¶49 As stated, after the article in the Milwaukee Journal Sentinel was
published, then-Lieutenant Governor Mandela Barnes posted on social media that
Schneiter was “the one that has to be taken out. Too much of our nation’s system
of corrections is based on dehumanization. To add bigotry to the mix is dangerous
and cannot be tolerated.” Schneiter argues that Barnes’ statement improperly
influenced the Department’s decision to discharge Schneiter.

9
Schneiter also portrays the Commission’s determination that he had adequate notice as
resting upon the conclusory statement that it was “self-evident” that his actions constituted
misconduct, and Schneiter argues that “[s]elf-evidence does not suffice as notice.” However, this
argument mischaracterizes the Commission’s reasoning, and we reject it on that basis. The
Commission did not simply state that it was “self-evident” that Schneiter had adequate notice and
leave it at that; rather, the Commission stated “that it would be self-evident to any reasonable
[Department] employee (particularly a high-ranking [Department] employee) that posting memes
offensive to the Muslim community was misconduct—particularly in the context of the diverse
[Department] workforce and prison community.” The Commission then quoted Work Rule 25,
which it stated Schneiter was aware of.

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No. 2023AP1387

¶50 This same argument was addressed and rejected by the Commission:
the Commission determined that the Department “presented credible testimony
that the Barnes comment did not influence the investigation or the discharge
decision and thus the Commission rejects this allegation.” Although Schneiter
argues that this “finding is contrary to the evidence submitted in the record,” we
reject this argument, which Schneiter fails to support and which does not account
for our standard of review.

¶51 First, Schneiter does not identify any evidence (aside from Barnes’
comment itself) to support his argument that the comment improperly influenced
the Department’s investigation.10 In fact, the evidence was to the contrary:
Fessahaye was asked at the hearing, “Did Mandela Barnes have any influence over
the Department[’s] … decision to terminate Mr. Schneiter?” and Fessahaye
responded, “No, he did not.” Similarly, Troy Enger—who was a regional chief
with the Division of Community Corrections at the Department, and who was one
of the investigators for the Department’s investigation into Schneiter’s conduct—
testified that no one from the Department had brought any information regarding
Barnes to his attention and that he was not pressured to find that Schneiter had
violated any work rules.

10
We observe that in Schneiter’s factual background section, he states, “The Secretary’s
Office’s goal was to have its disciplinary decision align with the Lieutenant Governor’s public
statement that Schneiter ‘had to go.’” Schneiter provides a citation in support of this proposition,
but the citation is to a nonexistent page in a particular document in the record. We need not
address arguments that are not supported by citations to the record, and we remind counsel that
the rules of appellate procedure require parties to include appropriate citations to the record, not
only in their statement of facts, but also in their argument. See Tam v. Luk, 154 Wis. 2d 282, 291
n.5, 453 N.W.2d 158 (Ct. App. 1990); WIS. STAT. RULE 809.19(1)(d)-(e).

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No. 2023AP1387

¶52 In light of Schneiter’s failure to identify supporting evidence and
Fessahaye’s and Enger’s testimony to the contrary, Schneiter’s argument fails,
particularly given our standard of review. “Importantly, we uphold an agency’s
findings of fact unless a reasonable mind could not reach the conclusion that the
agency reached,” and, as stated, “we defer to the agency as to issues of credibility
and the weight of the evidence.” Leach, 414 Wis. 2d 465, ¶63; see also Robles,
394 Wis. 2d 761, ¶8 (stating that we search the record for evidence supporting the
agency’s factual determinations, “not … for evidence against them”). The
Commission found that the testimony presented by the Department regarding
Barnes’ comment was credible, and given this testimony, a reasonable mind could
determine that Barnes’ comment did not improperly influence the Department’s
investigation.

C. Schneiter has failed to show that the hearing examiner
was biased.

¶53 “A basic element of due process is the right to a fair hearing
conducted before a fair tribunal.” County of Dane v. PSC, 2022 WI 61, ¶42, 403
Wis. 2d 306, 976 N.W.2d 790; see also id. (“Due process applies to proceedings
before administrative entities.”). “[A]dministrative decision-makers are entitled to
[a] presumption of ‘honesty and integrity’ when serving as adjudicators.” Id., ¶45
(quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). To overcome this
presumption, “the party asserting bias of an administrative adjudicator must show
a ‘serious risk of actual bias—based on objective and reasonable perceptions.’”
County of Dane, 403 Wis. 2d 306, ¶45 (quoting Caperton v. A.T. Massey Coal
Co., 556 U.S. 868, 884 (2009)).

¶54 Schneiter argues that the hearing examiner was biased. The
respondents counter that Schneiter forfeited this argument by failing to raise it

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No. 2023AP1387

during the administrative proceedings. See Bunker v. LIRC, 2002 WI App 216,
¶15, 257 Wis. 2d 255, 650 N.W.2d 864 (“[T]o preserve an issue for judicial
review, a party must raise it before the administrative agency.”). Schneiter does
not respond to this argument, thereby conceding that he forfeited his argument
regarding bias. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90
Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are
deemed conceded); United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39,
304 Wis. 2d 750, 738 N.W.2d 578 (failure by appellant to respond in reply brief to
an argument made in respondent’s brief may be taken as a concession).

¶55 The respondents also correctly point out that although the hearing
examiner prepared a proposed decision, the Commission was the ultimate
decisionmaker, and it is the Commission’s decision that we are reviewing on
appeal.11 See WIS. STAT. § 227.46(2) (stating that an agency may adopt a hearing
examiner’s proposed decision as the final decision in the case); Town of Holland
v. PSC, 2018 WI App 38, ¶21, 382 Wis. 2d 799, 913 N.W.2d 914 (“Judicial
review of a decision by an administrative agency requires that this court review
the decision of the agency ….”); see also Sierra Club v. DNR, 2007 WI App 181,
¶13, 304 Wis. 2d 614, 736 N.W.2d 918 (explaining that judicial review under WIS.
STAT. § 227.52 is limited to final agency decisions). Here again, Schneiter fails to
respond to this argument, thereby conceding that any claimed bias of the hearing
examiner is inconsequential because the hearing examiner was not the ultimate
decisionmaker. See Charolais Breeding Ranches, 90 Wis. 2d at 108-09; United

11
The respondents further note that the hearing examiner, while making the statement
that Schneiter argues shows bias, began by stating, “I can’t speak for Chairman Daley, who is the
ultimate decision maker.”

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No. 2023AP1387

Coop., 304 Wis. 2d 750, ¶39. Further, the cases that Schneiter cites in support of
his argument that his due process rights were violated because the hearing
examiner was biased all address bias of the actual decisionmaker, and Schneiter
thus fails to provide authority supporting his argument. See Pettit, 171 Wis. 2d
627, 646. Accordingly, we reject Schneiter’s argument that the hearing examiner
was biased.

CONCLUSION

¶56 In sum, Schneiter has not shown that he was denied due process:
Work Rule 25 provided adequate notice that his conduct would subject him to
discipline; substantial evidence supports the Commission’s finding that the Barnes
comment did not improperly influence the Department’s investigation; and
Schneiter has not shown that the hearing examiner was biased.

¶57 For the reasons stated above, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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