Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—7th Cir.: Deputy warden, fired for posting offensive memes on Facebook, cannot revive claims, (Aug 1, 2025)

By Todd Harrison, J.D.

The posts, only viewable by his 1,200 Facebook “friends,” were disparaging towards Muslims, Black people, liberals, and the LGBTQ community, and one referred to the Confederate flag as “our flag.”

Affirming a district court’s grant of summary judgment against the First and Fourteenth Amendment claims brought by the former deputy warden for the Wisconsin Correctional Center System (WCCS), the Seventh Circuit determined that the WCCS’s interests as a public employer—particularly its duty to maintain security and discipline in correctional facilities—outweighed the deputy warden’s interest in posting this type of material on Facebook. With regard to the deputy warden’s due process claim, he had argued the WCCS failed to give notice to employees that social-media posts might jeopardize their jobs. However, the court found that public employers are not constitutionally required to adopt specific policies before disciplining employees for activities that may interfere with their job duties (Schneiter v. Carr, No. 22-2137 (7th Cir. July 31, 2025)).

Hired as an entry-level correctional officer in 1977, the plaintiff gradually moved up the career ladder and in 2011 was promoted to the significant leadership position of deputy warden for the Wisconsin Correctional Center System. The WCCS encompasses a network of 14 minimum-security prisons scattered throughout the state.

Facebook posts. Over the course of several weeks in June 2019, the deputy warden posted on his Facebook page five internet memes touching on issues of race, religion, and gay rights in particularly inflammatory and degrading ways, including one meme comparing Muslim children to garbage, and another referring to the Confederate battle flag as “our flag.” His Facebook page had been set to “private,” meaning the general public was blocked from viewing his posts. However, he had approximately 1,200 Facebook friends who could view his posts, including many employees of the Department of Corrections.

Leaked. Sometime soon after the deputy warden posted the last of these memes, an anonymous tipster leaked them to the Milwaukee Journal Sentinel. A reporter questioned the deputy warden about the memes, and he responded that he was merely trying to show the differing opinions of others while bringing awareness to issues.

On July 17, 2019, the paper published an article with the headline: “Deputy Prison Warden Posts Facebook Meme that Compares Muslim Children to Garbage.” The fallout was swift. The deputy warden was placed on paid administrative leave that day and an investigation was initiated.

Termination. According to the results of the investigation, the deputy warden had violated three work rules. First, his unauthorized communications with the newspaper reporter violated department policy concerning unapproved media interviews. Second, by posting the memes to his Facebook page, he violated a rule that, in part, prohibits “[i]ntimidating, harassing, demeaning, treating discourteously, or bullying” others, or using “abusive language in dealing with others.” Third, the posts violated a rule barring employees from engaging in “outside activities” that “may impair the employee’s independence of judgment or ability to perform his/her duties as an employee of the state.”

After several levels of administrative review, the decision was made to terminate the deputy warden’s employment. The deputy warden unsuccessfully grieved this decision.

Lawsuit. Subsequently, the deputy warden filed this lawsuit alleging that he was fired in violation of his First Amendment right to freedom of speech and his Fourteenth Amendment right to due process. The district court granted summary judgment against both claims and this appeal followed.

Public concern. Initially addressing the First Amendment retaliation claim, the court noted that it was undisputed that the Facebook posts were not the WCCS’s speech. Thus, the district court assumed, and the parties accepted on this appeal, that the posts qualified as citizen speech on a matter of public concern.

Pickering. Because the speech in question was citizen speech regarding a matter of public concern, the court here applied the Pickering balancing test. The court explained that its cases applying Pickering have articulated a nonexclusive list of seven factors that may be relevant to the balance of interests, and that these factors are not meant to be a “doctrinal touchstone nor a straightjacket.”

Deputy warden’s interests. With this in mind, the court started with the interests on the deputy warden’s side of the scale. He posted the memes on his personal Facebook page during nonwork hours, and neither his Facebook profile nor the posts specifically identified his public employment. Moreover, although the posts were not “private” in the traditional sense of the word, they were only viewable by the deputy warden’s Facebook “friends.” Thus, the speech at issue was essentially personal and not on its face linked to his state corrections job.

WCCS’s interests. Turning to WCCS’s countervailing interests, the court observed that these interests were “significant,” noting that its Pickering case law “gives special solicitude to public employers in the law enforcement and correctional contexts” because of the paramount concerns surrounding safety and order.

The WCCS is a large state corrections agency housing a diverse population and it has a diverse workforce, explained the court. In targeting Muslims, Black, and gay people, the deputy warden’s posts denigrated populations he was required to supervise, manage, and lead. As such, the WCCS reasonably concluded that the posts risked exacerbating already high tensions between inmates and called into question the ability of the deputy warden to treat staff members fairly. Further, the WCCS also has a significant interest in maintaining public confidence in its services.

Perhaps the weightiest consideration, continued the court, is the degree of deference owed to the WCCS’s own assessment of the risks to its mission-critical correctional operations. The deputy warden was more than a rank-and-file officer. He held a leadership role imbued with significant trust and confidence. Under these circumstances, the WCCS’s interests in maintaining order, safety, and discipline in its correctional facilities outweighed the deputy warden’s interest in posting these memes on social media, said the court, and summary judgment against his First Amendment claim was affirmed.

Social media policy. Turning to the deputy warden’s due process claim, the court noted that this challenge centered on his complaint that the WCCS lacked a specific policy concerning social media use by employees, and was not concerned with the termination process itself. Although not clearly labeled as such, the court explained that his argument resembled a challenge under the void-for-vagueness doctrine, given that he asserted that the WCCS’s rules failed to warn him of the possible consequences of his social media activity.

Even framed this way, the court found such an argument to be meritless. Although the work rules cited as the basis for the deputy warden’s termination were generic, a reasonable employee would understand that such broadly written rules apply to a wide but sufficiently definite range of conduct.

Here, the deputy warden appeared to argue that a public employer must promulgate a specific policy about employee social media activity before it may discipline an employee for social media posts. “The Constitution does not require that degree of specificity,” said the court. Accordingly, the grant of summary judgment against this claim was also affirmed.

The case is No. 22-2137.

Judge: Sykes, D.

Attorneys: Nathaniel Cade, Jr. (Cade Law Group) for Richard S. Schneiter. Steven C. Kilpatrick, Wisconsin Department of Justice, for Kevin Carr, Amy Pechacek, Makda Fessahaye and Kari Beier.

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