On January 26, 2018, Officer Erik Andrade of the Milwaukee Police Department was part of a group of officers who forcibly arrested Milwaukee Bucks player Sterling Brown. Brown was arrested with force and was shocked with a Taser. Andrade transported him to the police station after his arrest. Later that day, Andrade shared a Facebook post with his thoughts on the encounter. He wrote, “Nice meeting Sterling Brown of the Milwaukee Bucks at work this morning! LOL #FearTheDeer.” “Fear the Deer” is a slogan for the Bucks.
Over the next several months, Andrade made several more Facebook posts with references to black NBA players, which Chief Alfonso Morales would characterize as “inappropriate, disrespectful and defamatory.” A member of the City of Milwaukee Common Council shared these posts with the Department, prompting the Department to open an Internal Affairs investigation. In June of 2018, Brown sued the City of Milwaukee, Morales, and all the officers who were present at the scene of his arrest, including Andrade. The complaint cited many of Andrade’s posts as an admission that Andrade and other officers could engage in “unlawful attacks and arrests of African Americans without justification” or a “fear of real discipline.”
Andrade was interviewed by IA. He had already been sent a written notice which summarized his posts, and the Department policies implicated by his conduct, as well as the fact that he could face discipline. At the interview, he read aloud relevant portions of the Department policies and reviewed each post with the investigator. On August 23, 2018, the Department officially charged Andrade with violating the same “Core Values and Guiding Principles” he was put on notice of prior to and during his interview. Morales subsequently reached out to Milwaukee County District Attorney’s Office and asked whether Andrade’s posts would affect his credibility as a witness. They said yes; the posts diminished his credibility so severely, according to the DA’s office, that he would never be called to testify.
Morales issued an order that found Andrade guilty of the charges and imposed discipline, suspending him for 30 days for “posting content to a social networking site that was disruptive to the mission of the department,” and discharging him for the charge of “failure to inspire and sustain the confidence of our community.” The Board of Fire and Police Commissioners held a hearing on Andrade’s appeal from his discharge, and ultimately found that the punishments were appropriate.
Andrade then appealed this determination to the circuit court, contending that the Board did not have just cause to sustain the discharge, and that he was unaware prior to the hearing that his inability to testify, as determined by the DA’s office, was an issue.
The Court disagreed, affirming the panel’s just cause decision on the merits. It also held that Morales complied with the notice requirements of due process and state law, and that Morales did not charge Andrade for his inability to testify; rather, it was an “impact” of the conduct leading to the charges. Andrade appealed once more to the Supreme Court of Wisconsin.
The Court affirmed the decisions on due process and Wisconsin law. On the due process challenge, the Court rejected Andrade’s argument that Morales violated his process rights when he terminated Andrade without mentioning his inability to testify as a basis for the punishment.
As the Court explained: “Morales did not charge Andrade for his inability to testify. As Morales explained, his conclusions about the policy violations differed from his decision about how to discipline Andrade. Loudermill does not require an explanation of the reasons discharge was the chosen punishment as opposed to suspension or something lesser. Rather, Loudermill just requires an explanation of the basic reasons the employee is being disciplined. Andrade proposes far more rigid, formal, and exhaustive notice requirements than Loudermill commands. An employer need not detail all the consequences of an employee’s misconduct, nor must it show in detail how those consequences might inform the employer’s choice of discipline. The employer must simply notify the employee of the charges and evidence and give them an opportunity to respond.”
On state law, the Court affirmed for substantially the same reasons, finding that the state statute “does not require an explanation of all the reasons a specific level of discipline was chosen.”
Andrade v. City of Milwaukee Bd. of Fire & Police Commissioners, N.W.3d 261 (Wis. 2024).