Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 95-C-1203 John W. Reynolds, Judge.
Before CUDAHY, COFFEY, and EVANS, Circuit Judges.
Kelvin Balton and Tyrone Barnes are firefighters, more precisely "assistant chief dispatchers," with the City of Milwaukee Fire Department. In this suit they contend that a performance evaluation rating them "below average" for "professional qualities," issued by the deputy chief of the fire department, Dennis Michalowski, violated their constitutional rights to freedom of association or, as more peculiar to this case, their freedom "not to associate."
Rank and file members of the fire department are represented by a union (Firefighters Local 215) that bargains with the City of Milwaukee over wages and conditions of employment. Members of the fire department above the rank and file level, the "command staff," are not unionized, but they have an organization, the Chief Officers Association, which looks after their interests. The Chiefs Association performs no collective bargaining tasks, but it benefits from contract provisions negotiated by Local 215. In that regard, the Association represents its members in "informal conversations" with Local 215 on contract issues.
In addition to Balton and Barnes, there are apparently two other firefighters in the city who hold the title of "assistant chief dispatchers." Until 1993 assistant chief dispatchers were not eligible for membership in the Chiefs Association. In 1993, however, assistant chief dispatchers were allowed to join the Association, and Barnes and Balton did so because they believed being members would assist them in obtaining pay grade increases and other benefits. Dues for Association members are $260 a year and, as far as we can determine, almost every fire department command level officer is a member of the Association.
Joining the Association did not turn out to be the pay raise and benefits elixir Balton and Barnes envisioned. They apparently learned, with Balton doing the research, that the Milwaukee Fire Department paid its assistant chief dispatchers as well as or more than the rate of pay received by those doing comparable work in other cities. So the Association was apparently not going to aggressively go to bat for Balton's and Barnes' interests as they saw them. This caused their zeal for the Association to wane, and both Barnes and Balton became delinquent in paying their dues.
In May of 1994 the Association treasurer reminded Balton and Barnes that their dues were in arrears. They did not pony up, so the treasurer mentioned the delinquencies to Michalowski, who tried to turn on the heat. A month later, in June, Michalowski and Balton's and Barnes' immediate supervisor, Anthony Stanford--the chief dispatcher--met to discuss the dues situation. Balton and Barnes did not indicate that they no longer wished to be members of the Association. A few weeks later, Balton and Barnes told Stanford that another meeting with Michalowski was unnecessary because they decided to pay their delinquent dues. Neither said they no longer wanted to be members of the Association, although Balton later claimed he didn't want to give Michalowski that news because it would rile him up and he might retaliate against them.
No dues were paid by either Balton or Barnes through September of 1994. Neither responded to a treasurer's notice to pay up, and Stanford subsequently reminded the pair of their responsibility to pay. During this time, both Balton and Barnes repeatedly indicated to Stanford that they would pay their dues. This assertion, we note, comes from the defendants' proposed findings of fact in support of their motion for summary judgment. Balton and Barnes responded to this assertion by saying they "disagree in part" with respect to the last sentence. However, neither Balton nor Barnes supported their disagreement with any explanation or citation to the record, and the district court held, and we agree, that this weak statement was insufficient to negate the proposed finding which the defendants properly supported with sworn affidavit evidence.
Balton and Barnes continued to assure Stanford that they would pay their dues, and although Barnes made a partial payment, they remained in arrears when Michalowski spoke to them again about the delinquencies. Eventually, near the end of September 1994, Balton told Stanford that he no longer wished to be a member of the Association. Whether or not Barnes took the same position is unclear, but it's a safe bet that he wasn't enthusiastic about maintaining his membership, so we can safely assume he did what Balton did. On or about September 28, 1994, Stanford told Michalowski that Balton (and we think Barnes) no longer wished to be members of the Association. Michalowski then wrote up a "form 131 performance evaluation" on Balton and Barnes.
The form 131 lists 10 "performance factors" to be ranked on a five-step scale ranging from "far below average" to "well above average." "Professional qualities" was one of the 10 factors, *fn1 and Michalowski marked the item "below average" on Balton's evaluation. Barnes also received a similarly marked "form 131." Michalowski sent the forms to August Erdmann, *fn2 the chief of the Milwaukee Fire Department, with a "justification" memorandum stating:
Balton [and Barnes] has refused to make dues payments to the Milwaukee Fire Department Chief Officers' Association. He has been talked to ...