author: CHARLES R. RICHEY, District Judge.

text:
    William H. HAYGAN, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 85-2609.
    United States District Court, District of Columbia.
    Feb. 7, 1986.
    Mitchell B. Weitzman, Robert A. Ades & Associates, P.C., Washington, D.C., for plaintiff.
    James N. Owens, Asst. U.S. Atty., Joseph E. DiGenova, U.S. Atty., Royce C. Lamberth, Asst. U.S. Atty., Washington, D.C., for defendant.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

This is a claim of negligence under the Federal Tort Claims Act, 28 U.S.C. § 2671-80 and breach of contract under the Tucker Act, 28 U.S.C. § 1346(a)(2) as the result of the theft of plaintiff’s car from a government parking lot sometime during the night of March 12-13, 1983. Plaintiff has already received $2,857.16 from his insurance company. He seeks to recover an additional $3,000 in this action.

Before the Court is the entire record in this case including the defendant’s motion to dismiss or in the alternative for summary judgment, plaintiff’s opposition thereto, and defendant’s reply. For the reasons set forth below the defendant’s motion for summary judgment is granted.

BACKGROUND

The material facts are undisputed. Plaintiff’s Opposition, p. 1, n. 1.

At the time of the theft plaintiff was employed by the Government Printing Office (GPO) in Washington, D.C. and had a valid parking permit issued by GPO.

Plaintiff’s regular work shift began at 4:30 PM and ended at 1 AM. Shortly before reporting to work on Saturday, March 12, 1983 the plaintiff parked his car in Lot 17. Returning to the lot at the end of his shift the plaintiff discovered his car missing. He immediately reported the car stolen to the GPO Vehicle Parking Lot Patrol Officer. Eventually, the car was recovered. Its ignition lock had been ripped from the steering column, the entire right side was damaged, and the glove box and trunk had been ransacked.

As mentioned, plaintiffs insurance company paid him $2,857.16 to compensate for the damages. He then filed a Federal Tort Claims Act administrative claim for $980 in an effort to recover for those losses not paid for by his insurance carrier. Plaintiff’s claim was denied by the GPO on February 15, 1985. He filed this suit on August 14, 1985.

Plaintiff alleges two causes of action. The first, brought under the Federal Tort Claims Act, 28 U.S.C. § 2671-80, alleges the government was negligent in not providing any security for the lot where the plaintiff parked his car. Complaint, ¶ 7 (emphasis added). Plaintiff also alleges breach of a bailment contract. Complaint, ¶ 6.

The defendant argues (1) that the negligence claim is barred by the Federal Tort Claims Act (FTCA), (2) no bailment contract ever existed, and (3) the parking space application explicitly disclaimed liability for damage occurring while the car is on the GPO lot.

SECURITY IS A DISCRETIONARY FUNCTION AND THE FEDERAL TORT CLAIMS ACT BARS CAUSES OF ACTION BASED ON FAILURE TO PERFORM DISCRETIONARY FUNCTIONS

The FTCA does not waive the federal government’s immunity for claims based on the alleged failure to perform a discretionary function. 28 U.S.C. § 2680(a).

The “discretionary function” exemption “includes determinations made by executives or administrators in establishing plans, specifications, or schedules of operations. Where there is room for policy judgment and decision there is discretion.” Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-68, 97 L.Ed. 1427 (1953); Taxay v. United States, 345 F.Supp. 1284, 1285 (D.D.C.1972) (The “discretionary function” exemption “shields the government from suit for ‘planning’ or policy decisions, as opposed to those made on an ‘operational’ level”.)

Applying this test courts have found providing building security a discretionary function. In Turner v. United States, 473 F.Supp. 317 (D.D.C.1979), plaintiff, a maintenance force supervisor, was raped while working in the South Building of the Department of Agriculture. She filed suit under the FTCA claiming the government was negligent in not providing adequate security for people working in the building. The Court ruled that “given the prevalence of crime in the District of Columbia it is, of course, always ‘forseeable’ that harm could come to the occupant of a government building”. Even so, “the government’s decision to maintain only two guards and to lower the lights due to the energy crisis were clearly discretionary acts”. Id. at 320. As a result, her suit was barred by the FTCA.

In Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA, 1980), students were kidnapped from a state university’s parking lot and murdered. Plaintiffs alleged the state was negligent in not providing security for the lot. The Court held that “whether to provide security guards, parking attendants, security gates, and the numbers thereof, are clearly discretionary decisions partially based upon budgetary limitations controlled by the Legislature”. Id at 1382.

In the case now before this Court the plaintiffs claim that the government was negligent in not providing security is identical to the claims made by the plaintiffs in Turner and Relyea. And, as the courts did in Turner and Relyea here too the plaintiffs claim is barred by the discretionary function exemption.

In this case there are only a limited number of guards available for weekend duty at the GPO facility. Therefore, in the interests of efficiency, only one police officer was assigned, as a “roving patrol”, to monitor all the parking lots. Declaration of Robert Blaney, Deputy Director of Security Service, U.S. Government Printing Office.

Under the “discretionary function” exemption as ennunciated in Dalehite, Taxay, and Turner the GPO’s decision to assign only one officer to patrol the parking lots on weekends was beyond question an executive decision, thus discretionary, and, as such, cannot be the grounds for a suit under the FTCA.

PLAINTIFF’S APPLICATION FOR A PARKING SPACE CREATED A LICENSE NOT A CONTRACT

The parties disagree whether plaintiffs application for a parking space created a bailment contract (Plaintiffs Opposition, p. 3) or merely a license (Defendant’s Reply, p. 2).

Again, the material facts are not in dispute. All that remains is the question of law that this Court can and will decide. See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Inc. v. National Right To Work Legal Defense and Education Fund, Inc., 781 F.2d 928 (D.C. Cir.1986). (“Summary judgment is proper if no genuine issue as to a material fact remains.” Id. at 932)

The procedure in the GPO parking lots is that the driver park his car, lock it (if he wishes), and retain possession of his car keys. Such “park and lock” arrangements create either lease or license relationships. Plaintiff’s contention that his application for a parking space created a bailment contract is incorrect. Sarbov Parking Corporation v. Motors Insurance Corporation, 255 A.2d 112, 113 (D.C.App.1969) (“[I]n most cases [park and lock arrangements] [are] held not to create a bailment. Rather, these factors are thought to create either a lease or license relationship”. Id. at 113.)

PLAINTIFF IS BOUND BY THE DAMAGE LIABILITY RELEASE IN THE PARKING APPLICATION

The application for a parking space submitted by the plaintiff contains a provision releasing the government from all liability from damage while the car was on the lot. The provision is set out in full in the margin.

This release was not buried in paragraphs of boilerplate, printed in type virtually unreadable by the naked eye, or phrased in language comprehensible only to law school deans. Anyone who read it would understand it. It appears immediately above the line for the applicant’s signature. It is only reasonable to assume the applicant read, understood, and accepted this clause. Absent gross negligence, fraud, or willful acts (none of which occurred or are alleged to have occurred) such limitations of liability are routinely enforced, when, as here, the bailor knew of them. Lucas v. Auto City Parking, 62 A.2d 557 (D.C.App.1948) (Plaintiff whose medical bag was stolen from car parked on defendant’s lot held bound by sign reading “COMPANY NOT RESPONSIBLE FOR ARTICLES LEFT IN CAR”.); Houston v. Security Storage Company of Washington, 474 A.2d 143, 144 (D.C.App.1984).

Consequently, the government’s disclaimer of liability is valid and the plaintiff’s contract claim, foreclosed.

CONCLUSION

For the reasons set forth herein, defendant’s motion for summary judgment as to the plaintiff’s claims sounding in tort and in contract will be granted.

An order in accordance with the foregoing will be issued of even date herewith.

      . Plaintiff seeks to recover $3,000 in damages. The FTCA bars actions "for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based on newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency”. 28 U.S.C. § 2675(b). Accordingly, the government seeks to limit any recovery to $980, the amount claimed in the administrative proceeding. Plaintiff says the increased claim is a result of unspecified "ongoing vehicle trouble past the date of the administrative claim". Plaintiffs Opposition, p. 4, n. 2. As defendant’s motion for summary judgment is granted the issue of plaintiffs claiming over $980 need not be resolved.

      . In his complaint, plaintiff alleges the government provided no security for the lot. As the government correctly points out, some security was provided, just not as much as the defendant thinks adequate. Defendant's Motion to Dismiss, p. 3. n. 4.

      . "NON-LIABILITY OF GPO: I understand that the GPO will not be liable for any damage caused any motor vehicle while on a GPO lot and I hereby agree to release GPO from any liability on any claims I might have arising from any damage done to any vehicle while it is located on a GPO lot.”


source: Caselaw Access Project

author: SACHS, District Judge.

license: Public Domain

text:
    James E. WILLIAMS, Plaintiff, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY, Defendant.
    No. 83-0828-CV-W-6.
    United States District Court, W.D. Missouri, W.D.
    Feb. 7, 1986.

      Charles S. Scott, Jr., Kansas City, Mo., for plaintiff.
    Jack W.R. Headley, Jack D. Rowe, La-throp, Koontz, Righter, Clagett & Nor-quist, Kansas City, Mo., for defendant.
   MEMORANDUM AND ORDER REGARDING TITLE VII LIABILITY

SACHS, District Judge.

Plaintiff Williams, a black former employee of defendant railroad company (Santa, Fe) has filed a multiple-count complaint alleging negligent injury, employment discrimination because of his race and violation of the Missouri Service Letter Statute. The Second Amended Complaint (Document #38) is in eight counts. By reason of judicial rulings and a jury’s verdict defendant has prevailed on a claim for discriminatory discharge (42 U.S.C. § 1981) and for negligent injury, 45 U.S.C. §§ 51-60. Nominal damages in plaintiff's favor are being awarded for a technical violation of the Service Letter Statute, § 290.140, RSMo. Remaining to be ruled is the Title VII discrimination claim (42 U.S.C. § 2000e et seq.) relating to conditions of employment. As developed by the evidence, plaintiff’s remaining claim is that defendant tolerated racist remarks, slurs and jokes by his fellow employees on its line between Fort Madison, Iowa, and Marceline, Missouri, so that plaintiff was deprived of normal working conditions during his employment and has refrained from seeking reinstatement to the job that he lost in May 1983.

The conditions-of-employment claim has the least potential, in monetary terms, of the various claims asserted. According to undisputed testimony, plaintiff had also suffered an assault (presumably racist in nature and presumably from a railroad employee) in the Marceline depot in 1979; he also complained of racial harassment and hazing (being dumped from a bench in the park in Marceline) in 1980. More likely than not, at least one railroad employee was involved in that incident. Railroad officials thereafter gave plaintiff maximum demerits on two occasions in 1983 (for taking no action to slow a speeding train on which he was riding and for leaving his job in the Fort Madison yard without waiting to determine if overtime work was required). Having obtained 60 demerits in a short period, he was then terminated.

The demerit issues were submitted to a jury on the question of racial discrimination. The jury rejected the claim. The assault and hazing incidents were withdrawn from the jury because I concluded the railroad was not shown to have been on notice of violent propensities of the two employee suspects or of any other employees serving in the Marceline area.

The conditions-of-employment claim is challenged by two legal defenses: (1) such a claim cannot be considered because it was not contained in the discrimination charge presented to the EEOC, and (2) all plaintiff’s evidence of racist remarks by fellow employees is outside the 180 day period covered by Title VII.

I.

The precise issue presented as to the scope of the charge seems not to have been ruled in this Circuit, and is of some substance. Essentially, the full page of specification in the charge is directed primarily at two incidents in which plaintiff received demerits, resulting in an accumulation which caused his termination in May 1983. The second incident is one in which plaintiff claims direct managerial bias, in that a white employee’s departures from work prior to the completion of his shift were overlooked until reported by plaintiff, whereas he was given the maximum number of demerits (30) for one instance in which he left work at the completion of his shift but before notification that overtime work would not be needed. This contention of mistreatment (which the jury rejected as a racially motivated incident) seems quite independent of the conditions-of-employment complaint.

The earlier incident, however, is a bizarre contention that the white members of a train crew were so biased against plaintiff that they sent him to sit in the caboose with a fellow black employee and then speeded the train for a prolonged period so that he would be expected to receive demerits (while they could expect to be and were discharged). This contention was also rejected by the jury, and I find the racially-motivated speeding theory inherently incredible. The claim does, however, fairly trigger inquiry into the relationship between plaintiff and his co-workers. The slightest inquiry into that portion of the charge would surely bring forth the story, heard at trial and within the scope of the Second Amended Complaint, that plaintiff was subjected to harassment by co-workers from the early days of his employment, in 1976, that racial hostility was rampant among the Santa Fe employees and was not dealt with by the employer, and that plaintiff suffered a physical attack and physical hazing in 1979 and 1980, most likely from one or more railroad employees and most likely racially motivated.

The leading case in the Eighth Circuit assessing the scope of the charge as a condition precedent for a judicial proceeding is Pickney v. American District Telegraph Co. of Arkansas, 568 F.Supp. 687 (E.D.Ark.1983). In that case, on which defendant relies, Chief Judge Eisele reviewed appellate decisions in this Circuit and elsewhere and held that a charge of sex discrimination in a termination was narrowly focused and did not authorize a subsequent complaint that plaintiff had suffered sex discrimination in denial of promotions. Although the recitations in a charge are to be given liberal construction, as in any pro se proceeding, Judge Eisele noted that there must be some linkage between the charge and a subsequent complaint, and that the latter must be “reasonably related” to the former. It is not, however, the wording of the charge that is controlling; the charge simply triggers an investigation. “A court should not ignore matters unearthed during the conduct of the EEOC’s investigation so long as they ‘can reasonably be expected to grow out of the charge of discrimination.’ ” 568 F.Supp. at 690, n. 1. The quotation was from the leading case of Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970). In Pickney the plaintiff did not contend that “the EEOC investigation delved into any matters other than the plaintiffs particular termination and, perhaps, the defendant’s termination procedures.” 568 F.Supp. at 691. Judge Eisele apparently saw nothing in the charge that would likely trigger inquiry into promotions.

Pickney is not dispositive of the case at bar. Nor is the other case cited by defendant, Matthews v. A—1, Inc., 748 F.2d 975 (5th Cir.1984). In that case the district judge considered evidence of sexual harassment “only as relevant background evidence” on a termination charge, and ruled that “no recovery could be based on this factor because it was not included in the E.E.O.C. charge.” Id. at 976. The plaintiff, who won her case, did not contend an appeal that the district court erred in failing to consider as a separate basis of relief the harassment evidence. While the unreported district court ruling may offer some slight support for the defendant’s theory (depending on closer examination of the facts) the appellate commentary has no particular bearing on this case.

The Sanchez case, cited in both Matthews and Pickney, is somewhat supportive of plaintiff’s side of the issue. In that case, plaintiff had charged that she had been unpaid for an injury and that she had been struck by a supervisor. This was held to be a sufficient, timely allegation to justify a later developed verbal abuse and harassment claim. Charging one variety of abuse fairly led to inquiry into another.

The present case is somewhat more difficult to call than was Sanchez. Neither side presented evidence at trial as to the actual scope of the EEOC investigation. That is not controlling, however, because the essential inquiry is “what EEOC investigation could reasonably be expected to grow” from the original charge. Babrocky v. Jewel Food Co., 773 F.2d 857, 864 n. 2 (7th Cir.1985).

I have no problem accepting the lead of Chief Judge Eisele in his Pickney decision, and would give it dispositive effect if the last disciplinary proceeding had been all that was within the charge. That disciplinary proceeding seems sufficiently divorced from the issue of rampant racial hostility among co-workers so that it may be deemed insufficiently related to the ultimate complaint that I must deal with. The first claim, however, does rest on a premise of gross racial hostility among the railroad workers and racial harassment in working conditions. Relatedness seems adequate, under Sanchez. The complaint flows naturally and almost inevitably from any probing of the speeding charge. That is sufficient to lay the groundwork for my Title VII inquiry.

II.

The contention that there was no proof of verbal abuse by fellow employees during the final 180 days of plaintiff’s employment will be discussed in connection with a review of all the evidence on the subject. To begin at the beginning, it is not in dispute that there were no black employees working out of Fort Madison or Marceline in train service until shortly before plaintiff’s employment in 1976. In a spurt of affirmative action, some 15 or 20 black employees were added to the 300 persons in the Third District work force in a short period, abruptly ending in 1977. The black employees were resented by the existing work force, many of whom were related by blood or marriage and all of whom were white. Santa Fe engaged in no educational effort to smooth intergroup relations and seems never to have disciplined or warned or counselled with employees who exhibited racist feelings or made racist remarks. Racial slurs and jokes were and apparently are prevalent, occurring on a “regular” if not “daily” basis, but Santa Fe disclaims any knowledge of the situation, except to acknowledge that railroad workers probably do not talk like white-collar workers. The number of black employees in the District has dwindled to four; Santa Fe’s theory as to the cause of this decline in integration is that the black employees probably found lay-overs in Marceline to be “dull.”

A white union official and a black former employee who expects reinstatement testified convincingly for plaintiff that racist remarks by employees have been frequent, and that plaintiff was a special target of such remarks because he was rapidly advanced to brakeman and conductor. Plaintiff also testified generally to racist badmouthing in Marceline and on the Fort Madison-Marceline line. Such remarks were not frequently made in his presence because he let it be known he resented them and he adopted a practice of separating himself from most of his fellow employees. Plaintiffs self-isolation was largely the result of a perception of racist feelings that was in considerable part true.

Witness Caswell recited a litany of derogatory racial terms regularly heard at the depot in Marceline that “had” to be known by Santa Fe supervisors. A train-master is in charge and a special agent (investigator) is in residence. The defendant’s reply brief also lists a foreman of road engines. I do not accept a theory that the supervisory employees in a small depot cut off opportunities to be aware of activities in the depot. It is presumably their responsibility to be knowledgeable about employee relations, among other things. Caswell testified to the posting of a “Ku Klux Klan application” on the bulletin board, which he interpreted as more than a sick joke. While there was no testimony as to racist remarks carefully dated to the last six months of plaintiff's service, there was undisputed testimony of a racial incident during that period, in that plaintiff was sent to the caboose to ride with another black employee on the occasion when all were disciplined for “speeding.” The conductor in question was terminated for speeding, but shortly reinstated (according to general practice of the railroad). There was no testimony showing that the racial assignment was criticized by management or that the conductor was counselled on racial issues before his reinstatement.

Defendant’s evidentiary response to the issue of racial remarks by co-employees was inadequate and unconvincing. The highest supervisor in the District, D.H. Gill, denied awareness of expressions of racist feeling. See, however, Plaintiff’s Exhibit 14 (Gill memorandum of March 21, 1983, noting racial assignment of plaintiff to caboose). Two of the four black employees testified in effect that they could “take it,” and reported no special problem. The fact that some employees were willing or able to tolerate racial remarks does not, of course, relieve the defendant of its obligation to strive for a work environment essentially free of racist remarks and incidents. There was no denial by an official in Marceline (McKennon) that he had declined to inquire of a suspect identified in the “park bench incident” because the racial incident was not on the company premises. Nor was there testimony from the two other black employees or from all supervisors and special agents at Marceline. While portions of this case were in my judgment overtried by both sides, another hour’s testimony on the Title VII issue from another four or five witnesses would not have materially lengthened the trial. It does not take long to make a credible denial, if warranted by the facts.

B.R. Howard, trainmaster at Marceline since 1981, although called as a witness by defendant, did not (according to my notes) testify as to race relations among the employees working out of that depot. The testimony on that subject by plaintiff and his witnesses was neither denied nor identified as “ancient history.”

I am left with the distinct belief that Santa Fe thought the racial resentments, and expressions of such resentments, in Marceline and the rest of District Three were “natural” and that it had no responsibility for trying to improve race relations or racial expressions by its employees.

III.

On the legal implications of the facts in this case I conclude that plaintiff is not barred by failure to identify particular remarks made during the last 180 days of his employment. The problem was a continuing one, and I do not find that there is convincing evidence that District Three has ever become essentially free of racist expressions.

Nor is the situation de minimis. Slurs were not “isolated” or “casual.” If the racial atmosphere in District Three was not really “dismal” (Taylor v. Jones, 653 F.2d 1193, 1198-99 (8th Cir.1981)), it was surely very poor. Such conditions violate Title VII “regardless of any other tangible job detriment to minorities.” Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984). While an employer is not held responsible for a sporadic instance of racist (or sexist) talk by a non-supervisory. employee, for the same reason that Santa Fe is not liable here for assaults, I am satisfied that exposure to racist talk, known by or knowable by supervisors, was and is a chronic and significant condition of employment in District Three. Although plaintiff was somewhat isolated, largely as a result of the prevailing conditions, and was not personally exposed to frequent, current memorable remarks, he could hardly have been unaware of the situation, and I am satisfied that he found the racist atmosphere oppressive.

Merely because the offensive talk is not so flagrant as to have been reported (and then perhaps investigated) does not free defendant of responsibility. Employee team-work is an obvious job requirement on the railroad. Santa Fe has failed to respond to the needs and legal rights of its racial minority employees.

A Title VII violation has been shown.

IV.

On the question of remedies, I agree with defendant that money damages are not recoverable under Title VII for emotional distress, although this deficiency in allowable remedies is to be regretted in a case where at least part of plaintiffs current psychological problems is doubtless attributable to the expressed attitudes of his co-workers. Muldrew v. AnheuserBusch, 728 F.2d 989, 992 (8th Cir.1984).

Plaintiff contends that damages were allowable for a “constructive discharge.” It is too late in this litigation to make this contention; moreover it is clear that in early 1983 plaintiff was seeking to keep his job and was also trying to get assignments outside the Fort Madison yard for the higher paying work involved in the run to Marceline. The conditions, while bad, did not cause plaintiff to quit his job.

Having found a violation, I am obligated to formulate appropriate equitable relief. Defendant does not contend that the issue has become moot because plaintiff is no longer employed by Santa Fe. Such a condition may change, as there is evidence that terminated persons retain first priority in getting reinstated, and termination does not have the usual significance of that term.

The evidence is mixed as to whether plaintiff desires to be returned to work in District Three. He has failed to seek reinstatement during the almost three years since his termination. It is clear that he no longer wants to work in District Three if faced with the racial conditions previously experienced. Although the attitude of coworkers did not create such resistance in May of 1983, plaintiff’s readiness to resume his work has altered during litigation (since the final termination, which he believed, incorrectly, to be discriminatory).

The normal rational response to the situation would be to welcome the comparatively good pay Santa Fe provides if plaintiff can rely on good faith efforts by the railroad to improve intergroup relations and to discipline those who may continue to use racial expressions or engage in other racist acts. Defendant contends the unusual resistance to reinstatement by plaintiff is based on an unwillingness to work (a new characteristic) or a false impression that this litigation may provide him with monetary rewards exceeding those he would enjoy if working for Santa Fe. I do not agree that plaintiff is simply attracted -to gold at the end of the rainbow. I do conclude he is influenced by his supposition that Santa Fe is incorrigible and that working conditions will not be improved. In any event, it seems inequitable to penalize plaintiff, as defendant seems prepared to do, for his past resistance to reinstatement, based at least in part on defendant’s Title VII violation. There is, however, conceivably another party — the union — that should have an opportunity to be heard on the effect of plaintiff’s delay in seeking reinstatement.

Plaintiff’s counsel is not very imaginative as to what injunctive relief should be granted. Again, if disciplinary rules are to be tightened, the union may wish to be heard. Initiation of a sound educational program and a sound disciplinary rule may be proposed by the parties or may be obtained by consulting others, such as the Community Relations Service of the Department of Justice or the EEOC. If no more specific proposals are received, the court will be inclined to use portions of the remedial order in EEOC v. Murphy Motor Freight, 488 F.Supp. 381, 390 (D.Minn.1980). See also, Snell v. Suffolk County, 611 F.Supp. 521, 531-2 (E.D.N.Y.1985), aff'd, 782 F.2d 1094 (2d Cir.1986).

Judgment will be entered in favor of plaintiff and against defendant on Count VIII of the Second Amended Complaint. Equitable relief will be granted after a hearing as to appropriate remedies. A conference to review procedural needs preliminary to such a hearing is scheduled in chambers for 4:00 p.m., February 20,1986. SO ORDERED.

      . It was my ruling that, even if the restrictive Eighth Circuit decision in Sheaf v. Minn., St. P.R. Co., 162 F.2d 110, 113 (8th Cir.1947), is no longer to be followed, as seems likely (Lancaster v. Norfolk & West. Ry. Co., 773 F.2d 807 (7th Cir.1985)), there was insufficient evidence that defendant had reason to believe the suspect employees, Edgar and Doherty, were prone to violence. Compare, Hartel v. Long Island R.R. Co., 476 F.2d 462 (2nd Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 273, 38 L.Ed.2d 224 (1973) (criminal assaults not foreseeable and proposed corrective action not demonstrably likely to have been effective).

      . Whatever differences may exist between railroad workers and courthouse workers, it seems impermissible to exempt them from rules forbidding racial insults. Railroad workers doubtless know how to speak and behave in “mixed company.” They must realize that under Title VII railroad workers are a "mixed company."

      . The jury verdict and my own conclusions are that plaintiff imagines a great deal more racist activity than exists. This is consistent with psychological evidence presented by plaintiff that he has paranoid symptoms, resulting largely from the beating and the incident in the park. Defendant would have me conclude plaintiff is simply lying; I do not find the credibility issues all that simple. Some of the testimony was so bizarre that it apparently is the product of a warped sense of reality. Other portions of the testimony were entirely credible, and plaintiff notably avoided some open-ended invitations to make self-serving statements. My recitations of plaintiffs testimony without comment will be treated as accepted by me as true.

      . Assuming arguendo that no discipline would be appropriate for off-premise or after-hours conduct (a subject I need not deal with until considering remedial action), it seems obvious that employee fighting and like conduct would at least require counselling and inquiry. It may be doubted for example that after-hours sexual harassment by supervisors could simply be ignored. Moreover, someone other than McKen-non apparently did consider the matter merited investigation, although for some reason an alibi of uncertain reliability (at least as to precise time and date) was accepted, and Doherty, unlike Edgar, was not asked to take a polygraph examination.

      . I believe the working conditions issue is a Title VII issue and not an independent issue under 42 U.S.C. § 1981. See Minority Police Officers v. City of South Bend, 617 F.Supp. 1330, 1352 n. 52 (N.D.Ind.1985). It seems to be assumed in some cases, however, that the statutes run parallel, except for the more liberal damage potential of § 1981. Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250 (6th Cir.1985). But Title VII by its terms is more comprehensive than § 1981, and, except as to damages and time limits, cuts deeper.

      . Defendant may invite attendance of union counsel if desired and shall supply the union local with a copy of this memorandum and order. Except for defendant’s ultimate liability for partial attorney’s fees, the union’s interest in equitable relief may be greater than that of Santa Fe.


author: WALTER S. SMITH, Jr., District Judge.

text:
    Lera Greer MATHIS, Plaintiff, v. TEXAS INTERNATIONAL PETROLEUM CORPORATION, Atlantic Richfield Company and Eurafrep, A Subsidiary of Eurafrep, S.A., Defendants.
    Civ. A. No. W-84-CA-152.
    United States District Court, W.D. Texas, Waco Division.
    Feb. 7, 1986.
    J. Anthony Hale, J. Anthony Hale, P.C., Houston, Tex., for plaintiff.
    J. Clifford Gunter, III, Bracewell & Patterson, Houston, Tex., for defendants, Tex. Intern. Petroleum Corp. and Atlantic Rich-field Co.
    William T. Hankinson, Thompson & Knight, Dallas, Tex., for defendant Eura-frep, Inc.
   MEMORANDUM OPINION AND ORDER

WALTER S. SMITH, Jr., District Judge.

Came on this day to be considered Defendants’ Motion for Partial Summary Judgment. The Court, having considered said motion, the responses filed thereto, and having heard argument from counsel on this issue, enters the following memorandum opinion and order.

It is appropriate for the Court to grant a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure when there exists no genuine issue of material fact. See Meredith v. Hardy, 554 F.2d 764 (5th Cir.1977). In the case at bar, the Court finds no genuine issue exists as to any material fact regarding Plaintiff’s claims for breach of contract and release of acreage, and is of the opinion that a partial summary judgment should be entered for Defendants on those claims.

I. Jurisdiction

Plaintiff’s complaint was originally filed in the 278th Judicial District Court of Leon County, Texas, and the cause was properly removed to this court by defendants pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441(b). Plaintiff is a resident of Leon County, Texas. Defendant Atlantic Rich-field Company (“ARCO”) is a Pennsylvania corporation with its principal place of business in Los Angeles, California. Defendant Eurafrep, Inc. (“EURAFREP”) is a Delaware corporation with its principal place of business in a state other than Texas. Defendant Texas International Petroleum Corp. (“TIPCO”) is a Delaware corporation with its principal place of . business in Oklahoma City, Oklahoma. Diversity jurisdiction therefore exists in accordance with 28 U.S.C. § 1332. The amount in controversy exceeds the sum of $10,000 exclusive of interest and costs. This court, therefore, has jurisdiction to hear this case.

Plaintiff’s first amended complaint against defendants TIPCO, ARCO, and EU-RAFREP alleges breach of contract, breach of the implied covenant to produce proper quantities from existing wells, breach of the implied covenant of further exploration, a request for a release of acreage outside the two producing oil units, and seeks damages for real property damage. The motion for partial summary judgment filed by Defendants TIPCO and ARCO and joined in by EURAFREP relates only to the claims for breach of contract against TIPCO and the claim for a release of acreage against all three Defendants.

II. Release of Acreage

The Plaintiff, Mrs. Lera Greer Mathis, as lessor, and Defendant TIPCO, as lessee, executed an Oil and Gas Lease (“Mathis Lease”) on December 9, 1977, as part of TIPCO’s “Pigeon Roost Project”. The Mathis lease covered 653.44 acres of land located in Leon County, Texas. The lease is composed of two tracts of land; the first tract consists of 322.44 acres and the second tract consists of 331 acres. The lease contained a five year primary term within which the lessee had to begin operations. The lease also contained a “pooling” clause and a “Pugh” clause. Defendants ARCO and EURAFREP have been assigned interests in the mineral rights by TIPCO.

Production was obtained on the property through two producing oil wells before the expiration of the primary term. On November 20, 1981, Defendant TIPCO executed two instruments entitled “Declaration of Pooled Unit” which referred to the two producing wells on the Mathis property. These wells were referred to as the “Mathis No. 1” and the “Mathis No. 2”. The land described in these two instruments is contained wholly within the Mathis lease.

The Court finds that the facts material to the “pooling” clause and the Pugh clause embodied in the Mathis Lease are undisputed. Neither party disputes the validity of the lease for its primary term of five years beginning December 9,1977 and continuing to December 8, 1982. Neither party disputes that the lease would continue in effect after December 8, 1982 as long as “operations” continued on the leased land and unless the Pugh clause operated to limit the acreage of the continued leasehold to a “pooled” unit or units. Neither party disputes that one producing well is present on each of the two Mathis tracts and that the presence of those wells would constitute “operations” sufficient to extend the entire lease were it not for the Pugh clause. And further, neither party disputes that Defendant TIPCO filed two Declarations of Pooled Unit, each describing 40 acres surrounding the two producing wells and each describing acreage wholly within the Mathis lease.

The dispute thus boils down to an interpretation of the lease and especially the pooling clause and the Pugh clause. The Court finds that there is no ambiguity in the language of the Mathis lease. The interpretation of the lease is thus a matter of law, and the Court will look to the lease agreement alone as an expression of the intention of the parties. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968).

The first question of interpretation is whether a “pooled unit” was created by TIPCO pursuant to the lease. The Court finds that two “pooled units” were created by the Declarations filed by TIPCO November 20, 1981. The provisions of Paragraph 4 of the Mathis lease describe the usage of “pooled units” within the terms of the lease:

Lessee is hereby granted the right, at its option, to pool or unitize any land covered by this lease with any other land covered by this lease and/or with any other land ... so as to establish units_(Emphasis added.).

Defendant TIPCO in fact exercised this option and created two “pooled units” by its November 20, 1981 Declarations. Whether these “pooled units” conform to the usage of the term “pooled units” in similar leases is not relevant here, because the Pugh clause, Paragraph 15, refers only to “a pooled unit or units established under the provisions of Paragraph 4 (Emphasis added).”

The question then is whether the Pugh clause operates to release the leased acreage outside of the “pooled units” from provision for continuation of the lease beyond its primary term. The Pugh clause provides in relevant part as follows:

[AJfter the end of the primary term drilling operations on or production from ... a pooled unit or units established under the provision of Paragraph 4 hereof which unit embraces land covered hereby and other land, shall maintain this lease in force only as to all [minerals] ... under the surface of the land described in any instrument or instruments identifying any unit or units ... (Emphasis added.).

This wording unambigiously provides an additional requirement before the pooling of units is to trigger operation of the Pugh clause: the “pooled unit” must embrace Mathis lease land and other land. As noted before, it is undisputed that the “pooled units” created by TIPCO embraced land on the Mathis lease only. Therefore, the provisions of the Pugh clause are not triggered into effect by the Defendant’s pooling of units; consequently, the other provisions of continuing the lease will apply-

It is undisputed that without the Pugh clause restriction, the two producing wells on the Mathis tracts operates to continue the lease.

With the lease so construed, the Plaintiff’s cause of action for release by the Defendants of the non-pooled acreage of the Mathis lease is without merit as a matter of law.

III. Breach of Contract

In 1982, nearing the end of the five year primary term, TIPCO began negotiations with Mrs. Mathis to renew her lease. The negotiations occurred between Ms. Carla J. Albright, an agent of TIPCO, and Dr. Tommy Shultz, Mrs. Mathis’ nephew. Dr. Shultz also acted as an agent for his mother and another aunt, Mrs. McWilliams, in leasing their interests in additional property within the Pigeon Roost Project. Negotiations proceeded for several months with several drafts of leases being exchanged and modified.

On April 27, 1982, Dr. Shultz sent a letter to Ms. Albright stating that he was enclosing a proposed lease sent to him from TIPCO with some changes he felt were necessary before the lease could be accepted.

On May 7, 1982, Ms. Albright responded to Dr. Shultz’s letter of April 27. Ms. Albright enclosed four leases covering the interests of Dr. Shultz’s mother, aunt Mrs. McWilliams and aunt Mrs. Mathis in the Pigeon Roost Project. One of the leases covered the Mathis property. The other three leases covered the interests owned by Mrs. Shultz and Mrs. McWilliams in additional property. These leases modified the proposed lease sent by Dr. Shultz on April 27.

Ms. Albright’s May 7 letter contained, inter alia, the following paragraphs:

If you find the terms of these leases agreeable, please have the leases properly executed and each signature notarized. We also request that social security numbers are written in below each signature. Upon execution of the leases, please take the leases and attached bank drafts to the collections department of your bank. Your bank will then forward the drafts and leases to our bank for payment. TIPCO will then remit payment to your bank(s) for the amount due. Please retain a copy for your files.

Apparently, these leases were never executed because on May 21, 1982, Ms. Al-bright sent a brief letter to Dr. Shultz which reads as follows:

Dear Dr. Shultz:
Attached hereto please find one copy of the Lera Greer Mathis lease which has been agreed upon by both of us. I will inform you of the time that we will be able to meet with your Aunt on Thursday. Thank you for all of your help. Sincerely,
s/Carla J. Albright

TIPCO representatives were scheduled to meet with Dr. Shultz and Mrs. Mathis on Thursday, May 27, 1982, to hand deliver a final copy of the lease and be present when Mrs. Mathis signed the lease.

The meeting referred to in the letter never occurred. TIPCO later determined that a new lease was not necessary due to their belief that the two producing oil wells were sufficient to hold the original lease beyond the primary term. This determination was conveyed to Dr. Shultz in a letter from TIPCO landman Michael L. Lee dated June 16, 1982.

Plaintiff’s breach of contract claim arises from an assertion that Plaintiff and TIPCO had entered into a new lease dated May 21, 1982. Defendants contend that no new contract resulted for three reasons: 1) said contract would violate the Statute of Frauds; 2) there was no offer and acceptance; and 3) no consideration to support the alleged contract exists. The Court will address each of these contentions in turn.

A. Statute of Frauds

Defendant TIPCO argues that enforcement of the contract is barred by the Statute of Frauds. Tex.Bus. and Comm. Code § 26.01 (Vernon 1968 & Supp.1985). However the signed draft given by TIPCO to Mrs. Mathis would be a sufficient memorandum of the contract to take it out of the Statute of Frauds. Corona Petroleum Co. v. Jameson, 146 S.W.2d 512 (Tex.Civ.App.—Ft. Worth 1940, writ dism.)

B. Offer and Acceptance

As Defendants correctly point out, there must be an offer and acceptance to give rise to a contract. Garcia v. Villarreal, 478 S.W.2d 830 (Tex.Civ.App.—Corpus Christi 1971, no writ). It is also a basic principle of contract law that the offerer can designate a specific form of acceptance. Franklin Life Insurance Company v. Winney, 469 S.W.2d 21 (Tex.Civ.App.— San Antonio 1971, writ refd n.r.e.) The May 7th letter from Ms. Albright to Dr. Shultz contained a specific provision for the manner of Mrs. Mathis’ acceptance of TIP-CO’s lease. Mrs. Mathis was to accept the lease by executing the lease, having her signature notarized and including her Social Security Number under her signature. She was to then take the executed lease with the bank draft to her bank. Her bank would forward these documents to TIP-CO’s bank for payment and the bank draft would then be honored.

The proposed lease included with this letter was dated May 5, 1982 and was not accepted by Mrs. Mathis. There were additional negotiations between Dr. Shultz and Ms. Albright from May 7 until May 21, 1982. Ms. Albright then sent a copy of another proposed lease for Dr. Shultz to review before TIPCO representatives met with Mrs. Mathis on Thursday, May 27, 1982, to execute the lease.

The proposed lease included with the May 21 letter was one which, according to the letter, the parties had “agreed upon.” Even so, the agreement was not yet binding because the designated requirements of acceptance had not been met. This proposed lease is best characterized as one which the plaintiffs considered accepto&Ze, but not yet accepted. Negotiations continued between Dr. Shultz and TIPCO and the formalities of acceptance were agreed to be postponed until Thursday, May 27. On that date, the original of the lease was to be hand delivered by TIPCO to Mrs. Mathis for her signature. The Thursday meeting never occurred and Mrs. Mathis never signed the lease.

The Court finds it undisputed that the method of acceptance as prescribed by TIP-CO and as understood by both parties, was to include the actual signing of the lease by Mrs. Mathis (Letter of May 7; Plaintiffs Reply to Defendant’s Response, p. 3; Shultz deposition, pp. 43, 46.) It is also undisputed that Mrs. Mathis never signed the lease and that the negotiations were discontinued by the letter dated June 16.

The law is well-settled in this area: No binding contract was formed because Mrs. Mathis did not accept the TIPCO offer in the prescribed manner. Her power to accept was then terminated by the revocation of the offer. The parties are left in the same position as before. Town of Lindsay v. Cooke County Electric Cooperative Association, 502 S.W.2d 117, 118 (Tex.1973); Antwine v. Reed, 145 Tex. 521, 199 S.W.2d 482 (1947); Kurio v. United States, 429 F.Supp. 42, 64 (S.D.Tex.1970).

C. Lack of Consideration

The Defendants are also correct in pointing out that the alleged contract would not be enforceable for failure of consideration. This Court has already determined that the tracts of land which would have been covered by the new lease were already leased to TIPCO under the original Mathis lease. The Plaintiff thus would not have been able to convey the leasehold interest in those tracts to TIPCO because TIPCO already held them. The leasehold being already in the hands of TIPCO, it could furnish no consideration for a new lease contract with TIPCO. Raynor Cattle Co. v. Bedford, 91 Tex. 642, 45 S.W. 554 (1898).

IV. Conclusion

This Court is empowered by Fed.R.Civ.P. 56 to enter summary judgment on claims where there is no genuine issue as to any material fact. In accordance with the foregoing,

IT IS ORDERED, ADJUDGED and DECREED that Defendants’ (TIPCO, ARCO, and EURAFREP) Motion for Summary Judgment on the claim for release of acreage be and is hereby GRANTED. Plaintiff is to take nothing on this claim.

Additionally, IT IS ORDERED, ADJUDGED and DECREED that Defendant TIPCO’s Motion for Summary Judgment on the claim for compensatory damages for breach of contract be and is hereby GRANTED. Plaintiff is to take nothing on this claim.

Additionally, IT IS ORDERED, ADJUDGED, and DECREED that Defendant TIPCO’s Motion for Summary Judgment on the claim for punitive damages for breach of contract be and is hereby GRANTED. Plaintiff is to take nothing on this claim.

Said Judgment is to be without prejudice to or effect to Plaintiff’s remaining claims for damage to the surface estate, for termination of the lease, for breaches of implied covenants, and for fees and costs associated therewith.

IT IS FURTHER ORDERED that discovery continue in this cause until April 4, 1986, and the parties shall submit an agreed pre-trial order by May 5, 1986.

IT IS SO ORDERED.


author: MORAN, District Judge.

text:
    Ann TRINKLE, Plaintiff, v. BELL LITHO, INC., Defendant.
    No. 85 C 2205.
    United States District Court, N.D. Illinois, E.D.
    Feb. 7, 1986.
    Ann Trinkle, pro se.
    Carl S. Tominberg and Fredric Bryan Lesser, Chicago, Ill., for defendant.
   MEMORANDUM AND ORDER

MORAN, District Judge.

This is a Title VII pregnancy discrimination case in which plaintiff has moved for appointment of counsel. In a memorandum and order dated October 22, 1985, this court continued consideration on the appointment-of-counsel petition until plaintiff (1) demonstrated her efforts to obtain private counsel and (2) explained why she didn’t file her complaint here until four months after the EEOC sent her right-to-sue letter.

Defendant seized on the timing question and deposed plaintiff to determine the facts revolving around the right-to-sue letter. Now that the court has a better idea of what went on, it has decided ¡plaintiff deserves court-appointed counsel.

In September 1984 the EEOC informed plaintiff that it had dismissed her charge and that she should expect the right-to-sue letter in the mail. Her EEOC file shows that although a letter was sent by certified mail on November 15,1984, it was returned unclaimed on December 7. Plaintiff claims she never received either the letter or any notice that certified mail was waiting for her. At the end of February 1985 plaintiff called the EEOC to inquire when the letter would be sent. After several phone calls of this nature she finally just went down to the EEOC and picked up a right-to-sue letter. She filed her complaint here the next day, March 18, 1985.

The 90-day filing requirement in Title VII, 42 U.S.C. § 2000e-5(f)(l), operates as a statute of limitations which can be tolled or waived. Jones v. Madison Service Corp., 744 F.2d 1309, 1314 (7th Cir.1984), citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). In our first memorandum and order we had assumed that tolling or waiver of the 90-day requirement was the issue. However, given the facts as we now understand them, the question is whether the 90 days begins to run on receipt of actual or constructive knowledge of one’s right to sue.

The Seventh Circuit has developed a three-pronged approach to the issue. In cases where the right-to-sue letter is mailed to plaintiffs residence but received by someone other than the plaintiff, the 90 days commences on the date the claimant “actually receives” the letter. Archie v. Chicago Truck Drivers, etc., 585 F.2d 210, 216 (7th Cir.1978) (letter received by plaintiff's wife, who didn’t give it to plaintiff for nine days); Killingham v. Board of Governors of State Colleges and Universities, 549 F.Supp. 225 (N.D.Ill.1982). In cases where the right-to-sue letter is sent to plaintiff’s attorney, the 90-day period begins to run when the attorney actually receives the notice. Jones, 744 F.2d at 1312. In cases where the claimant does not receive a right-to-sue letter for some other reason, a “fault” approach is used:

This approach essentially involves looking at whether the delay in bringing suit was the “fault” of the claimant.... [T]his approach requires determining the issue on a case-by-case basis.

Jones, 744 F.2d at 1313 and n. 6. The court used this approach in St. Louis v. Alverno College, 744 F.2d 1314 (7th Cir.1984), where the claimant did not receive his right-to-sue letter because he failed to notify the EEOC of his current address. The court found that the claimant could and should have supplied the EEOC with the information; the fact that he never received the letter was therefore his fault.

Using the “fault” approach here, we find plaintiff did not receive actual notice of the 90-day requirement until she received the letter. Although the EEOC informed her she would receive a letter in September 1984 and again in February 1985, and that she needed this letter to file a complaint in court, there is no evidence that they explained the 90-day limitation at any point. Plaintiff (unfamiliar with Title VII and unrepresented by counsel) cannot be held to have had actual knowledge of the requirement through these conversations. See Jones, 744 F.2d at 1313 (“actual knowledge” is the “crucial concept” in this matter). Likewise, although the EEOC did mail plaintiff the right-to-sue letter three times by certified mail, plaintiff never received them. There is no evidence that she was at fault. In this situation she “can hardly be said to have slept on [her] rights if [she] allowed the [90-day] period to expire in ignorance of [her] right to sue.” Archie, 585 F.2d at 216, quoting Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir.1974), rev’d on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).

The court raised the 90-day requirement issue originally because of its concern that counsel should not be appointed to a case barred on limitation grounds. This concern has been lifted and what remains is the merits of plaintiff’s claim. She is charging sex discrimination in that she was fired because she was pregnant. This claim is not frivolous. Even though the administrative agency determined the evidence weighed against her, she is entitled to a de novo review here.

Conclusion

Plaintiff’s appointment-of-counsel petition is granted.

      . Note that this "fault” approach could apply to the first set of cases with results which would not always be consistent with those produced by the "actual receipt” approach. See Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247, 1250 n. 3 (5th Cir.1985) (90 days begins when wife received the letter, even though claimant didn’t see it until later).

      . The Seventh Circuit has penalized plaintiffs who have waited for the EEOC letter by reducing the amount of their backpay award. Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598 (7th Cir.1979), cert. denied, 454 U.S. 1060, 102 S.Ct. 612, 70 L.Ed.2d 599 (1981). In that case the plaintiff, who was herself a lawyer, was fully aware of her right to request a right-to-sue letter after 180 days following the filing of her charge with the EEOC. The court reasoned that "complainant should not be permitted to prejudice the employer by taking advantage of the [EEOC’s] slowness in processing claims,” 603 F.2d at 603. While this reasoning is questionable, see Kamberos, supra (White, J, dissenting), it does not apply here where plaintiff is unrepresented and not schooled in Title VII, and the issue is jurisdiction, not damages. See Killingham, supra, 549 F.Supp. at 226 (the fact that the EEOC did not send right-to-sue letter for eight years did not affect analysis for 90-day filing requirement).


author: TERENCE T. EVANS, District Judge.

text:
    Betty J. ARCHIE, as Special Administrator of the Estate of Rena M. DeLacy, Deceased, Cynthia F. DeLacy, Marlon J. DeLacy, Darwin D. DeLacy, Veronica M. Brumsey, and Randall R. DeLacy, a minor, by Adrian P. Schoone, his Guardian ad Litem, Plaintiffs, v. CITY OF RACINE, Ronald W. Chiapete, George W. Giese, Defendants.
    Civ. A. No. 84-C-926.
    United States District Court, E.D. Wisconsin.
    Feb. 11, 1986.
    Curry First, Perry, First, Reiher, Lerner & Quindel, S.C., Milwaukee, Wis., and Adrian P. Schoone, Schoone, McManus, Hankel, Ware & Fortune, S.C., Racine, Wis., for plaintiffs.
    Joseph E. Boyle, City Atty., and Mark Janiuk, Deputy Corp. Counsel, Racine, Wis., for defendants.
   DECISION AND ORDER

TERENCE T. EVANS, District Judge.

This case was tried to the court on September 24, 25, and 26, 1985. At the close of plaintiffs’ case, defendants Racine County, John Esayian, and Herbert E. Johnson were dismissed from the suit. The following constitute my findings of fact and conclusions of law regarding the claims against the remaining defendants, the City of Racine, Ronald W. Chiapete and George W. Giese.

Three people play central roles in the tragedy that unfolded in Racine, Wisconsin, on May 27 and 28, 1984. First is Rena DeLacy, a black woman who died in her home in the early morning hours of May 28,1984. At the time of her death she was only 43 years old, but her health was not good. The autopsy, performed by Dr. Victor Baylon, revealed the following conditions:

1. Moderate coronary arteriosclerosis.
2. Bilateral arterial nephrosclerosis.
3. Bilateral vesicular pulmonary emphysema.
4. Bilateral acute bronchopneumonia.
5. Bilateral pulmonary edema.
6. Severe fatty liver.
7. Severe fibrosis of pancreas.
8. Benign ovarian cyst.
9. Esophageal ulcer.

Dr. Baylon concluded that the cause of Ms. DeLacy’s death was “respiratory failure due to bilateral vesicular pulmonary emphysema with superimposed bronchopneu-monia.”

The second major actor is Les Hiles, a man well known to some in the Racine community, and almost universally referred to as a “character.” Hiles was with DeLacy the day before she died. He initiated two calls to the Racine Fire Department seeking rescue services.

Third is Giese, a dispatcher with the Racine Fire Department who took both of Hiles’ calls, told DeLacy to breathe into a paper bag, and refused to send the rescue squad to her home.

A supporting minor part is played by Chiapete, the Racine Fire Chief, who was in charge of rescue services for the city.

The events of May 27 and 28, 1984, began at 7:19 a.m. when Hiles called for the rescue squad. The conversation was recorded, and is as follows:

GIESE: Fire Department, Giese.
HILES: Hi. Say, this is Les Hiles, and we have a lady that’s really, aahhhhhh, I don’t know, I’m not a doctor, hyperventilating. She can’t hardly breathe, and I said, well, let’s go down to the emergency ward. Say’s, “I can’t walk,” Ahhhhhhh, so I says, well, I thought I could call rescue squad together, okay. 818 College Avenue
GIESE: What’s the address?
HILES: 818 College Avenue. I’ll meet you out in front.
GIESE: What’s the problem with her?
HILES: She just don’t — just breathing like, you know, she just can’t get her breath or nothing.
GIESE: How old is she?
HILES: Ah, excuse me. Rena, how old are you? Forty-three.
GIESE: Let me talk to her, please.
HILES: Okay. Come here, come here. Wants to talk to you. She ain’t big enough. Four hours don’t people— (Makes sound of a person breathing very hard). See, I’m, I’m Les Hiles you know and I could be the best act in the world but—
GIESE: Let me talk to her. Put her on the phone.
HILES: She’s coming. She ever gets here. I know what’s wrong with her.
RENA: Hello.
GIESE: Hi, what’s, what’s, what’s the problem?
RENA: Hyperthermia.
GIESE: Hyper what?
RENA: Thermia. Having a hard time breathing.
GIESE: Have you ever had this trouble before?
RENA: Once, once.
GIESE: Why don’t you slow down just a little bit and relax?
RENA: And stay in my own apartment?
GIESE: Just relax and don’t breath like you’re breathing.
RENA: Okay.
GIESE: Do me a favor.
RENA: Yes.
GIESE: Get, get a little paper bag.
RENA: A little what?
GIESE: A paper bag.
RENA: Paper bag.
GIESE: And put it over your mouth and breathe into that. That will slow your breathing down.
RENA: Okay, thank you.
GIESE: Okay, bye.
RENA: Bye.

It is clear from listening to the tape that Hiles was anxious to get help for DeLacy. It is also clear when DeLacy spoke that she was in distress. In his testimony Giese acknowledged that he recognized the difficulty she was having. The sounds of her heavy labored breathing are heard on the tape.

Almost eight hours later, at 3:03 p.m. on May 27, 1984, Hiles again called the Fire Department. The conversation was as follows:

GIESE: Fire Department, Giese.
HILES: Hi, this is Les Hiles, Giese.
GIESE: Yeah.
HILES: Listen, this, this lady, ah, my little black girl friend, I, I called before and tried the paper bag. She’s still hyper — how do you say that word, hyperventilating?
GIESE: M’hm.
HILES: But she sat here for six hours. I mean, did, and I asked, “Did you ever do this before? She said, (slurred words) only once in a while. But it scares me, you know, me.
GIESE: Well, if she’s hyperventilating, just, just have her do what I told you to do. She’s going to have to breathe into that bag.
HILES: Yeah, but.
GIESE: Over her nose and her mouth and then slow her breathing down.
HILES: Listen to me now. Is there anything do with the heart?
GIESE: No.
HILES: It isn’t going to beat the heart out?
GIESE: No.
HILES: Cause I know . like my chest when.I’m talking. You know who I am. Les Hiles.
GIESE: M’hm.
HILES: The swimmer? Okay, what I thought, my God, man, maybe it’ll wear her heart out.
GIESE: No.
HILES: No? Okay. Say, what’s your first name?
GIESE: George.
HILES: Oh, thanks a lot.
GIESE: Okay.
HILES: Thank you very much.
GIESE: Yeah.
HILES: Bye.

Early on May 28, 1984, Hiles found De-Lacy dead, sitting in a chair in her apartment. He called the police and Sgt. M.S. Ackley was one of the officers who arrived at the scene to investigate. Ackley confirmed that DeLacy was dead and called the Coroner’s Office.

Hiles told Ackley of his calls for the rescue squad. Before he left the scene, Sgt. Ackley called the Fire Department to check to see if the rescue squad had been called. His report as to what he learned is as follows:

It should lastly be noted that while the writer was at the home awaiting the arrival of the Assistant Deputy Coroner, I did make contact with the Racine Fire Department. I spoke with the third shift phone operator and advised him of the allegations made by MR. HILES. The third shift dispatcher said that he had not talked with a day shift operator, but he would gladly check the log for rescue runs at that address. The day shift operator further stated they had no logs listing of run with a rescue at that address. The night shift operator stated he would recontact the day shift operator in the morning, and see if any such call did indeed come in. The midnight phone operator from the Fire Department did state that he very seriously doubt it that they would not respond to the call, as they will respond to almost all calls for service irregardless of the frivolity of the alleged problem.

Sgt. Ackley’s testimony indicates that he was immediately concerned that the situation had been handled inappropriately.

The policy of the Racine Fire Department as to rescue calls, in Municipal Ordinance 5.11.020, is that the Fire Department answers all calls as delineated by the Chief or the Assistant Chief. Fire Chief Chiapete states that the Department answers “all emergency calls.” No written statement exists as to what constitutes an emergency.

Chiapete testified at trial that Giese should have dispatched the rescue squad to DeLacy. Chiapete would have done so. But he also stated that he could understand how Giese came to a different conclusion.

Jeffrey G. Peterson, Assistant Chief of the Racine Fire Department in charge of training in May, 1984, stated that the verbal policy of the Fire Department was to send rescue units to all emergency calls. He also stated, in response to hypothetical questions, that a rescue squad should have been sent in a situation such as the DeLacy situation. According to Peterson, the only information it is necessary to give to the dispatcher is the address and the type of service required. The dispatcher likes to have the name of the person as well, in case the address given is incorrect.

An official investigation into Giese’s conduct resulted in the following Press Release from Chiapete, which is quoted here in part:

Addressing the specific incident of May 27, 1984 my conversation with Pvt. Giese indicates to me that he came to the conclusion, based on the conversation with Ms. DeLacy and Mr. Hiles, that an emergency situation did not exist. My review of the tapes of those conversations indicates that his conclusion is not entirely unwarranted. It is my view that Pvt. Giese made a judgment call based on his present analysis of the conversations with the calling parties. I believe that his decision was honestly made and without any intent on his part to refuse service or harm any person.
In view of my analysis of the situation it is my present intention not to impose any disciplinary action on Pvt. Giese.
Viewing the entire situation from the perspective of hindsight, however, I believe that it may have been better judgment if Pvt. Giese had dispatched the rescue unit. Hindsight is, of course, always perfect, and it is difficult to say what any individual would or would not do at the time an incident arises.
At present my department does not have a written policy with respect to the discretion of dispatchers, and that matter is presently under review by Assistant Chief Jeffrey Peterson who recently assumed the duties of the department training officer.
The department naturally regrets the unfortunate death of Rena DeLacy but cannot assume responsibility for it. At worst, the department can be faulted for an error of judgment which we believe is understandable in view of the circumstances, and must be judged from the perspective of the thousands of calls received by our department each year, and the great number of persons who are helped by our rescue service. We have never refused and never will refuse to send our rescue units in known emergency situations.

Why did Giese decide not to send a rescue squad to the DeLacy home? Was it because Rena DeLacy was black? Was it because he didn’t believe Les Hiles? Was it because he didn’t think a true emergency existed? The first question, from a constitutional standpoint, is the most important. The answer to it is “no”. Giese specifically denied that the refusal to send aid was due to DeLacy’s being a black woman. A review of the rescue squad calls shows that in fact no pattern of discrimination against blacks on this point in Racine can be established. On this question, I believe that Giese’s failure to act was not race motivated.

Race aside, Giese has no consistent explanation for his action or, more appropriately, his failure to act. He testified that he had never before decided not to send an emergency vehicle when one was requested. He acknowledged that Hiles was coherent and DeLacy’s voice showed that she was in distress. Giese testified, however, that Hiles was known to him and that he believed that Hiles was a “jerk”. At a deposition Giese had testified that he did not refuse to send the ambulance on the basis that it was Hiles who had requested it. Later, however, he changed an answer on the deposition. The manner in which the change was made is as follows:

Q. Would you tell Mr. Giles the Court Reporter tonight of the change that you wish to make and the reason for the change?
A. The change is on page 18, the question is line 2. My answer to that question was “True”. I believe that it should have said “False”. On the day that Mr. Hiles called, I believe that I didn’t send the rescue squad is because he was the caller. And I believe that just from reputation I knew he is the type of a nuisance that it was more than likely a needless type call, and I believe that’s why the rescue squad wasn’t sent.

At trial, Giese said he didn’t know, that he couldn’t explain why he hadn’t sent the rescue squad. He also testified that he didn’t know why he told DeLacy during both calls to breathe into a paper bag.

I find absurd Giese’s apparent belief that his refusal to send the rescue squad can somehow be justified because Hiles was the one who asked for it. It is undisputed that Hiles has a reputation in Racine: he was in the County Jail at the time of the trial; he drinks; he is described as an iconoclast, a character; he described himself on one of the tapes as the swimmer, which has apparently significance beyond the ordinary. Nevertheless, on the tapes he is lucid; it is clear what he wants; his voice reflects the urgency of the situation. At trial he was articulate and perfectly capable, in my view, of judging when an emergency would exist, and also perfectly capable of describing it. In addition, it should be noted that, with no difficulty, the Racine Police Department responded to his call regarding DeLacy’s death.

That Giese’s responses to Hiles’ calls were inappropriate cannot seriously be disputed. Whether Giese’s conduct was stupid, or more charitably just poor judgment, however, is not the issue. The issue is whether a constitutional claim has been presented. Has the defendant’s failure to provide DeLacy with rescue services violated a constitutional duty owed to her?

A preliminary hurdle must be overcome in establishing liability against Chiapete and the City: they can be held liable only if plaintiffs can establish that the alleged violation arose from official custom or policy. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiffs contend that the policy of the Fire Department to answer all emergency calls was too vague to provide meaningful guidance to a dispatcher and allowed the DeLacy situation to occur.

Monell has spawned a number of cases which attempt to establish that allegedly unconstitutional conduct occurred, for instance, because of a city’s inaction, inadequate policy, lack of supervision, or inadequate training of the individual who harmed a plaintiff. In such a case, the Supreme Court has recently decided in City of Oklahoma City v. Tuttle, — U.S.-, 105 S.Ct. 2427, 85 L.Ed.2d 791, 53 U.S.L.W. 4639 (1985), that a single incident cannot establish fault on the part of a policymaker. The failure to train employees or to take adequate action when they act improperly is distinguished from the situation in Monell. In Monell, the city had an affirmative policy which in itself violated the rights of the plaintiffs; one incident in which the policy was implemented was sufficient to establish a violation. However, where, as here, a plaintiff is contending that an inadequate policy allowed a plaintiff’s rights to be violated, a single incident will not support a claim against the policymakers. Accordingly, Chiapete, who had no personal involvement in the incident, and the City of Racine must both be dismissed for that reason alone.

As to Giese, however, the issue remains whether plaintiffs have proved a constitutional violation. In claiming that they have not, defendants rely on a number of cases, including Ellsworth v. Racine, 774 F.2d 182 (7th Cir.1985); Jackson v. Joliet, 715 F.2d 1200 (7th Cir.1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720; and Jackson v. Byrne, 738 F.2d 1443 (7th Cir.1984). Plaintiffs rely on other cases, including White v. Rochford, 592 F.2d 381 (7th Cir.1979); Bass v. Wallenstein, 769 F.2d 1173 (7th Cir.1985); and Duncan v. Duckworth, 644 F.2d 653 (7th Cir.1981); and plaintiffs argue that the City of Racine, by deciding to provide emergency services to its citizens, created with them a “special relationship” constitutionally requiring Racine to provide emergency services.

Even before Oklahoma City v. Tuttle, supra, it was indisputable that it is much more difficult to establish a claim for failure to provide services than for affirmative misdeeds. A person harmed by an official’s failure to act has a much greater burden than a person harmed by, say, a policeman beating him. The reason is that the Constitution is “a charter of negative rather than positive liberties.” Jackson v. Joliet, supra, at 1203. The Constitution protects a citizen from encroachment against his person but does not require the government to shield him from harm — so much so that in Jackson v. Joliet the court stated:

It is enough to note that, as currently understood, the concept of liberty in the fourteenth amendment does not include a right to basic services, whether competently provided or otherwise.

Notwithstanding, in certain cases, courts have found that the Constitution creates an affirmative duty to provide elementary protective services to specified individuals. However, in every one of the cases, the individuals entitled to services were persons with whom the state had a custodial or other “special relationship.” Thus arises plaintiffs’ argument here that Racine has created a special relationship with its citizens to provide emergency services.

Often the cases requiring the state to provide services involve either inmates or persons in mental institutions who are helpless to take independent measures to obtain services for themselves. Bass v. Wallenstein, supra, fits this mold. Bass was incarcerated at Stateville Correctional Center. At about 11:30 one night he asked for medical assistance. He asked again at 2:00 a.m., and again at 6:00 a.m. Finally, about 8:30 a.m., someone took action to help him. However, there was more bungling before Bass finally arrived at the prison hospital at 8:45 a.m. He died of cardiorespiratory arrest. A finding of liability against various prison officials was sustained.

Similarly, the state also has a duty to protect inmates of state mental hospitals from known risks of assault. Spence v. Staras, 507 F.2d 554 (7th Cir.1974).

In certain unique situations, officials are under a duty to protect citizens who are not institutionalized. Police officers are required to render aid to a person being beaten by fellow officers. Byrd v. Brishke, 466 F.2d 6 (7th Cir.1972). And in White v. Rockford, supra, police were found liable for leaving unattended small children in a car on the Chicago Skyway in cold weather. The court determined that the actions of the police violated the due process restraint on undue incursions on personal security as well as its restraint of state activities which “shock the conscience.” The case involved “gross negligence” and “reckless disregard” for the safety of the children who, the court said, the police could not avoid knowing would be subjected to dangers from both cold weather and traffic. White has become a case which the Court of Appeals for the Seventh Circuit consistently refers to as one in which a special relationship exists. See Jackson v. Byrne, supra; Ellsworth v. Racine, supra.

However, it appears that as far as persons not in an institution are concerned, a special relationship is not easily established. Ellsworth, supra, was brought by a Racine undercover narcotics agent and his wife. Because of the agent’s activities, his family became the target of threats “from underworld figures.” Police protection was provided for Mrs. Ellsworth while her husband was working. One day she released her guards from duty and that same day she was severely beaten in the back yard of her home. The court reiterated that the fourteenth amendment does not include a right to basic public services:

There is nothing in the Constitution which requires governmental units to act when members of the general public are in danger.

At p. 185. However, the plaintiffs tried to establish that Mrs. Ellsworth was more than a member of the general public; rather, she was said to be a person with a special relationship with the city who enjoyed a constitutional right to protection. Recognizing that the contours of a “special relationship” are hazy, the court failed to find one between Mrs. Ellsworth and the defendants.

Similarly, Joliet police had no duty to save accident victims from their burning car. Jackson v. Joliet. Neither did Chicago city officials have a duty to save children from a burning building. Jackson v. Byrne. In the latter case in fact, the court rejected a last ditch effort by the plaintiffs to argue that although a city was not constitutionally required to provide services, once it established itself as the provider of services it owed a duty to the plaintiffs to do so.

Rena DeLacy, personally, has no greater claim to a special relationship with Racine than do all other citizens of the city. In fact, plaintiffs do not attempt to say that DeLacy, as opposed to other citizens, has a special relationship. In that sense the claim is unlike the Ellsworth claim. The argument here is that because the city has decided that it will provide emergency services to its citizens, it has a special relationship with all citizens of Racine, including Rena DeLacy. This argument has been flatly rejected. See Jackson v. Byrne.

Of course if the reason service is not provided is race, an equal protection violation is established. DeLacy was black. However, as I previously noted, nothing in this case convinces me that Giese failed to act because of DeLacy’s race. He sent rescue squads regularly into the black community. The testimony shows that a high percentage of rescue calls in Racine are to areas with high concentrations of black citizens. That fact neutralizes any conceivable inference which might be drawn that race was a reason for Giese’s failure to send the squad.

The elements of a constitutional violation are a matter of well established legal principles. The Constitution does not protect citizens against all wrongs which they suffer at the hands of state and city officials. Rescue services should unquestionably have been provided to DeLacy. The fact that they were not, however, is not a constitutional violation.

Accordingly, the action is DISMISSED.

      . The advice regarding the paper bag is not without some support. See pages 66 and 67 of Exhibit 126, the Johnson & Johnson First Aid Book, where the following appears on the subject of controlling hyperventilation:


author: CEREZO, District Judge.

text:
    Felix VEGA-VELEZ and Carmen Luisa Ginorio-Gonzalez pro se and on behalf of the marriage community so established, Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. 85-0132CC.
    United States District Court, D. Puerto Rico.
    Feb. 11, 1986.

      Erick E. Kolthoff-Benners, Hato Rey, Puerto Rico, for plaintiffs.
    Daniel F. López-Romo, U.S. Atty., Francisco A. Besosa, Asst. U.S. Atty., Hato Rey, Puerto Rico, for defendant.
   OPINION AND ORDER

CEREZO, District Judge.

This is an action for damages under the Federal Tort Claims Act, 28 United States Code, section 2671, et seq.

Plaintiff Félix Vega suffered an accident while working at the premises of the U.S. Government at its Federico Degetau Federal Building in Hato Rey on January 27, 1980. Plaintiff was a supervisory employee of Vigilante Security Guards which had been contracted by the U.S. Government to perform security services at the premises. The date of the accident plaintiff slipped and fell to the floor during a supervision tour of duty at the Hato Rey Federal Building. He alleges that the floor was wet because of a dripping air conditioner.

As a result of the fall plaintiff suffered injuries and was in pain. He immediately reported the accident to his supervisor at Vigilante’s office where he expressed that he could not work any more that night because he was in great pain. See Vega’s Deposition, pp. 12-13. The day after, January 28, 1980, he reported the accident to the State Insurance Fund. The State Insurance Fund rendered its final decision on November 1983. As a result of the accident plaintiff alleges to have suffered a lumbo sacral sprain, with EMG suggestive of L5 radiculopathy, and an emotional disorder which has caused him a permanent, partial disability of his general physiological functions. He claims he was bedridden for six months and is still suffering pain due to the accident. On April 26, 1984 plaintiff filed his administrative claim with the General Service Administration. The claim for injuries against the United States Government under the Federal Tort Claims Act was filed on January 17, 1985. On September 9, 1985 the United States filed a Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure.

The issue before us is whether the claim against the United States Government under the Federal Tort Claims Act is time barred under section 2401(b) of Title 28 of the United States Code or whether the filing of the workmen’s compensation suit had the effect of tolling said section.

Plaintiff contends that he filed his workmen’s compensation claim in accordance with Puerto Rico Workmen’s Compensation Insurance Act, 11 L.P.R.A. 32, and that he could not sue the third party which caused the accident, the United States Government, until after the final decision of the State Insurance Fund. He argues that state law determines when the cause of action accrues and that considering Puerto Rico Workmen’s Compensation Act his claim did not accrue until after the final decision of the Manager of the State Insurance Fund was rendered in November 1983. He argues that a claim does not accrue until it can be made on the basis of a judicial action. Tessier v. United States, 269 F.2d 305 (1st Cir.1959); Kossick v. United States, 330 F.2d 933 (2nd Cir.1964); Jackson v. United States, 182 F.Supp. 907 (D.C.Md.1960).

Defendant’s position is that the Federal Tort Claims Act constitutes a limited waiver of sovereign immunity and that under the Federal Tort Claims Act accrual is a question of federal law. Defendant also argues that the filing of the workmen’s compensation claim did not have the effect of tolling the statute of limitations under the Federal Tort Claims Act. Section 2401(b) of Title 28, United States Code provides:

(b) A tort claim against the United States shall be forever barred unless it is presented in writing two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

It is well settled that the United States is immune from suit unless it has expressly consented to be sued. The Federal Tort Claims Act is a waiver of immunity of the United States. Section 2401(b) provides a two-year period of limitations applicable to tort claims against the government. The two-year limitation provision is the balance struck by Congress in the context of tort claims against the government. Nevertheless, provisions waiving immunity from suits against the government should be strictly construed. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). In United States v. Kubrick, supra, the Court held that it was not free to construe section 2401(b) so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. The Court also added that in construing the statute of limitations, which is a condition of that waiver, the Court should not take it upon itself to extend the waiver beyond that which Congress intended. Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Indian Towing Company v. United States, 350 U.S. 61, 68-69, 76 S.Ct. 122, 126-27, 100 L.Ed. 48 (1955). Neither, however, should the Court assume the authority to narrow the waiver that Congress intended. Indian Towing Company v. United States, supra. Limitations and eondi-tions upon which the government consents to be sued must be strictly observed and exceptions thereto are not to be implied. Soriano v. United States, supra; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Thus, the requirements of section 2401(b) must be fully adhered to before an action can be brought under the Federal Tort Claims Act. When a sovereign waives its immunity and, by statute, creates a cause of action and consents to be sued, it is a condition precedent to suit that it be filed in exact compliance with the terms of the consent. Childers v. United States, 442 F.2d 1299 (5th Cir.1971).

It has been held that federal law determines when the cause of action accrues for purposes of the Federal Tort Claims Act, Kubrick, supra. In Mendiola v. United States, 401 F.2d 695 (5th Cir.1968) the Court recognized that accrual of a cause of action under section 2401(b) is a matter of federal law. See Quinton v. United States, 304 F.2d 234 (5th Cir.1962) and Beech v. United States, 345 F.2d 872 (5th Cir.1965) wherein the Court expressed: “This circuit has held, in accord with the majority of federal courts, that the accrual of the cause of action is governed by federal, not state law.”

Plaintiff’s contention is that section 2401(b) does not bar his action because he filed his complaint within two years after the final decision of his workmen’s compensation suit and thus his claim did not accrue until that date, November 1983. The case of Mendiola, supra, is illustrative on the issue of accrual under section 2401(b). In that case Mendiola proceeded under Texas law to file his workmen’s compensation claim and after termination of this claim then filed suit against the United States under the Federal Tort Claims Act. He argued that his claim against the United States did not “accrue” within the meaning of section 2401(b) until his workmen’s compensation suit had been terminated. The Court reasoned that even if under Texas law the cause of action against the negligent tortfeasor may not have accrued until the workmen’s compensation suit was finally determined, that is not the case under section 2401(b) for the accrual of the cause of action is a matter of federal law. Thus, as a matter of federal law, where the injury coincides with the negligent act and some damage is discernible at the time, the two-year statute of limitations begins to run. Mendiola v. United States, supra. The Court determined that the two-year statute of limitations began to run on Men-diola’s claim against the United States when he sustained discernible injuries. In our case plaintiff suffered injuries of which he was well aware of on the same day the accident occurred, January 27, 1980, and he filed suit on January 17, 1985, well beyond the two-year period provided by section 2401(b).

In a similar case before this District Court, Dávila Barceló v. United States, 271 F.Supp. 988 (D.P.R.1967), the Court ruled that the suit against the United States was filed after the term of the statute had expired and dismissed the case. In that case, plaintiff suffered a labor accident and his claim was processed through the Puerto Rico State Insurance Fund. After termination of this claim a suit was filed against the United States under the Federal Tort Claims Act. The Court ruled that the two-year limitations period on plaintiffs federal tort claims action began to run the date the accident occurred, and not on the date of the rendering of the final decision by the State Insurance Fund and was thus time-barred.

We must consider whether the filing of the workmen’s compensation claim had the effect of tolling the statute of limitations provided by section 2401(b). The statute’s legislative history contains no indication of a tolling intent. The reviser’s notes concerning the increase of the limitations period from one to two years in 1949 are likewise “silent on any intent to have any tolling provisions wash into the Federal Tort Claims Act.” United States v. Glenn, 231 F.2d 884 (9th Cir.1956), cert. denied 352 U.S. 926, 77 S.Ct. 223, 1 L.Ed.2d 161. The Senate Report elaborating on the 1966 amendment demonstrates a distaste for stale claims, a sentiment common to statutes of limitations. Winston Bros. Company v. United States, 371 F.Supp. 130 (D.Minn.1973), citing S.R. No. 1327, U.S. Code Cong. & Ad.News, 89th Cong., 2d Sess. pp. 2515, 2516 (1966). To the extent that tolling is allowed, this goal of avoiding ancient claims is undermined. Winston, supra. In Simon v. United States, 244 F.2d 703 (5th Cir.1957), the Court held that it could not read into section 2401(b) an exception not embodied therein, however, reasonable such exception might seem.

The rationale frequently expressed for tolling the statute of limitations of section 2401(b) is disability to sue. Numerous cases arising under the Tort Claims Act support the conclusion that disability to sue does not toll section 2401(b). They favor a strict construction of the language, e.g., Jastremski v. United States, 737 F.2d 666 (7th Cir.1984) (child’s minority does not toll the running of period of limitations under section 2401(b)); Pittman v. United States, 341 F.2d 739 (9th Cir.1965), cert. denied 382 U.S. 941, 86 S.Ct. 394, 15 L.Ed.2d 351 (no tolling during minority though guardian ad litem had not been appointed and there was alleged conflict of interest on part of minor’s father); mental incompetency cases: Casias v. United States, 532 F.2d 1339 (10th Cir.1976) (insanity, such as constituted legal disability in most states, does not toll statute of limitations under Federal Tort Claims Act); Jackson v. United States, 234 F.Supp. 586 (E.D.South Carolina, 1964) (insanity or mental incompetency does not suspend or toll federal statute of limitations under Federal Tort Claims Act); but see Zeidler v. United States, 601 F.2d 527 (10th Cir.1979) (mental incapacity to comprehend the elements of possible malpractice claim against United States the statute of limitations would be tolled and would not bar the patient from ever pursuing a remedy for violation of his rights); Pardy v. United States, 575 F.Supp. 1078 (S.D.Ill.1983) (incompetency of plaintiff while in coma tolled federal statute of limitations). In Mendiola, supra, the Court stated that section 2401(b) had not been tolled pending termination of workmen’s compensation suit despite local statute providing for tolling. The Court said “that the Texas statute of limitations would have been tolled pending the termination of his workmen’s compensation suit is irrelevant because section 2401(b) contains no such tolling provisions and does not incorporate expressly or by implication tolling provisions under state law.” See also Fusco v. Johns-Manville Products Corp., 643 F.2d 1181 (5th Cir.1981) where the Court held that tolling provisions of Texas Workmen’s Compensation Act applies only to actions under Texas Act and was inapplicable to suits arising under federal act. Thus, provisions of state law which normally have effect of tolling statutes of limitation are not given that effect when the claim is under Federal Tort Claims Act. Childers v. United States, 442 F.2d 1299, (5th Cir.1971). See also Soriano v. United States, supra, 352 U.S. at 273, 77 S.Ct. at 272, wherein the Court said that Congress was entitled to assume that the limitation period it prescribed meant just that period and no more suggesting that even the outbreak of wartime hostilities would not toll section 2401(b). These cases exemplify the “unbending interpretation that has been given to section 2401(b) in accordance with the manifested legislative goal of the expeditious bringing and resolution of tort claims against the government.” Winston Bros. Co. v. United States, supra, pp. 135-136. Mendiola, supra, quotes Quinton v. United States, 304 F.2d 234 (5th Cir.1962) in holding that:

Obviously, if the various states’ rules could severally determine when a claim accrued against the Government under Section 2401(b), the uniformity which Congress sought by enacting that section would be, for all practical purposes, a goal impossible of attainment. Differing state rules as to when a tort claim accrues would necessarily produce diverse decisions as to the effect of Section 2401(b). The mere alteration by a state of its rule as to the accrual of a particular claim would alter Section 2401(b) just as effectively as if Congress itself had formally amended that section.

304 F.2d at 236.

The incorporation of diverse state tolling provisions into section 2401(b) would undermine the uniform application of the two-year period for filing suit just as effectively as would incorporation of state laws for the accrual of a cause of action.

Mendiola, supra, at p. 698.

Federal law governs the accrual of the cause of action. As a matter of law plaintiff’s claim against the United States accrued the date he was injured, on January 27, 1980. Since two-year statute of limitations had expired when the action was filed before this court on January 17, 1985 and the tolling provisions under Puerto Rico Workmen’s Compensation Law do not have the effect of tolling section 2401(b), the claim against the United States is time barred. This case is, therefore, DISMISSED.

SO ORDERED.