author: CAFFREY, Chief Judge.

text:
    BOSTON AND MAINE CORPORATION, Petitioner, v. R.M. LENFEST, Jr., Individually and as Chairman of The General Committee of Adjustment, United Transportation Union (T), et al.
    Civ. A. No. 85-4106-C.
    United States District Court, D. Massachusetts.
    Nov. 27, 1985.

      John E. O’Keefe, John J. Nee and Kinga LaChapelle, Billerica, Mass., for petitioner.
    James Freeley, Jr., Feeney & Freeley, Boston, Mass., for respondents.
    George J. Cahill, Jr., Cahill, Goetsch & DiPersia, John G. DiPersia, New Haven, Conn., for Rogert M. Lenfest, Jr.
   MEMORANDUM

CAFFREY, Chief Judge.

This is an action for a permanent or, alternatively, a preliminary injunction brought by the Boston and Maine Corporation (hereinafter the “B & M”), a common carrier by railroad engaged in interstate commerce transporting freight in New York, Massachusetts, Maine, New Hampshire, Vermont and Connecticut and transporting passengers in Massachusetts, New Hampshire and Vermont, against the General Committee of Adjustment, United Transportation Union (hereinafter the “Committee”), Roger M. Lenfest, Jr., Chairman of the Committee, and others. The Committee is a subordinate body of the United Transportation Union (hereinafter the “UTU”), an unincorporated association and a labor organization which represents persons employed as conductors and trainmen by the B & M for purposes of collective bargaining under the Railway Labor Act, 45 U.S.C. § 151 et seq. (hereinafter the “RLA”). The B & M claims, and respondents do not dispute, that this case arises under the RLA and involves an amount in controversy exceeding the sum of $10,000.00, exclusive of interest, costs and reasonable attorneys’ fees. The Court’s jurisdiction is grounded upon 28 U.S.C. §§ 1331 and 1337.

This action stems from a general work stoppage and picketing on November 4, 1985 by members of the UTU, ordered by respondent Roger M. Lenfest, Chairman of the General Committee of Adjustment of the UTU. After a hearing in the afternoon and early evening of November 4, District Judge Frank J. Murray granted the B & M’s request for a temporary restraining order enjoining the respondents from engaging in any such refusal to work until November 13, 1985. On November 12, 1985 the respondents filed a motion to dismiss the B & M’s complaint on the grounds of lack of subject matter jurisdiction and failure to state a claim. A hearing on the preliminary injunction was held on November 14, 1985. At the close of the hearing, this Court extended the temporary restraining order pending its decision on the preliminary injunction.

At approximately 4:00 a.m. on Monday, November 4, 1985, members of the UTU appeared at various locations throughout the B & M system carrying signs indicating that the UTU was on strike. The strike caused a cessation of both B & M’s passenger and freight services during the entire day of November 4. As a result, approximately 25,000 regular commuters on the B & M were forced to either find alternative transportation to and from work, or to stay home. The B & M also received numerous complaints about delays in and the lack of freight service. The strike was called by Lenfest on his own ipse dixit in his capacity as Chairman of the Committee. On Sunday, November 3, Lenfest decided to call the strike after informally discussing a strike with chairmen various locals sitting on the Committee. The B & M received no notice whatsoever prior to the strike that a work stoppage was to be called or why it was to be called. I find that Committee Chairman Lenfest made himself inaccessible to the B & M officials on the morning of the strike. The first thing the B & M was able to learn about the reason for the strike was from picketing conductors and trainmen. When questioned by B & M officials, they stated that it involved safety.

Respondents now assert that the reason Committee Chairman Lenfest called the strike was that the B & M repeatedly had failed to provide flagging at construction sites along the railroad to alert oncoming trains that there might be workers on or near the tracks. Lenfest testified at the hearing on November 4 that the B & M’s failure to provide flagmen at various unidentified times and locations had created unsafe working conditions. Lenfest could not recall any such unsafe conditions existing during the week prior to November 4. On May 3, 1985, approximately six months earlier, the UTU filed a notice pursuant to Section 6 of the RLA, 45 U.S.C. § 156, with respect to the B & M’s failure to provide flagging protection. A meeting between the B & M and the UTU over this notice took place on June 5, 1985. At the present time, the matter is pending before the National Mediation Board.

At the hearing on November 14, Lenfest testified that prior to calling the strike he had received reports of a failure to provide flagging protection at four or five specific locations. In light of Chairman Lenfest’s inability to provide any information on November 4, the day of the strike, regarding specific instances of the B & M’s failure to provide flagging protection on its tracks, the Court is skeptical of his claimed ability to do so on November 14. While it is doubtful from the record whether Lenfest knew on November 4 of any presently or recently existing unsafe conditions resulting from the B & M’s failure to provide flagging? protection along the B & M system, it is clear and I find that Lenfest never notified anyone at B & M of specific situations of non-flagging. I find that at certain times prior to November 4 Lenfest expressed his general concern to B & M Assistant Manager of Crew Dispatching, Roger Audette, that flagging be provided and that only UTU members do the flagging. However, I also find that Lenfest never reported any specific instances of B & M’s failure to provide flagging. Audette testified that the last time he spoke with Lenfest was on October 25 and that Len-fest did not mention flagging or a possible work stoppage. Lenfest, by his own admission, never discussed the flagging problem with anyone at B & M other than Audette. John Rafferty, the Chief Inspector of the Construction Department at B & M, testified that it is solely his responsibility to decide whether to give flagging protection to a contractor and that no one has ever informed him that contractors were working without flagging protection. John J. Cronin, the Senior Director of Labor Relations at B & M, testified that he was never requested by anyone to confer over the B & M’s failure to provide flagging. Cronin is the officer within B & M to whom such a request should be made.

At the November 14 hearing, William Kempton, a locomotive engineer for the B & M, testified that on October 2 his train nearly collided with a tractor trailer carrying railroad ties across the tracks. Kemp-ton testified that he did not see a flagman anywhere near the tracks. Leo MacDonald, a yardman for the B & M working in Boston Yard 14, testified as to a near accident between a locomotive and a crane in the railroad yard on November 1. MacDonald testified that the lack of flagging in the yard created an unsafe condition which caused him to refuse to work on November 4. Although MacDonald met with Chairman Lenfest on November 3, he testified that he did not mention this near accident, nor did he inform the B & M that he would cease working unless a flagman was placed in the yard.

The B & M contends that respondents’ system-wide work stoppage on November 4 constituted an illegal strike because respondents failed to employ the dispute resolution procedure for “minor” disputes set forth in Section 3 of the RLA, 45 U.S.C. § 153. The B & M seeks an injunction to temporarily or permanently enjoin the respondents from striking and picketing. Respondents argue that their work stoppage was not a strike over either a “minor” or a “major” dispute and that they therefore had no legal obligation to proceed under the procedures set forth in Section 6 or Section 3 of the RLA; they claim that the work stoppage was a valid refusal to work under hazardous conditions pursuant to Section 10 of the Federal Railroad Safety Act, 45 U.S.C. § 441 (hereinafter the “FRSA”), as amended. The respondents vigorously contend that because they have invoked the protection of Section 10 of the FRSA, this Court does not have jurisdiction to issue an injunction against the work stoppage. For the reasons discussed below, the Court agrees with petitioner B & M and rules that it is entitled to a preliminary injunction enjoining respondents from a general work stoppage such as that which Committee Chairman Lenfest called on November 4.

Section 4 of the Norris-LaGuardia Act deprives federal courts of “jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute.” 29 U.S.C. § 104. Therefore, absent an exception to the Norris-LaGuardia Act, this Court cannot exercise jurisdiction to enjoin the respondents in this action. The United States Supreme Court has held that the Act is not a bar to an injunction in a case for which the RLA provides the process for final decision. Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 42,11 S.Ct. 635, 641, 1 L.Ed.2d 622 (1957). A district court may enjoin either party from altering the status quo during the course of a Section 6 “major” dispute resolution proceeding. Carbone v. Meserve, 645 F.2d 96, 98 (1st Cir.1981). Once the Section 6 procedures have been exhausted, however, the Norris-LaGuardia Act operates to deprive a district court of jurisdiction to grant injunctive relief. Missouri-Kansas-Texas Railroad Company v. Brotherhood of Railroad Trainmen, 342 F.2d 298, 299 (5th Cir.1965). Where either party to a dispute resorts to self-help in a “minor” dispute, a district court may enjoin that party as long as the non-striking party can make the traditional showing of irreparable harm. Carbone, 645 F.2d at 98. Therefore, it is necessary to determine whether this case involves a “major” or a “minor” dispute, or neither.

Congress distinguished between disputes which are required to be handled pursuant to Section 6 of the RLA, 45 U.S.C. § 156, and those which are to be handled pursuant to Section 3, 45 U.S.C. § 153. The United States Supreme Court explained the distinction between Section 6 and Section 3 disputes, saying that “major” disputes are to be resolved under the procedures of Section 6 and “minor” ones under Section 3:

[A ‘major’ dispute] relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.
The second class, [minor disputes], contemplates the existence of a collective agreement already concluded or ... a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one ... In either case the claim is to rights accrued, not merely to have new ones created for the future.

Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886 (1945).

The RLA creates a process of noncompulsary adjustment for “major” disputes. Section 6 of the RLA, 45 U.S.C. § 156, sets forth detailed procedures for negotiation, mediation before the National Mediation Board, and arbitration. If a “major” dispute is not resolved after the parties have exhausted these dispute resolution mechanisms, the parties may resort to self help. Where the dispute is only “minor” the parties are not free to resort to self-help after exhausting the settlement procedures prescribed by Section 3. Instead, the National Railroad Adjustment Board has the authority to impose a binding settlement on the parties. Elgin, Joliet & Eastern Railway Co., 325 U.S. at 724-728, 65 S.Ct. at 1290-1292 (1945).

In this case petitioner B & M contends that the dispute with respect to flagging is a “minor” dispute to be resolved by Section 3 binding arbitration and that it has made a showing of irreparable harm. There is no question that respondents have not sought to invoke the dispute resolution machinery of Section 3. The B & M also asserts that it has made a showing of irreparable harm. Accordingly, the B & M argues that this Court has jurisdiction to issue an injunction against the November 4 general work stoppage by respondents. Notwithstanding the UTU’s filing of a Section 6 notice with respect to the flagging issue on May 3, 1985, the respondents now argue that the flagging issue is neither a “major” nor a “minor” one under the RLA. Respondents argue instead that the November 4 work stoppage was a refusal to work under hazardous conditions, within the meaning of Section 10 of the FRSA, 45 U.S.C. § 441, as amended. Respondents further contend that the exclusive remedy under Section 10 of the FRSA is binding Section 3 (RLA) arbitration. I rule that the dispute over the B & M’s alleged failure to provide flagging in this case is a “minor” dispute, that the petitioner B & M has made a showing of irreparable harm, and that Section 10 of the FRSA does not apply to this case. Accordingly, I rule that this Court has jurisdiction to enjoin the respondents’ general strike.

In Missouri-Kansas-Texas Railroad Co. v. Brotherhood of Railroad Trainmen, 342 F.2d 298 (1965), the Court of Appeals for the Fifth Circuit was faced with the question whether the alleged failure of the railroad to provide union employees safe working conditions was a “minor” or a “major” dispute under the RLA. After reviewing the Supreme Court’s differentiation of those terms in the Elgin case, the court held that such a dispute was, indeed, a “minor” dispute to be resolved pursuant to Section 3 of the RLA. The court explained:

It is true that there is no express written provision in the existing collective agreement between the parties with respect to the working conditions of which the defendant complains. But the common law duty of the plaintiff to use reasonable care in furnishing its employees with a safe place to work is clear, [citation omitted].

Id. at 300. A “minor” dispute, to be handled pursuant to the dispute resolution procedure of Section of the RLA, involves a claim which, in the words of the Supreme Court in Elgin, “is founded upon some incident of the employment relation ... to rights accrued, not merely to have new one created for the future.” Elgin, Joliet & Eastern Railway Co., 325 U.S. at 723, 65 S.Ct. at 1289 (1945). In summary, employees have a legal right to safe working conditions, whether or not the collective bargaining agreement contains a provision to that effect. That right is an incident of the employment relation and any dispute concerning that right is a “minor” dispute to be processed under Section 3 of the RLA.

This Court therefore has authority to enjoin a strike over this dispute if petitioner has made a showing of irreparable harm. The Court finds from testimony presented at the November 4 and November 14 hearings, particularly the testimony of James R. Stoetzel, General Manager of Commuter Service of B & M, and Erwin R. Towle, General Superintendent of the Central Division, Freight of B & M, that B & M has made a sufficient showing of irreparable harm. Moreover, Peter W. Carr, Vice-President Finance Officer of the B & M, and Thomas J. Reilly, also Vice-President Finance Officer of the B & M, stated in affidavits that the B & M is in financial difficulty and dependent upon its ability to maintain a sufficient cash flow on a daily basis. They also stated that continued work stoppage would cost the B & M approximately $492,000 per day and make it extremely unlikely that the B & M could maintain sufficient cash flow to continue its operations.

Respondents argue in their memoranda of law and at the November 14 hearing that the November 4 work stoppage was not a strike over either a “major” or a “minor” dispute; to the contrary, they argue that it was a refusal to work under hazardous conditions. Refusals to work are governed by Section 10 of the FRSA, 45 U.S.C. § 441, as amended. Section 10 reads in pertinent part:

(b) Refusal to work under hazardous conditions
(1) A common carrier by railroad engaged in interstate or foreign commerce may not discharge or in any manner discriminate against any employee for refusing to work when confronted by a hazardous condition related to the performance of the employee’s duties, if—
(A) the refusal is made in good faith and no reasonable alternative to such refusal is available to the employee;
(B) the hazardous condition is of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that—
(i) the condition presents an imminent danger of death or serious injury; and
(ii) there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory channels; and
(C) the employee, where possible, has notified his employer of his apprehension of such hazardous condition and of his intention not to perform further work unless such condition is corrected immediately.
(c) Resolution of disputes
(1) any dispute, grievance, or claim arising under this section shall be subject to resolution in accordance with the procedures set forth in section 153 of this title.

Respondents contend that subsection (c)(1), which provides that “any dispute ... arising under this section shall be subject to resolution in accordance with the procedures set forth in section 153 of this title (Section 3 of the RLA)”, means that Section 3 binding arbitration is the exclusive means for resolving disputes over refusals to work under hazardous conditions. Respondents also contend, without directing the Court to any supporting authority, that it is not for this Court to decide whether the respondents properly fulfilled the terms and conditions of the FRSA. That question, respondents argue, is exclusively a question for an arbitrator, selected in accordance with the procedures of Section 3, to answer.

This Court need not decide whether a district court could exercise jurisdiction over a dispute in which a party has properly invoked the protections of 45 U.S.C. § 441(b)(1) and (c)(1) because this is not such a case. The purpose of Section 10 of the FRSA is clear; it protects a railroad employee from retaliatory action by his employer for a refusal to work under hazardous conditions, after the employee has apprised the employer, where possible, of those conditions and informed the employer that he will not perform further work unless the conditions are made safe. The Legislative History to Section 10 of the FRSA states:

the legislation provides essential protection for the rights of railroad employees. The legislation ensures that certain protections of the Occupational Health and Safety Act (OSHA) are extended to railroad employees ...
The Committee has been informed of many complaints over the years of harassment in situations where a worker notifies authorities of violations, testifies in safety proceedings or institutes an action against a railroad. According to these complaints, harassment includes, but is not limited to, firing, verbal abuse, disproportionate dangerous assignments, and constant and unrelenting supervision. Such retaliatory actions by employers are not to be tolerated in the work place. Section 10 of the bill provides protection for the rail worker under these circumstances. The legislation would forbid discrimination against an employee for, among other things, reporting such violations. Similarly, the legislation would forbid a railroad from discriminating against an employee who refused to work in hazardous conditions presenting an imminent danger of death or serious injury. The Committee strongly believes employees should not be forced to choose between their lives and their livelihoods.

1980 U.S.Code Cong, and Adm.News 3830, 3832.

The purpose of Section 10 of the FRSA was to allow an employee or employees personally faced with a hazardous situation to walk off a job without the fear of retaliation by their employer. In this case, Committee Chairman Lenfest called a general strike of all B & M employees controlled by the UTU General Committee of Adjustment. At the hearing on November 4, the day of the strike, Lenfest could not tell District Judge Murray of any particular present or recent unsafe conditions, resulting from the failure of B & M to provide flagging, confronting any employee on the B & M system. Lenfest’s testimony on November 4, which at best could be characterized as evasive, was that he called a general strike because of past instances where the B & M failed to provide flagging protection at construction sites along the B & M system. Ten days later, at the November 14 hearing, Lenfest said he was able to identify four or five locations along the B & M system where he had received reports in the past that there was inadequate flagging protection. Furthermore, two B & M employees, William Kempton and Leo MacDonald, testified that they had witnessed near-accidents resulting from inadequate flagging protection.

Section 10 of the FRSA was not intended to provide a shield to protect unions from injunctive relief against illegal general strikes. Respondents, after engaging in an illegal general strike, argue that this statute protects them from injunctive relief. The Court rules that the statute does not provide such protection. Even if the statute did apply to this case, respondents failed to comply with the requirements of subsection (b)(1)(C) to notify the B & M of any specific hazardous conditions existing on the railroad and of their intention not to perform further work unless such condition is corrected immediately. Section 10 plainly does not apply to the facts of this case.

The Court’s decision in this case is not a deterrent to railroad employees personally faced with hazardous conditions invoking the protection of Section 10. Whenever an individual railroad employee is personally faced with imminent danger of death or serious injury and there is insufficient time to resort to regular statutory channels of dispute resolution, that employee may notify his employer that he refuses to perform further work unless the dangerous condition is corrected immediately. This is not to say, however, that one man’s danger affords any basis at all in law or in fact for a system-wide strike by hundreds of other employees who are not personally exposed to that danger.

In addition to arguing that the B & M’s complaint must be dismissed because of lack of subject matter jurisdiction and failure to state a claim, the respondents argue that this action is moot. At the November 14 hearing, Committee Chairman Lenfest testified that the B & M has represented to him that any problems regarding the failure to provide flagging have been corrected. Therefore, the respondents argue that there would be no reason to stop working and an injunction would serve no purpose. The Court disagrees and rules that this case is not moot.

The fact that a party voluntarily discontinues an illegal activity does not necessarily moot an action. United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944). In United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), the Supreme Court explained that if a case is held to be moot:

[t]he defendant is free to return to his old ways. This, together with a public interest in having the legality of the practice settled, militates against a mootness conclusion, [citation omitted]. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right, [citation omitted]

In a case factually similar to the instant action, the Court of Appeals for the Seventh Circuit held that an appeal from an injunction against a strike was not mooted by the union’s representation that it had lost interest in striking. Chicago and Northwestern Transportation Co. v. United Transportation Union, 656 F.2d 274, 277 (7th Cir.1981). See also United States v. Generix Drug Corp., et al, 460 U.S. 453, 457 n. 6, 103 S.Ct. 1298, 1300 n. 6, 75 L.Ed.2d 198 (1983) (“The possibility that respondent may change its mind in the future is sufficient to preclude a finding of mootness.”).

The respondents argue that, under the facts of this case, they had a legal right to engage in a widespread work stoppage. If this Court declined to issue an injunction at this time, the respondents would be free to engage in another widespread work stoppage if another dispute over an alleged failure to provide flagging anywhere on the railroad develops. The Supreme Court has said that where a defendant continues to assert the legality of the challenged conduct, that is a factor which tends to show that the case is not moot. Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 42-43, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944). Here, the fact that respondents steadfastly maintain the legality of a general strike in this situation shows clearly that this case is not moot. I rule that the respondents have not carried their “heavy” burden of showing that “there is no reasonable expectation that the wrong will be repeated.” United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).

In summary, I rule that petitioner has carried its burden of proving that it would probably prevail after a full hearing on the merits and will suffer irreparable harm if respondents are not enjoined. The record also shows that substantial harm would be visited upon a substantial segment of the public, namely the 25,000 commuters who rely on the B & M to get to and from their place of employment daily, as well as their employers and those who regularly rely on the B & M’s freight service. Respondents have failed to show that they would suffer any irreparable harm if this clearly illegal strike is enjoined.

Order accordingly.


source: Caselaw Access Project

author: CRABB, Chief Judge.

license: Public Domain

text:
    Rose SALDIVAR, Plaintiff, v. Mateo CADENA, Defendant.
    No. 84-C-685.
    United States District Court, W.D. Wisconsin.
    Nov. 27, 1985.

      Kathleen A. Wagner, Madison, Wis., for plaintiff.
    Maureen McGlynn, Asst. Atty. Gen., Madison, Wis., for defendant.
   OPINION AND ORDER

CRABB, Chief Judge.

This is a civil action in which plaintiff seeks to obtain monetary, equitable, and injunctive relief based on alleged discriminatory actions violative of 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986, and the Wisconsin Constitution. This court has jurisdiction under 28 U.S.C. § 1343(3). The case is before the court on defendant’s motion to dismiss plaintiff’s amended complaint or portions of certain causes of action and to strike certain references from plaintiff’s amended complaint.

Taking the allegations of the complaint as true, and for the sole purpose of deciding this motion, I find the following facts.

FACTS

Plaintiff is a physically handicapped Hispanic woman. She has been an employee of the State of Wisconsin Department of Industry, Labor, and Human Relations since 1972. At all times relevant to this action defendant Cadena has been director of the Bureau of Migrant Services within the Department of Industry, Labor, and Human Relations.

From 1978 until October 1980, plaintiff was employed as a Job Service Specialist IV in the Bureau of Migrant Services. During this period, defendant was plaintiffs immediate supervisor. Defendant subjected plaintiff to continual harassment in the form of abusive comments about plaintiffs sex, race, and handicap, and mimicked her handicapped condition. Defendant spread rumors about the sex lives of women who worked at the Bureau of Migrant Services, telling women that if they wanted to keep their jobs they would have to accede to his sexual advances. These abuses interfered unreasonably with plaintiffs work performance and created an intimidating, hostile, and offensive work environment for plaintiff.

In 1978, plaintiff participated in activities opposing discriminatory policies of the Department of Industry, Labor, and Human Relations. Plaintiffs activities included attendance at meetings and public demonstrations, letter writing, and fundraising. A number of employees who were discharged subsequently brought suit against the department and eventually entered into a consent degree which included a prohibition against the department for retaliating against “individuals who participated on behalf” of the discharged employees. During this period of time, plaintiff associated with individuals such as Cathy Ramsfield and Alcario Samudio, who were among the most active of these demonstrators. Defendant knew of plaintiffs activities and warned plaintiff that her job was endangered by her association with the persons protesting the bureau’s actions. He also attempted to drive her from her job by subjecting her to unwarranted supervisory actions because of her associations and her activities in support of these people. Defendant acted in violation of the consent decree entered into by the department and the discharged employees.

From October, 1980 to the present, plaintiff has been employed in the Job Services Division, Bureau of Employment Programs, as a Job Service Specialist IV, working as an alien interstate clearance coordinator. In December, 1983, defendant interviewed plaintiff for a position in the Bureau of Migrant Services, but he did not select plaintiff for the job, which would have been a promotion for her, although she was more qualified than the man who was hired.

Defendant’s failure to promote plaintiff as well as his verbal abuse of plaintiff, in conspiracy with and with the knowledge of unknown and unnamed others was in retaliation for plaintiff’s advocacy of equal protection for members of the Brown race, female sex, and handicapped class, because of plaintiff’s association with and public support for the individuals protesting discrimination by the Department of Industry, Labor, and Human Relations and because defendant intended to discriminate against plaintiff because of her sex. Through neglect, the Department of Industry, Labor, and Human Relations permitted defendant’s illegal actions to occur.

OPINION

Defendant has moved to dismiss plaintiff’s amended complaint, in whole or in part, on five grounds: (1) all claims which arose more than three years prior to the filing of the initial complaint are barred by the statute of limitations; (2) this court lacks jurisdiction to hear the pendent state claims because plaintiff has failed to plead compliance with the notice of claim requirements of Wis.Stat. § 893.82; (3) the second through eighth causes of action in the amended complaint fail to state a claim upon which relief can be granted under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986; (4) plaintiff does not have standing to assert a claim based on the consent decree and defendant is not bound by the consent decree; and (5) relief in the forms of promotion and pay differential is not obtainable from defendant. Also, defendant has moved to withdraw his request for a jury trial and to strike plaintiffs request for a jury trial as untimely and has moved to strike from paragraph 55 of the amended complaint all references to lawsuits brought by Gustavo Seminario and Ana Maria Schiltz, which have been settled by agreement.

1. Statute of Limitations

Defendant contends that the three year limitation in Wis.Stat. § 893.54 precludes plaintiff from bringing claims that arose more than three years prior to the filing of her original complaint. A limitations defense may be raised and acted upon on a motion to dismiss the complaint where the allegations of the complaint are definite enough to permit consideration of a statute of limitations defense. Zielke v. Wausau Memorial Hospital, 529 F.Supp. 571, 574 (W.D.Wis.1982). In this case, the amended complaint alleges that defendant Cadena became director of the Bureau of Migrant Services in the “summer” of 1978, that all acts allegedly undertaken by Cadena occurred while he was director of the Bureau of Migrant Services, that plaintiff Saldivar was harassed by defendant from “1978 until October, 1980,” and that defendant interviewed plaintiff for a position in December 1983 and denied plaintiff the position. Plaintiffs complaint was filed on August 27, 1984. Considered in the context of the complaint as a whole, these allegations are sufficiently definite to permit consideration of a statute of limitations defense.

Plaintiff has alleged violations of §§ 1981, 1983, 1985(3), and 1986 of Title 42 of the United States Code. In deciding the statute of limitations defense raised by defendant, I must determine the limitations statute applicable to each section.

a. Statute of Limitations in Actions Brought Pursuant to 42 U.S. C. § 1983

About the time plaintiff filed her amended complaint, the United States Supreme Court decided Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), a case which the Court used as a vehicle to attempt to settle the confusion over application of state statutes of limitations to federal actions brought pursuant to § 1983. Because § 1983 does not contain its own limitations period, federal courts are directed to apply the state statute of limitations governing the most analogous cause of action if the state statute “is not inconsistent with the Constitution and laws of the United States.” 42 U.S.C. § 1988. See Board of Regents v. Tomanio, 446 U.S. 478, 483-86, 100 S.Ct. 1790, 1794-96, 64 L.Ed.2d 440 (1980). Some courts had read this directive as requiring independent inquiry focusing on the precise nature of the claim asserted under § 1983, see, e.g., Ammlung v. Chester, 494 F.2d 811, 814 (3d Cir.1974) (applying Pennsylvania’s one year statute of limitations for wrongful death and false arrest and two year statute for trespass), while others had held that all § 1983 cases should be governed by state residual or general statutes of limitations, that is, statutes of limitations applicable to all statutory causes of action that do not contain their own statute of limitations. See, e.g., Beard v. Robinson, 563 F.2d 331, 338 (7th Cir.1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978) (holding that state’s general statute of limitations applied to all statutory suits brought under any of the Civil Rights Acts). See Anno., 45 ALR Fed. 548 (1979).

In Garcia, the Court noted that “the legislative purpose to create an effective remedy for the enforcement of federal civil rights is obstructed by uncertainty in the applicable statute of limitations,” 105 S.Ct. at 1947, and held that a “simple, broad characterization of all § 1983 claims best fits the statute’s remedial purpose.” Id. at 1945. The Court concluded that for the purpose of determining the applicable state statute of limitations, all § 1983 actions should be characterized as actions to recover for injuries to the rights of a person.

The Constitution's command is that all “persons” shall be accorded the full privileges of citizenship; no person shall be deprived of life, liberty, or property without due process of law or be denied the equal protection of the laws. A viola tion of that command is an injury to the individual rights of the person.

Garcia, 105 S.Ct. at 1948. (Emphasis added to last sentence.) The Court added that, “Had the 42d Congress expressly focused on the issue decided today, we believe it would have characterized § 1983 as conferring a general remedy for injuries to personal rights.” Id.

New Mexico, the state in which Garcia was brought, has a three year statute of limitations for actions “for an injury to the person or reputation of any person.” Garcia, 105 S.Ct. at 1941. The Court held this statute applicable to § 1983 actions brought in New Mexico. Id. at 1949.

In Wisconsin, the choice of the most analogous statute of limitations is complicated by the fact that Wisconsin has two statutes applicable to actions based on personal injury. Wis.Stat. § 893.53 (1983-84) provides a six year period for the bringing of suits for injuries to “character or rights”:

An action to recover damages for an injury to the character or rights of another, not arising on contract, shall be commenced within 6 years after the cause of action accrues, except where a different period is expressly prescribed, or be barred.

Wis.Stat. § 893.54(1) provides a three year statute of limitations for “injuries to the person.”

The following actions shall be commenced within 3 years or be barred:
(1) an action to recover damages for injuries to the person.

When it considered Garcia, the Court of Appeals for the Tenth Circuit based its decision to apply the New Mexico statute of limitations by ascertaining first that every claim enforceable under § 1983 is “an action for injury to personal rights.” Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir.1984), aff'd, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). This reasoning is in accord with a plain reading of § 1983, which is captioned, “Civil action for deprivation of rights,” and which creates liability for the “deprivation of any rights, privileges, or immunities ...” of any citizen of the United States or person within the jurisdiction of the United States. Although there is language in the Supreme Court’s opinion referring to “personal injuries,” see, e.g., Garcia, 105 S.Ct. at 1947, 1948, 1949, a fair reading of the decision suggests that where there is a choice between a statute governing bodily injury actions and one governing actions involving injuries to personal rights, the latter should prevail. The Wisconsin statute governing actions to recover damages for an injury to “character or rights” is more closely analogous to the spirit of § 1983 than is the statute governing personal injury actions, and under Garcia, it is the appropriate statute of limitations to apply in § 1983 actions.

Additionally, policy and legislative history considerations dictate application of § 893.53. Section 1983 is a remedial statute, the “central objective” of which “is to ensure that individuals whose federal Constitutional or statutory rights are abridged may recover damages or secure injunctive relief.” Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 2932, 82 L.Ed.2d 36 (1984). Representative Shellabarger, the sponsor of the 1871 Act, declared,

This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficiently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.

Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871), quoted in Briscoe v. LaHue, 460 U.S. 325, 348-49, 103 S.Ct. 1108, 1122-23, 75 L.Ed.2d 96 (1983) (Marshall, J., dissenting).

Because remedial statutes are to be broadly construed, and because the legislative intent behind § 1983 was to give the greatest latitude when construing remedial provisions, it is consistent with the policies of § 1983 to select the statute of limitations that has the longer limitation period.

I note that, in a recent decision, the Wisconsin court of appeals held that § 1983 actions brought in Wisconsin courts are governed by Wis.Stat. § 893.54, the three year statute of limitations. Hanson v. Madison Service Corp., 125 Wis.2d 138, 370 N.W.2d 586 (Ct.App.1985). Although this decision by a Wisconsin court on a question relating to the application of Wisconsin laws deserves deference, I do not find it persuasive. The Wisconsin court seems to have read the Supreme Court’s holding in Garcia as simply directing adoption of Wisconsin’s three year statute of limitations applicable to personal injuries, without discussing the apparent overlap in coverage between Wis.Stat. § 893.54 and § 893.53 and without attempting to determine which of the two statutes was more closely analogous to the spirit of § 1983.

Even if I were to decide that the three year period of § 893.54 is the appropriate statute of limitations in § 1983 actions, plaintiff would not be barred from proceeding with her § 1983 claims in this case. I do not read Garcia as having retroactive application to cases in which the new rule would shorten the limitations period previously established. See Jackson v. City of Bloomfield, 731 F.2d 652, 654-55 (10th Cir.1984) (holding that the new rule adopted by the Court of Appeals for the Tenth Circuit in Garcia would not be applied retroactively because the decision overruled clear past precedent on which the parties may have relied, because prospective application would not retard the operation of the new rule, and because retroactive application would impose substantial inequity in the case before the court), cited in Wilson v. Garcia, 105 S.Ct. at 1942, n. 10. Before the Supreme Court decided Garcia, the statute of limitations applied to § 1983 claims in Wisconsin was the six year period prescribed in Wis.Stat. § 893.93(1)(a), which governs “an action upon a liability created by statute where a different limitation is not prescribed by law.” See Reese v. Milwaukee County Sheriff Department, 505 F.Supp. 88, 89 (E.D.Wis.1980). See also Beard v. Robinson, 563 F.2d at 338. But see Hanson v. Madison Service Corp., 125 Wis.2d at 140-41, 370 N.W.2d 586 (holding that newly-recognized statute of limitations applies to all pending eases).

Plaintiff’s complaint was filed on August 27, 1984. Her § 1983 claims have been filed in a timely manner, that is, within six years of accrual of her causes of action. The applicable Wisconsin statute of limitations, Wis.Stat. § 893.53, does not prevent plaintiff from proceeding on her § 1983 claims.

b. Statute of Limitations in Actions Brought Pursuant to 42 U.S.C. §§ 1981 and 1985

_ As with § 1983, no federal statutes of limitations exist for §§ 1981 or 1985. The policies articulated in Garcia suggest that the Wisconsin statute of limitations governing the most analogous cause of action should apply to all claims arising under these two statutes. Just as with § 1983 cases, “[f]ew areas of the law stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitations” applicable to civil rights actions, Garcia, 105 S.Ct. at 1942, quoting Chardon v. Fumero Soto, 462 U.S. 650, 667, 103 S.Ct. 2611, 2621, 77 L.Ed.2d 74 (1983) (Rehnquist, J., dissenting). In Garcia, the Court placed emphasis on the “federal interests in uniformity, certainty, and the minimization of unnecessary litigation,” in adopting one state statute of limitations applicable .to all § 1983 actions. Garcia, 105 S.Ct. 1947. The same considerations apply with respect to § 1981 and § 1985 actions.

Section 1981 derives from the Civil Rights Act of April 9, 1866. Its purpose was to protect “citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude____” United States v. Cruikshank, 2 Otto 542, 555, 92 U.S. 542, 555, 23 L.Ed. 588 (1875). In light of the similarities of purpose betwen § 1981 and § 1983, it would seem to follow that the most analogous statute of limitations for § 1981 is the same statute applicable to § 1983 actions. Accord, Movement for Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1243 (7th Cir.1980); Beard v. Robinson, 563 F.2d 331.

Defendant makes the argument that the proper statute of limitations for § 1981 claims is the Wisconsin statute of limitations for employment discrimination under the Wisconsin Fair Employment Act. In support of his argument defendant cites decisions of the United States District Court for the Eastern District of Wisconsin, Tucker v. Harley Davidson Motor Co., 454 F.Supp. 738, 741 (E.D.Wis.1978); Minor v. Lakeview Hospital, 421 F.Supp. 485, 487 (E.D.Wis.1976). See also Movement for Opportunity, 622 F.2d 1235 (applying a two year tort statute of limitations, but noting that a newly-enacted state statute applicable to employment related actions would apply to future § 1981 actions.) However, these cases were decided before Garcia and before the Supreme Court held in Burnett v. Grattan that a statute of limitations for state administrative remedies for employment discrimination was inappropriate for § 1981 claims because of the many differences between administrative remedies and federal court cases. Burnett, 104 S.Ct. at 2930-31, 2933. Moreover, § 1981 actions are not limited to claims of employment discrimination. See, e.g., Tillman v. Wheaton-Haven Recrea tion Ass’n, 517 F.2d 1141 (4th Cir.1975) (claim against a swimming pool association that discriminated against blacks who applied for membership); Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961) (wrongful death to a prisoner in custody of police); Vietnamese Fishermen’s Ass’n v. Knights of Ku Klux Klan, 518 F.Supp. 993 (S.D.Tex.1981) (Ku Klux Klan interfering with Vietnamese fishermen’s private contracts).

Although many § 1981 claims could be analogized to actions arising as breaches of contracts, torts, or employment discrimination, the underlying and unifying premise of § 1981 dictates that the statute of limitations to be applied in Wisconsin is the statute of limitations that addresses an injury to civil rights, Wis.Stat. § 893.53.

For similar reasons, the same statute of limitations would be the most appropriate for actions brought pursuant to § 1985, which, like § 1983, was enacted as part of the Civil Rights Act of 1871. The purpose of § 1985 is

“the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens’ rights, shall be within the scope of the remedies of this section.”

Cong. Globe, 42d Cong., 1st Sess., App. 478 (1871) (remarks of Representative Shellabarger).

Neither party argues that the statute of limitations should vary depending on the particular civil rights statute under which plaintiff is claiming relief. Defendant has pointed out that “there is no apparent reason in this case to suggest that a different statute of limitations might apply depending on the statutory label plaintiff has attached to her claims,” and recommends that “a single state statute of limitations applies to actions under §§ 1981, 1983 or 1985.” Defendant’s Brief at 9. I agree that it is appropriate to apply the same statute of limitations to §§ 1981, 1893, and 1985, all of which have the same underlying purpose of providing a remedy for civil rights violations.

Therefore, I conclude that Wis.Stat. § 893.53, a six year statute of limitations, applies to plaintiff’s §§ 1981 and 1985 claims, all of which accrued within the six years prior to plaintiff’s filing of this lawsuit.

c. Statute of Limitations in Actions Brought Pursuant to 42 U.S. C. § 1986

Both plaintiff and defendant agree that 42 U.S.C. § 1986 is governed by its own statute of limitations requiring commencement of an action within one year of accrual of the cause of action. Thus, plaintiff’s claims of harassment during the years 1978-1980 brought pursuant to § 1986 are barred by that statute’s one year limitations period. Plaintiff’s § 1986 claim of denial of a promotional opportunity in 1983 was filed within one year of its accrual and is not barred by the one year limitation in § 1986.

2. Jurisdiction Over Pendent State Claims

Plaintiff has asserted pendent state claims based on defendant’s alleged violations of the Wisconsin Constitution. Defendant has moved to dismiss these claims for lack of jurisdiction. Defendant asserts that plaintiff has failed to comply with the provisions of Wisconsin’s notice of claim statute, Wis.Stat. § 893.82 (1983-84). This statute provides, in part,

(3) No civil action or civil proceeding may be brought against any state ... employe ... for or on account of any act growing out of or committed in the course of the discharge of the ... employe’s ... duties, unless within 120 days of the event causing the injury ... giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim____

Where the plaintiff has failed to comply with this notice of claim statute, the court lacks jurisdiction to hear the claim. Ibrahim v. Samore, 118 Wis.2d 720, 726, 348 N.W.2d 554 (1984). Under Wisconsin law, the notice of claim requirement “imposes a condition precedent to the right to maintain an action.” Id., quoting Nelson v. American Employers’ Ins. Co., 262 Wis. 271, 276, 55 N.W.2d 13 (1952). Plaintiff does not deny defendant’s assertion that she has failed to comply with § 893.82(3). Thus, this court lacks jurisdiction to hear plaintiff’s state law claims.

3. Failure to State a Claim

Defendant has moved to dismiss plaintiff’s claims arising under 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986 and set out in plaintiffs complaint in Claims Two through Eight, on the grounds that plaintiff has failed to state a claim upon which relief can be granted. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957), directs that the plaintiff’s pleadings are to be construed liberally, and are not to be dismissed unless it appears beyond doubt that there is no set of facts that plaintiff could prove to support her claim, but Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir.1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979), advises the lower courts that some particularized facts demonstrating a constitutional deprivation are necessary to state a cause of action.

a. Second Cause Of Action

In this portion of her complaint, plaintiff alleges that defendant’s refusal to promote her and his harassing actions toward her were in retaliation for her advocacy of equal protection for members of the Brown race in violation of 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986.

42 U.S.C. § 1981 affords a remedy for discrimination primarily “on the basis of race.” Johnson v. Railway Express Agency, 421 U.S. 454, 459, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975). The statute does not apply to employment discrimination based on religion, national origin, or sex. See Vasquez v. Werner Continental, Inc., 429 F.Supp. 513, 515 (N.D.Ill.1977), in which the district court held

The clear purpose of § 1981 is to provide for equality between persons of different races. In order for a plaintiff to predicate an action on this section, he must have been deprived of a right, which, under similar circumstances, would have been accorded to a person of a different race. The applicability of this section is clearly limited to racial discrimination. It does not pertain to discrimnation on the grounds of religion, national origin or sex.

Vasquez v. Werner, 429 F.Supp. at 515, quoting Abshire v. Chicago and Eastern Illinois Railroad Co., 352 F.Supp. 601 (N.D.Ill.1972). See also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Schetter v. Heim, 300 F.Supp. 1070, 1073 (E.D.Wis.1969).

In her second cause of action, plaintiff does not allege that she was discriminated against because she is a member of the Brown race, but that she was retaliated against because of her “advocacy of equal protection for members of the Brown race.” (Amended Complaint ¶ 37.) However liberally this claim is interpreted, it does not imply that defendant discriminated against plaintiff because she is a member of the Brown race. Any person, regardless of race, may be an advocate for equal protection; retaliation for advocacy of equal protection does not give rise to a cause of action under § 1981, which ensures that persons of all races have the same right to “make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens____” I agree with defendant that plaintiff has failed to state a claim under § 1981.

As to her § 1983 claim, plaintiff must allege that defendant acted under color of state or local law, Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732, 56 L.Ed.2d 185 (1978), and that plaintiff was deprived of rights, privileges, or immunities secured by the Constitution and laws of the United States. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Greco v. Guss, 775 F.2d 161, 164 (7th Cir.1985). Plaintiff has alleged that at all times relevant to this complaint defendant acted under color of state law. In her second cause of action she alleges that defendant retaliated against her because of her advocacy of equal protection for members of the Brown race. Although plaintiffs allegations are only minimally supported with factual allegations, she has stated a claim upon which relief can be granted.

With respect to her § 1985(3) claim, plaintiff must allege a conspiracy to deprive any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws, and that defendant did or caused acts to be done in furtherance of the conspiracy, where injury resulted to a person or property or deprived a person of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

In plaintiffs second cause of action, in which she alleges retaliation for her advocacy of equal protection for members of the Brown race, plaintiff fails even to mention conspiracy. Thus, she fails to state a claim under § 1985(3) in this cause of action.

Section 1986 is derivative of § 1985; it merely provides a remedy for misprision of a violation of § 1985. Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 203 (7th Cir.1985); Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir.1980). Since plaintiff has failed to state a § 1985 claim in this cause of action, she has no claim under § 1986.

I conclude that in her second cause of action, plaintiff has stated a claim under 42 U.S.C. § 1983, and has failed to state a claim under 42 U.S.C. §§ 1981, 1985(3), or 1986.

b. Third Cause Of Action

For her third cause of action, plaintiff alleges that defendant’s refusal to promote her and his harassing actions were in retaliation for her advocacy of equal protection for persons of the female sex, that the actions constituted intentional and purposeful sex discrimination, and that the failure to promote was retaliation for her exercise of her rights of free speech and association and her refusal to submit to defendant’s prior sexual harassment of her.

Plaintiff does not specify the statutes under which she is suing in this cause of action. She has no claim pursuant to § 1981 because she has alleged no discrimination in this count based on race, and she has no claim under §§ 1985 and 1986 because she has not alleged facts that would support a claim of conspiracy. Vague allegations that defendant acted in concert with unnamed and unknown coconspirators fail to state a claim. However, plaintiffs allegations of harassment and retaliation based on her sex, her advocacy of equal treatment of females, and her rights of speech and association state a claim under § 1983.

Defendant argues that plaintiffs allegations of sexual harassment fail to state a claim under § 1983 because Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., provides an exclusive remedy for claims of sex discrimination. The Court of Appeals for the Seventh Circuit has rejected this argument, holding that the Fourteenth Amendment provides an independent basis to bring a discrimination claim. Trigg v. Fort Wayne Community Schools, 766 F.2d 299, 302 (7th Cir.1985). See also Meyett v. Coleman, 613 F.Supp. 39 (W.D.Wis.1985); Storey v. Board of Regents, 600 F.Supp. 838, 840 (W.D.Wis.1985).

c. Fourth Cause Of Action

In this part of her complaint, plaintiff alleges that defendant’s harassing actions toward her were taken in retaliation for her advocacy of equal protection for members of the handicapped class, and that his actions violate 42 U.S.C. §§ 1983, 1985(3), and “1986 as incorporated from Title VII of the Civil Rights Act of 1964.”

Plaintiff has no claim under §§ 1985(3) or 1986. She does not explain the meaning of her reference to “1986 as incorporated from Title VII of the Civil Rights Act” (and she has not alleged any claims arising specifically under Title VII), but since § 1986 requires a viable claim of conspiracy under 42 U.S.C. § 1985, and she has made none, I conclude she has no cause of action under that section, however it is interpreted.

Defendant argues that plaintiff also fails to state a claim under § 1983. It is true that plaintiff has failed to allege that she has engaged in advocacy for the rights of handicapped so that she would be in a position to allege retaliation on that basis. However, it is possible to read her complaint as alleging that she was deprived of equal protection because of her own handicapped status. ' Such allegations would state a claim under § 1983. Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir.1977), further proceedings, 626 F.2d 1115 (3d Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1375, 67 L.Ed.2d 352 (1981); Nodleman v. Aero Mexico, 528 F.Supp. 475, 492 (C.D.Cal.1981).

d. Fifth Cause Of Action

For her fifth cause of action, plaintiff alleges that defendant subjected her to sexual harassment from 1978 to 1980 in violation of her right to equal protection under the Fourteenth Amendment. These allegations are sufficient to state a claim under 42 U.S.C. § 1983.

e. Sixth Cause Of Action

Plaintiff alleges that defendant’s actions in harassing and humiliating her were taken in concert with other unknown and unnamed coeonspirators in violation of 42 U.S.C. § 1985(3). Asserting a conspiracy of unknown persons does not state a claim for relief unless it is supported by allegations of material facts. Jafree v. Barber, 689 F.2d 640, 644 (7th Cir.1982). Plaintiff asserts no material facts to support her claim of a conspiracy under § 1985. It is true that “[i]n many cases of conspiracy essential information can only be produced through discovery, and the parties should not be thrown out of court before being given an opportunity through that process to ascertain whether the linkage they think may exist actually does.” Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir.1980), quoting Lessman v. McCormick, 591 F.2d 605, 611 (10th Cir.1979). However, in this ease, discovery has been proceeding long enough for plaintiff to have learned of any facts that would support her allegations of conspiracy. In fact, plaintiff has filed an amended complaint. Therefore, I conclude that plaintiff has failed to state a claim under § 1985(3) upon which relief may be granted.

f Seventh Cause Of Action

Plaintiff alleges in this cause of action that defendant’s actions violated 42 U.S.C. § 1986, “in that there was neglect to prevent conspiracy,” on the part of the management of the Wisconsin Department of Industry, Labor, and Human Relations. As noted earlier, a claim of this kind may proceed only if plaintiff has alleged a claim of conspiracy actionable under 42 U.S.C. § 1985(3). Since plaintiff has not made out such a claim, her § 1986 claim fails.

g. Eighth Cause Of Action

For this cause of action, plaintiff realleges all her previous claims against defendant and alleges that the actions were taken in violation of the consent decree entered into by the Department of Industry, Labor, and Human Relations (presumably, the consent decree settling the claims of the seven employees discharged from the Bureau of Migrant Services). Defendant argues that because neither plaintiff nor defendant was a party to the consent decree plaintiff has no standing to assert a claim based on that decree and defendant has no obligations under the decree. It is not necessary to determine the merits of either of these arguments, because challenges relating to a consent decree are not properly brought in a separate case. Proceedings to enforce a civil decree are tried as a part of the main cause.

Though such proceedings are “nominally those of contempt,” the real purpose of the court order is purely remedial — to coerce obedience to a decree passed in complainant’s favor, or to compensate complainant for loss caused by respondent’s disobedience of such a decree.

Parker v. United States, 153 F.2d 66, 70 (1st Cir.1946) (citation omitted). If plaintiff wishes to pursue her claim of violation of a consent decree, she must be do so as part of the case in which that decree was entered, assuming of course that she can show she has standing under the decree.

In any event, the point is a moot one, because plaintiff’s allegations that defendant’s acts violated the consent decree do not add anything to her claims that those same acts violated her rights under the United States Constitution.

4. Plaintiffs Claims for Relief

Defendant has moved for dismissal of plaintiff’s claims for relief for promotion and back pay on the ground that only the State of Wisconsin can provide such relief, not defendant. The motion will be denied.

If defendant acted illegally in denying plaintiff a promotion, he may be held liable for the wage differential she requests. With respect to plaintiff’s claim for relief in the form of the actual promotion, I cannot determine whether defendant is or is not able to provide such relief. This relief can be obtained only from the appointing authority of her agency. See Wis.Stat. §§ 230.03(4) and 230.06(l)(b). Whether defendant has such authority is a matter that will have to be determined at a later stage of these proceedings.

5. Jury Trial

Defendant has withdrawn his request for a jury trial and has moved to strike plaintiff’s jury demand on the ground that plaintiff’s demand is untimely. Rule 38(d), Federal Rules of Civil Procedure, provides that a demand for trial by jury may not be withdrawn without the consent of the parties. Since plaintiff has not consented to defendant’s withdrawal of his request for jury trial, this case will be tried to a jury. See Cram v. Sun Insurance Office, Ltd., 375 F.2d 670, 675 (4th Cir.1967).

6. ' References to “Lawsuits”

Defendant has moved to strike from plaintiffs amended complaint the reference to “lawsuits” in paragraph 55. This motion is moot because paragraph 55 is part of plaintiffs seventh cause of action, which will be dismissed for plaintiffs failure to state a claim upon which relief can be granted.

ORDER

Accordingly, IT IS ORDERED that

1) defendant’s motion to dismiss plaintiff's claims as barred by the statute of limitations is DENIED except with respect to the claims of harassment asserted under 42 U.S.C. § 1986 in plaintiff’s second, third, fourth, and seventh causes of action;

2) defendant’s motion to dismiss plaintiff’s pendent state claims is GRANTED;

3) defendant’s motion to dismiss plaintiff’s claims under 42 U.S.C. § 1981 in her second and third causes of action is GRANTED;

4) defendant’s motion to dismiss plaintiff’s claims under 42 U.S.C. § 1983 in her second, third, fourth, and fifth causes of action is DENIED, except with respect to plaintiff’s claim. that defendant discriminated against her because of her advocacy of equal protection for handicapped persons;

5) defendant’s motion to dismiss plaintiff’s claims under 42 U.S.C. § 1985(3) in her second, third, fourth, and sixth causes of action is GRANTED;

6) defendant’s motion to dismiss plaintiff’s claims of defendant’s failure to promote her brought under 42 U.S.C. § 1986 in her second, third, fourth, and seventh causes of action is GRANTED;

7) defendant’s motion to dismiss plaintiff’s eighth cause of action is GRANTED;

8) defendant’s motion to withdraw his request for a jury trial is DENIED;

9) defendant’s motion to dismiss plaintiff’s claim for injunctive relief in the form of a promotion is DENIED; and

10) defendant’s motion to dismiss plaintiff’s claim for back pay is DENIED.

      . On the same day the Court of Appeals for the Tenth Circuit filed its opinion in Garcia v. Wilson, 731 F.2d 640 (1984), it also issued opinions adopting statutes of limitations for § 1983 actions brought in Kansas, Colorado, and Utah. In Hamilton v. City of Overland Park, 730 F.2d 613 (10th Cir.1984), cert. den. — U.S.-, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985), the court of appeals held that the appropriate statute of limitations in Kansas was the two year statute governing actions "for injuries to the rights of another.” See Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 1941, n. 10, 85 L.Ed.2d 254 (1985).

      . Although federal courts apply state statutes of limitations in § 1983 actions, federal law governs the determination of the accrual of a cause of action. See Kurzawa v. Mueller, 545 F.Supp. 1254, 1259 (E.D.Mich.1982). Under federal law, a § 1983 claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the actions. Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir.1982); Lavallee v. Listi, 611 F.2d 1129, 1130 (5th Cir.1980); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975). Plaintiff alleges that defendant Cadena’s acts of harassment took place after his appointment as director of the Bureau of Migrant Services in the summer of 1978. Only those actions that occurred before August 27, 1978 would be barred by the statute of limitations.

      . 42 U.S.C. § 1981 provides that:
      All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, license, and exactions of every kind, and to no other.
      42 U.S.C. § 1985(3) provides that:
      (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice-President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

      . Despite the fact that Wis.Stat. § 893.53 provides a limitation to an action to recover for an injury to rights "not arising on contract,” and § 1981 specifically embodies a remedy regarding contracts, I believe § 893.53 best addresses the underlying problem that § 1981 is intended to alleviate. Because like § 1983, § 1981 “can have no precise counterpart in state law ... it is 'the purest coincidence,’ ... when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect." Garcia, 105 S.Ct. at 1945 (citations omitted). Section 893.53 may be an imperfect analogy, but it is most closely analogous to the intent of § 1981.
      Moreover, as the court of appeals pointed out in Movement for Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1243 (7th Cir.1980), “the ‘essential nature of the [civil rights] claim is the interference with ... not the breach of a contractual obligation,' ” quoting Ingram v. Steven Robert Corp., 419 F.Supp. 461 (S.D.Ala.1976), aff'd 547 F.2d 1260 (5th Cir.1977) (applying statute for injuries to the person).

      . My summary of plaintiffs allegations in each count is based on my best guess of what plaintiff has alleged or attempted to allege. Plaintiff s complaint would have been easier to parse if she had followed the dictates of Rule 10(b), Federal Rules of Civil Procedure:
      All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
      Her failure to present her claims in a clear and concise fashion made it very difficult to understand and to evaluate the merits of those claims.


author:
DIANA E. MURPHY, District Judge.
      Background.

text:
    Robert J. CARMAN, Plaintiff, v. CITY OF EDEN PRAIRIE, Eden Prairie Director of Public Safety, Jack Hacking, James L. Matson, Fairview Community Hospitals, a Minnesota nonprofit corporation, Fairview Receiving Center, Defendants.
    Civ. No. 4-85-105.
    United States District Court, D. Minnesota, Fourth Division.
    Nov. 27, 1985.

      Gordon G. Mohr, Bloomington, Minn., for plaintiff.
    David D. Alsop, Gislason, Dosland, Hunter & Malecki, Minnetonka, Minn., for defendants.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiff Robert J. Carman brought this action against defendants City of Eden Prairie, Eden Prairie Director of Public Safety Jack Hacking, James L. Matson, and Fairview Community Hospitals, a Minnesota nonprofit corporation d/b/a Fair-view Receiving Center (Fairview). Plaintiff alleges that defendants violated his right to due process and equal protection. He also alleges negligence and fjalse imprisonment, and seeks a declaratory judgment that Minn.Stat. §§ 253A.04 and 253B.05 are unconstitutional in part, as ^ well as injunctive relief and compensatory damages. Jurisdiction is alleged under j 42 U.S.C. §§ 1983, 1988, the Fifth and Fourteenth Amendments to the Constitution, and pendent jurisdiction. The matter is now before the court upon defendant Fairview’s motion to dismiss or for summary judgment.

Background.

The facts pertinent to this motion are essentially undisputed and are as follows. On May 31, 1984, plaintiff was arrested in the City of Eden Prairie and charged with driving while under the influence of alcohol in violation of Minn.Stat. § 169.121. After his arrest by Eden Prairie police officer James L. Matson, plaintiff was t^ken to the Eden Prairie Police Station. Upon his arrival at the station, plaintiff contacted his attorney who offered to come to the station to take responsibility for plaintiff, but his offer was refused by the Eden Prairie Police. Upon the advice of his attorney, plaintiff refused further testing for alcohol.

The police officers then transported plaintiff to the Fairview Receiving Center, a state licensed detoxification center operated by defendant Fairview. Upon arrival, the police officer executed an Application for Emergency Care or Treatment, pursuant to Minn.Stat. § 253B.05, subd. 2. The application stated that the officer had taken the plaintiff into custody believing him to be an intoxicated person whose functioning was substantially impaired because of alcohol. The application further stated that plaintiff was driving while intoxicated and had a strong alcohol odor and slurred speech. Ex. A. to aff. of Gail Kvasse. It described plaintiff as “obviously drunk.” Id.

Fairview states that it admitted plaintiff for detoxification and assessment pursuant to Minn.Stat. § 253B.05, subd. 2, and its policies and procedures. It notes that he voluntarily signed a Request for Detoxification and Related Care and Treatment. Additionally, Fairview asserts that plaintiff was given a preliminary examination and evaluation by its staff which indicated that he was intoxicated. See ex. E to aff. of Gail Kvasse. Plaintiff asserts, by contrast, that no independent examination was conducted by Fairview to determine if emergency care and treatment were required. He also asserts that he was capable of caring for himself and did not need emergency care. Plaintiff was then assigned to a room; he had the remainder of the evening free.

The next day, after breakfast and morning rounds, a more comprehensive health and social history was taken, and plaintiff attended a film regarding chemical dependency. After lunch, plaintiff received individual counseling. He also filled out a “Mortimer-Filkins Questionnaire and Interview,” a commonly used alcohol abuse/dependency assessment tool. A Fairview counselor diagnosed plaintiff as borderline dependent and recommended to him that he seek out-patient treatment following his discharge, which was at 1:30 p.m., Friday, June 1, 1984.

Plaintiff claims that he was transported to and held at Fairview against his will in violation of his constitutional rights. He notes that despite being completely sober by the next morning, he was prevented from going to work. Plaintiff filed the instant action on January 18, 1985, and Fairview subsequently filed this motion.

Discussion

Because the parties have submitted, and the court has referred to, matters outside the pleadings, this motion will be treated as one for summary judgment. See Fed.R.Civ.P. 12(b)(6); Inland Container Corp. v. Continental Ins. Co., 726 F.2d 400, 401 (8th Cir.1984). In passing upon a motion for summary judgment, the court is required to view the facts in a light most favorable to the nonmoving party, and the movant has the burden of establishing that no genuine issue of material fact remains and that the case may be decided as a matter of law. Butter v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Ralph’s Distributing Co. v. AMF, Inc., 667 F.2d 670 (8th Cir.1981). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts disclosed in pleadings and affidavits. Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076 (8th Cir.1980).

Fairview contends that its reliance on a state statutory scheme entitles it to dismissal as it is protected by the qualified immunity of Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Plaintiff claims, by contrast, that Fairview’s actions not only violated the relevant Minnesota statutes, but also violated clearly established constitutional rights.

Qualified immunity is an affirmative defense which shields public officials performing discretionary functions from civil damages if their conduct does “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity may be extended to private parties under certain circumstances. Butter v. Buechler, 706 F.2d 844 (8th Cir.1983).

Butter concerned a claim that the private parties who had invoked South Dakota’s unconstitutional garnishment statute against the plaintiff had violated his due process rights. The Court of Appeals, in determining that such private individuals may assert a qualified immunity defense, stated:

There is a strong public interest in permitting private individuals to rely on presumptively valid state laws and in shielding those citizens from monetary damages where they resort to a legal process which they neither know, nor reasonably should know, is invalid. Moreover, it would be anomalous to hold that private individuals are state actors within the meaning of § 1983 because they invoked a state garnishment statute and the aid of state officers; but deny those private individuals the qualified immunity possessed by the state officials with whom they dealt because they technically are not state employees. 706 F.2d at 851.

The same public interest policies discussed in Butter persuade the court that Fairview should be entitled to raise the qualified immunity defense in this situation.

Plaintiff argues nonetheless that under Owen v. City of Independence, Mo., 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), Fairview is not entitled to a qualified immunity defense because it is “a policy making individual situated in the same position as a municipality.” Plaintiffs Memorandum at p. 13. One of the central rationales articulated by the Owen court, however, is that holding municipalities strictly liable for § 1983 damages would equitably spread the loss among the public for constitutional violations caused by executing public policies. Owen, 445 U.S. at 657, 100 S.Ct. at 1418. This rationale is inapplicable when a private entity like Fair-view is involved. Moreover, to deny a private party like Fairview good faith immunity would be unjust when it is required by state statute to exercise discretion. The failure to provide immunity might also deter such organizations from providing necessary services to the public. See Owen v. City of Independence, Mo., 445 U.S. 622, 654, 100 S.Ct. 1398, 1417, 63 L.Ed.2d 673 (1980). The court finds, therefore, that Fairview may assert a qualified immunity defense.

Plaintiff contends that Fairview’s interpretation of Minn.Stat. § 253B.05 and its policies are contrary to clearly established constitutional rights, as well as to the language of the statute itself. Minn.Stat. § 253B.05 provides in pertinent part:

(a) A peace or health officer may take a person into custody and transport him to a licensed physician or treatment facility if the officer has reason to believe that the person is mentally ill or mentally retarded and in imminent danger of injuring himself or others if not immediately restrained. A peace or health officer ... may take the person who is believed to be chemically dependent or is intoxicated in public into custody and transport him to a treatment facility. If the person is intoxicated in public or is believed to be chemically dependent and is not endangering himself or any person and property, the peace or health pfficer may transport the person to his home. Application for admission of the person to a treatment facility shall be made by the peace or health officer____
(b) A person may be admitted to a treatment facility for emergency care and treatment under this subdivision with the consent of the head of the facility under the following circumstances: ... or, a written statement is made by 'the institution program director or his designee on duty at the facility that after preliminary examination the person has symptoms of chemical dependency and appears to be in imminent danger of harming himself or others or is intoxicated in public.

Subdivision 3 of § 253B.05 provides that any person held pursuant to the section may only be held up to 72 hours unless and until a petition for commitment is brought to the county probate court.! Finally, § 253B.06, subd. 3, provides that the treatment facility which accepts persons under § 253B.05 must arrange to have every patient examined by a physician within 48 hours of their admission. It also provides that if such an examination is not performed within the requisite time period the patient must be discharged.

The court notes that the instant claim is perhaps the first to be brought attacking the constitutionality of the obligatory hold provisions of Minn.Stat § 253B.05. No Minnesota decision has been found which rules on the statute’s facial constitutional validity. Moreover, at the hearing, counsel for plaintiff conceded that the statute was constitutional on its face. Fairview had little reason, therefore, to suspect that acting pursuant to the statute would violate plaintiff’s rights.

Plaintiff contends, however, that Fairview’s application of the statute violated the constitutional mandate that a person involuntarily confined must pose a danger either to the public or himself under Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), and O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). These cases are distinguishable, however, as both dealt with a situation where a patient was judicially committed for an indefinite length of time for mental health reasons. No authority which plaintiff cites relates specifically to the situation where a person is held in a treatment center for public intoxication pursuant to a statute which limits the maximum hold to 72 hours or to 48 hours if an examination by a physician is not performed. In addition, Minn.Stat. § 253B.05, subd. 2 is ambiguous as to whether a finding of dangerousness is required. Thus, Fairview’s interpretation that Minn.Stat. § 253B.05 requires only that a person be “intoxicated in public” to be validly admitted to a treatment facility under the statute does not, as a matter of law, violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982).

Nor was Fairview outside the scope of the statute in any other way. Plaintiff argues that Fairview violated Minn.Stat. § 253B.05, subd. 2(b) by failing to conduct an independent examination. The record shows, however, that a designee of the program director made a preliminary examination and concluded that plaintiff was intoxicated in public. See ex. E to aff. of Gail Kvasse. At the completion of the assessment process, 18 hours after admission, Fairview determined that there was no medically necessary reason to hold plaintiff and he was released, well in advance of the 48 hour assessment period provided by § 253B.05, subd. 3. Fairview’s actions were therefore within the scope of the statute.

In sum, Fairview reasonably applied a presumptively valid state statute. Fair-view is thus entitled to qualified immunity because its conduct did not violate any of plaintiff’s clearly established statutory or constitutional rights of which a reasonable person would have known.

ORDER

Accordingly, based on the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that the motion of Fairview Community Hospitals d/b/a Fairview Receiving Center for summary judgment is granted, and plaintiff’s claims against Fairview Community Hospitals are dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.