Saldivar v. Cadena

• Decision Date: 27 November 1985
• Docket Number: No. 84-C-685.,84-C-685.
• Citation: 622 F. Supp. 949
• Parties: Rose SALDIVAR, Plaintiff, v. Mateo CADENA, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

622 F. Supp. 949

Rose SALDIVAR, Plaintiff, v. Mateo CADENA, Defendant.

No. 84-C-685.

United States District Court, W.D. Wisconsin.

November 27, 1985.

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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 plaintiff's immediate supervisor. Defendant subjected plaintiff to continual harassment in the form of abusive comments about plaintiff's 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 plaintiff's 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. Plaintiff's 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 plaintiff's 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 plaintiff's 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. Plaintiff's 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 violation 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...