A. A person claiming to be aggrieved by an unlawful discriminatory practice and a member of the commission who has reason to believe that discrimination has occurred may file with the human rights division of the labor department a written complaint that shall state the name and address of the person alleged to have engaged in the discriminatory practice, all information relating to the discriminatory practice and any other information that may be required by the commission. All complaints shall be filed with the division within three hundred days after the alleged act was committed.
B. The director shall advise the respondent that a complaint has been filed against the respondent and shall furnish the respondent with a copy of the complaint. The director shall promptly investigate the alleged act. If the director determines that the complaint lacks probable cause, the director shall dismiss the complaint and notify the complainant and respondent of the dismissal. The complaint shall be dismissed subject to appeal as in the case of other orders of the commission.
C. If the director determines that probable cause exists for the complaint, the director shall attempt to achieve a satisfactory adjustment of the complaint through persuasion and conciliation. The director and staff shall neither disclose what has transpired during the attempted conciliation nor divulge information obtained during any hearing before the commission or a commissioner prior to final action relating to the complaint. An officer or employee of the labor department who makes public in any manner information in violation of this subsection is guilty of a misdemeanor and upon conviction shall be fined not more than one thousand dollars ($1,000) or imprisoned not more than one year.
D. A person who has filed a complaint with the human rights division may request and shall receive an order of nondetermination from the director without delay after the division’s receipt of the complaint and in jointly filed cases, after the federal complaint has been closed. The order of nondetermination may be appealed pursuant to the provisions of Section 28-1-13 NMSA 1978.
E. In the case of a complaint filed by or on behalf of a person who has an urgent medical condition and has notified the director in writing of the test results, the director shall make the determination whether probable cause exists for the complaint and shall attempt any conciliation efforts within ninety days of the filing of the written complaint or notification, whichever occurs last.
F. If conciliation fails or if, in the opinion of the director, informal conference cannot result in conciliation and the complainant has not requested a waiver of right to hearing pursuant to the provisions of Subsection J of this section, the commission shall issue a written complaint in its own name against the respondent, except that in the case of a complaint filed by or on behalf of a person who has an urgent medical condition, who has notified the director in writing of the test results and who so elects, the director shall issue an order of nondetermination, which may be appealed pursuant to the provisions of Section 28-1-13 NMSA 1978. The complaint shall set forth the alleged discriminatory practice, the secretary’s regulation or the section of the Human Rights Act [28-1-1 NMSA 1978] alleged to have been violated and the relief requested. The complaint shall require the respondent to answer the allegations of the complaint at a hearing before the commission or hearing officer and shall specify the date, time and place of the hearing. The hearing date shall not be more than fifteen or less than ten days after service of the complaint. The complaint shall be served on the respondent personally or by registered mail, return receipt requested. The hearing shall be held in the county where the respondent is doing business or the alleged discriminatory practice occurred.
G. Within one year of the filing of a complaint by a person aggrieved, the commission or its director shall:
(1) dismiss the complaint for lack of probable cause;
(2) achieve satisfactory adjustment of the complaint as evidenced by order of the commission; or
(3) file a formal complaint on behalf of the commission.
H. Upon the commission’s petition, the district court of the county where the respondent is doing business or the alleged discriminatory practice occurred may grant injunctive relief pending hearing by the commission or pending judicial review of an order of the commission so as to preserve the status quo or to ensure that the commission’s order as issued will be effective. The commission shall not be required to post a bond.
I. For purposes of this section, “urgent medical condition” means any medical condition as defined by an appropriate medical authority through documentation or by direct witness of a clearly visible disablement that poses a serious threat to the life of the person with the medical condition.
J. The complainant may seek a trial de novo in the district court in lieu of a hearing before the commission, provided the complainant requests from the director, in writing, a waiver of complainant’s right to hearing within sixty days of service of written notice of a probable cause determination by the director. The director shall approve the waiver request and shall serve notice of the waiver upon the complainant and respondent. The complainant may request a trial de novo pursuant to Section 28-1-13 NMSA 1978 within ninety days from the date of service of the waiver. Issuance of the notice shall be deemed a final order of the commission for the purpose of appeal pursuant to Section 28-1-13 NMSA 1978.
HISTORY:
1953 4-33-9, enacted by Laws 1969, ch. 196, § 9; 1981, ch. 220, § 1; 1983, ch. 241, § 3; 1987, ch. 342, § 21; 1991, ch. 45, § 1; 1993, ch. 268, § 2; 1993, ch. 305, § 1; 1995, ch. 125, § 2; 2005, ch. 311, § 1.
Editor’s notes.
Laws 2005, ch. 208, § 27, repealed 28-1-15 NMSA 1978 which would have repealed this section on July 1, 2006.
Amendment Notes.
The 2005 amendment, effective June 17, 2005, in the last sentence of Subsection A, substituted “three hundred days” for “one hundred eighty days”; in the first sentence of Subsection D, substituted “without delay” for “one hundred eighty days” and added “and in jointly filed cases after the federal complaint has been closed”; and in Subsection J, substituted “ninety days” for “thirty days” in the last sentence.
Notes to Decisions
Analysis
Exhaustion of administrative remedies.
Generally.
By specifically providing for a “trial de novo in the district court” in New Mexico Human Rights Act (NMHRA) actions, the Legislature created a statutory exception to the application of collateral estoppel in such cases; in actions to secure compliance with the NMHRA, the jurisdiction of the district court is exclusive, and the statutory right to bring a NMHRA claim “de novo” encompasses more than merely reviewing the administrative determinations made by the employee agency. Contreras v. Miller Bonded, Inc., 2014-NMCA-011, 316 P.3d 202, 2013 N.M. App. LEXIS 97 (N.M. Ct. App. 2013), cert. quashed, 334 P.3d 425, 2014 N.M. LEXIS 323 (N.M. 2014).
Although 28-1-10A NMSA 1978 uses the phrase “may file” instead of “shall file,” the comprehensive nature of the Human Rights Act, [28-1-1 NMSA 1978 et seq.], supports the conclusion that the legislature intended that the grievance procedure is mandatory when unlawful discriminatory practices are alleged; therefore, the former employee’s discrimination suit against her employer for allegedly terminating her employment due to her pregnancy was properly dismissed because she failed to file a grievance with the Human Rights Commission as a prerequisite to her suit. Jaramillo v. J.C. Penney Co., 1985-NMCA-002, 102 N.M. 272, 694 P.2d 528, 1985 N.M. App. LEXIS 523 (N.M. Ct. App. 1985).
Appeal.
Employee properly appealed to a district court for a trial de novo pursuant to 28-1-13A NMSA 1978 after she requested and received an order of non-determination from the New Mexico Human Rights Division under 28-1-10D NMSA 1978. Sabella v. Manor Care, 1996-NMSC-014, 121 N.M. 596, 915 P.2d 901, 1996 N.M. LEXIS 120 (N.M. 1996), limited, Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65, 1999 N.M. LEXIS 154 (N.M. 1999).
Damages.
Favorable judgment on an employee’s retaliation claim against her employer under the human rights act, 28-1-10 NMSA 1978 et seq., alleging that her employer retaliated for her filing a claim that her fellow employees discriminated against her on the basis of national origin did not bar the her from suing those employees for retaliation under 42 U.S.C.S. §§ 1981 and 1983 but did preclude her from seeking more in compensatory damages than was awarded in the state action; however, she was not barred from seeking punitive damages in the federal action. Gonzales v. Hernandez, 175 F.3d 1202, 1999 U.S. App. LEXIS 8606 (10th Cir. N.M. 1999).
Dismissal.
Although a district court correctly determined that a former employee failed to exhaust her administrative remedies under the New Mexico Human Rights Act [28-1-1 NMSA 1978 et seq.] with respect to her claims of sexual harassment, the district court erred in dismissing the complaint to the extent that it could be liberally construed to state a common law claim for intentional infliction of emotional distress. Phifer v. Herbert, 1993-NMCA-012, 115 N.M. 135, 848 P.2d 5, 1993 N.M. App. LEXIS 8 (N.M. Ct. App. 1993).
Where a former employee claimed her former employer fired her because of her pregnancy and refused to rehire her, thus engaging in discriminatory employment practices as defined by 28-1-7A NMSA 1978, but failed to allege in her complaint that that she filed a grievance with the human rights commission under 28-1-10 NMSA 1978, the employer’s motion to dismiss was granted since compliance with the grievance procedure of the Human Rights Act, 28-1-1 to 28-1-14 NMSA 1978 was a prerequisite to suit. Jaramillo v. J.C. Penney Co., 1985-NMCA-002, 102 N.M. 272, 694 P.2d 528, 1985 N.M. App. LEXIS 523 (N.M. Ct. App. 1985).
Exhaustion of administrative remedies.
Two employees who alleged discrimination by their former employer failed to exhaust their administrative remedies under the New Mexico Human Rights Act where the employees failed to procure a notice of nondetermination from the New Mexico Human Rights Division because their federal Equal Employment Opportunity Commission right-to-sue letters could not be treated as orders of nondetermination from the Division. Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-109, 314 P.3d 681, 2013 N.M. App. LEXIS 89 (N.M. Ct. App. 2013).
Summary judgment granted in favor of the employer in the employee’s claims for age and disability discrimination was affirmed because the employee had not exhausted his administrative remedies before the human rights commission as required by this section. Gormley v. Coca-Cola Enters., 2004-NMCA-021, 135 N.M. 128, 85 P.3d 252, 2003 N.M. App. LEXIS 127 (N.M. Ct. App. 2003), aff'd, 2005-NMSC-003, 137 N.M. 192, 109 P.3d 280, 2005 N.M. LEXIS 90 (N.M. 2005).
Practice and procedure.
Adverse judgment on an employee’s discrimination claim against her employer under the human rights act, 28-1-10 NMSA 1978 et seq., for her fellow employees’ discrimination against her on the basis of national origin barred her discrimination claim against those employees under 42 U.S.C.S. §§ 1981 and 1983 where the state claim against the employer was based on its vicarious responsibility for the actions of its employees because the state judgment precluded the subsequent claim. Gonzales v. Hernandez, 175 F.3d 1202, 1999 U.S. App. LEXIS 8606 (10th Cir. N.M. 1999).
Court rejected a union’s construction of 28-1-10G NMSA 1978 of the New Mexico Human Rights Act that former union officers were barred from obtaining and appealing an order of nondetermination more than one year after filing administrative complaints with the Equal Employment Opportunity Commission, because the court could not say that the legislature intended the requirements of 28-1-10G NMSA 1978 to be jurisdictional. Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65, 1999 N.M. LEXIS 154 (N.M. 1999).
Section 28-1-7 NMSA 1978 only defines unlawful discriminatory practices; 28-1-10 NMSA 1978 sets out the procedure for initiating an action for unlawful discrimination. Dominguez v. Stone, 1981-NMCA-146, 97 N.M. 211, 638 P.2d 423, 1981 N.M. App. LEXIS 817 (N.M. Ct. App. 1981).
Time limitations.
Hostile work environment claims under Title VII and New Mexico Human Rights Act were time-barred because plaintiff could not avoid statute of limitations by tying one co-worker's pre-filing period sexual harassment conduct to another co-worker's later acts of exposing himself; that was not part of same hostile work environment because it was not same type of conduct, it occurred infrequently, and it was committed by different perpetrator. Martinez v. Southwest Cheese Co., LLC, 618 Fed. Appx. 349, 2015 U.S. App. LEXIS 10249 (10th Cir. N.M. 2015).
Summary judgment to the employer on the age discrimination claim was proper because the statute of limitations began to run upon the employee’s termination, she failed to allege sufficient facts regarding the nature of her efforts and diligence prior to discovering the cause of action to equitably toll the statute of limitations, and the employer’s actions of providing two different reasons for the termination were not grounds for applying equitable estoppel. Slusser v. Vantage Builders, Inc., 2013-NMCA-073, 306 P.3d 524, 2013 N.M. App. LEXIS 46 (N.M. Ct. App. 2013).
Statute of limitations in age discrimination cases commences when a plaintiff knows or should know of the adverse employment action, regardless of whether the plaintiff then has or should have knowledge of the employer’s discriminatory intent. Slusser v. Vantage Builders, Inc., 2013-NMCA-073, 306 P.3d 524, 2013 N.M. App. LEXIS 46 (N.M. Ct. App. 2013).
Employee’s claim for retaliation resulting in constructive discharge may be based on a series of acts over time, and there was no reason to exclude the employee’s retaliation claim from the continuing violation doctrine; all of the conduct that occurred during the employee’s employment could have been considered by the jury for her claim. Charles v. Regents of N.M. State Univ., 2011-NMCA-057, 150 N.M. 17, 256 P.3d 29, 2010 N.M. App. LEXIS 133 (N.M. Ct. App. 2010), cert. denied, 150 N.M. 558, 263 P.3d 900, 2011 N.M. LEXIS 10 (N.M. 2011).
Employee’s failure to file a discrimination complaint within the time set forth in former 4-33-9, 1953 Comp. (now 28-1-10 NMSA 1978) deprived the human rights commission of a bona fide opportunity to consider or act upon her complaint. Dubois v. Packard Bell Corp., 470 F.2d 973, 1972 U.S. App. LEXIS 6248 (10th Cir. N.M. 1972).
In a company’s petition to set aside an administrative subpoena issued by the Equal Employment Opportunity Commission to compel the company to comply with the EEOC’s investigation of the company following a complaint filed against the company by an employment applicant whose employment application was rejected by the company, the 90-day limitation period in which the applicant had to file a complaint against the company with either the state or federal agency did not apply as the last of two allegedly unlawful employment practices complained of by the applicant occurred within that 90-day period. Molybdenum Corp. of America v. EEOC, 457 F.2d 935, 1972 U.S. App. LEXIS 10430 (10th Cir. N.M. 1972).
Notes to Unpublished Decisions
Time limitations.
Unpublished decision: Former employee's hostile work environment claim was not time-barred to the extent it relied upon an incident in which a co-worker exposed himself to her; the incident was related to other alleged exposure incidents during the filing period. Macias v. Southwest Cheese Co., LLC, 624 Fed. Appx. 628, 2015 U.S. App. LEXIS 14832 (10th Cir. 2015).
Research References and Practice Aids
Cross references.
Hearing procedures, 28-1-11 NMSA 1978.