A. A person aggrieved by an order of the commission may obtain a trial de novo in the district court of the county where the discriminatory practice occurred or where the respondent does business by filing a notice of appeal within ninety days from the date of service of the commission’s order. A copy of the notice of appeal shall be served personally or by certified mail, return receipt requested, at their last known address on all parties who appeared before the commission and shall also be served at the division office in Santa Fe. An order of the commission shall not be superseded or stayed during the appeal unless the district court so directs after notice to the commission and a hearing.
B. If testimony at the hearing was transcribed, the division shall, upon receipt of the notice of appeal, file so much of the transcript of the record as the parties requesting the transcript designate as necessary for the appeal with the district court.
C. Upon appeal, either party may request a jury. The jurisdiction of the district court is exclusive and its judgment is final, subject to further appeal to the court of appeals.
D. In any action or proceeding under this section, if the complainant prevails, the court in its discretion may allow actual damages and reasonable attorney fees and the state shall be liable the same as a private person.
HISTORY:
1953 4-33-12, enacted by Laws 1969, ch. 196, § 12; 1975, ch. 248, § 2; 1983, ch. 241, § 5; 1987, ch. 342, § 24; 2005, ch. 309, § 1; 2005, ch. 311, § 2.
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Laws 2005, ch. 208, § 27, repealed 28-1-15 NMSA 1978 which would have repealed this section on July 1, 2006.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 amendments. Laws 2005, ch. 311, § 2, effective June 17, 2005, substituting “ninety days” for “thirty days” in the first sentence of Subsection A; and substituting “court of appeals” for “supreme court” in Subsection C, was approved April 7, 2005. However, this section was also amended by Laws 2005, ch. 309, § 1, effective June 17, 2005, in Subsection A, in the second sentence, inserting “must be filed” and in the next to last sentence, adding “A copy of the notice of appeal”; and substituting “court of appeals” for “supreme court” in Subsection C, was also approved on April 7, 2005.
Because Laws 2005, ch. 309, § 1 was approved earlier on April 7, 2005, this section is set out as amended by Laws 2005, ch. 311, § 2. See 12-1-8 NMSA 1978.
Notes to Decisions
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).
Attorney fees.
Trial court properly awarded attorney’s fees pursuant to 28-1-13D NMSA 1978 to a beauty college instructor who prevailed in an employment discrimination action under the Human Rights Act, 28-1-1 to 28-1-14 NMSA 1978, where the instructor entered into a contingent fee contract with her attorney under the attorney’s representation that he would seek an award of attorney’s fees from the court rather than taking his fee from the instructor’s compensation for lost wages; 28-1-13D NMSA 1978 did not require the instructor to show that she had trouble obtaining effective counsel in order to obtain an award of attorney’s fees. Lucero v. Aladdin Beauty Colleges, 1994-NMSC-022, 117 N.M. 269, 871 P.2d 365, 1994 N.M. LEXIS 117 (N.M. 1994).
The trial court did not abuse its discretion under 28-1-13D NMSA 1978 by awarding attorney’s fees in an action under the New Mexico Human Rights Act where the award of prejudgment interest pursuant to 56-8-4B NMSA 1978 was not limited to fixed or ascertainable damages. Lucero v. Aladdin Beauty Colleges, 1994-NMSC-022, 117 N.M. 269, 871 P.2d 365, 1994 N.M. LEXIS 117 (N.M. 1994).
Damages.
Employee in sexual discrimination case was not entitled to post-judgment interest under 56-8-4A NMSA 1978 (prior to 2004 amendment) because 28-1-13D NMSA 1978 did not explicitly waive the state’s immunity from post-judgment interest. Nava v. City of Santa Fe, 2004-NMSC-039, 136 N.M. 647, 103 P.3d 571, 2004 N.M. LEXIS 562 (N.M. 2004).
Where an employee filed a discrimination claim against a medical center under the New Mexico Human Rights Act [28-1-1 NMSA 1978 et seq.], she was awarded damages and attorney’s fees after the jury determined that she had not been discriminated against but she had suffered retaliation by the medical center. Gonzales v. New Mexico Dep't of Health, 2000-NMSC-029, 2000-NMSC-029, 129 N.M. 586, 11 P.3d 550, 2000 N.M. LEXIS 351 (N.M. 2000).
The trial court did not abuse its discretion under 28-1-13D NMSA 1978 of the Act by awarding attorney’s fees in an action under the New Mexico Human Rights Act. The award of prejudgment interest pursuant to 56-8-4B NMSA 1978 was not limited to fixed or ascertainable damages. Lucero v. Aladdin Beauty Colleges, 1994-NMSC-022, 117 N.M. 269, 871 P.2d 365, 1994 N.M. LEXIS 117 (N.M. 1994).
The phrase “actual damages” as used in the New Mexico Human Rights Act, specifically 28-1-13D NMSA 1978, is synonymous with compensatory damages and compensatory damages are exclusive of punitive damages. As for prospective damages, because they are a species of actual damages, they properly may be granted where evidence has been presented as to their present worth. Behrmann v. Phototron Corp., 1990-NMSC-073, 110 N.M. 323, 795 P.2d 1015, 1990 N.M. LEXIS 232 (N.M. 1990).
Exhaustion of 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).
New Mexico Department of Labor, Human Rights Division’s Charge of Discrimination form failed to provide the claimant a fair and adequate opportunity to exhaust his administrative remedies against individual defendants, pursuant to this section; because of this inadequacy, the claimant was not required to have exhausted remedies before pursuing his suit. Lobato v. State Env't Dep't, 2012-NMSC-002, 267 P.3d 65, 2011 N.M. LEXIS 550 (N.M. 2011).
Findings of fact.
Under former 4-33-12, 1953 Comp. (now 28-1-13 NMSA 1978), in appeals from the Human Rights Commission the district court has the right to make an independent determination of the facts from the record in the case and any additional relevant evidence presented. Keller v. Albuquerque, 1973-NMSC-048, 85 N.M. 134, 509 P.2d 1329, 1973 N.M. LEXIS 1247 (N.M. 1973), overruled, Green v. Kase, 1992-NMSC-004, 113 N.M. 76, 823 P.2d 318, 1992 N.M. LEXIS 36 (N.M. 1992).
Jurisdiction.
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).
Employer could not attack the Human Rights Commission’s subject matter jurisdiction over discrimination claims in an enforcement action under 28-1-12 NMSA 1978 because such an action did not constitute a direct appeal and the employer failed to bring a direct appeal under this section from a monetary award to a claimant in which it could have raised the issue. State Human Rights Comm'n v. Accurate Mach. & Tool Co., 2010-NMCA-107, 149 N.M. 119, 245 P.3d 63, 2010 N.M. App. LEXIS 107 (N.M. Ct. App.), cert. denied, 149 N.M. 64, 243 P.3d 1146, 2010 N.M. LEXIS 515 (N.M. 2010).
Because the state district court has exclusive jurisdiction to hear an appeal from an order of the New Mexico human rights commission under 28-1-13 NMSA 1978, and no examples were provided where a federal court assumed jurisdiction over a claim under this statute, a federal court declined to exercise pendent jurisdiction over a claim under this statute. Roybal v. Albuquerque, 653 F. Supp. 102, 1986 U.S. Dist. LEXIS 23348 (D.N.M. 1986).
Where a former employee never invoked the administrative grievance procedure of the Human Rights Act, 28-1-1 to -14 NMSA 1978, and the action in the district court was not an appeal under 28-1-13 NMSA 1978, which provided for appeal from the district court to the supreme court and applied only to de novo appeals from a human rights commission decision, the court had jurisdiction to affirm the dismissal of the complaint pursuant to 34-5-8A(1) NMSA 1978, which set out the jurisdiction of the court of appeals. 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).
28-1-13 NMSA 1978 limits review of the district court’s judgment to the New Mexico Supreme Court. 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).
Parties.
In an action against a wedding photography business for discriminating against same-sex commitment ceremonies, a decision of the New Mexico Human Rights Commission did not render applicable the New Mexico Religious Freedom Restoration Act because the Commission was not a party in a trial de novo and subsequent appeal. Elane Photography, LLC v. Willock, 2013-NMSC-040, 309 P.3d 53, 2013 N.M. LEXIS 284 (N.M. 2013), cert. denied, 134 S. Ct. 1787, 188 L. Ed. 2d 757, 2014 U.S. LEXIS 2453 (U.S. 2014).
Preserving appeal.
School district’s failure to state the grounds for its appeal of a ruling by the Human Rights Commission of New Mexico that a teacher was discharged in violation of the New Mexico Human Rights Act, former 4-33-1, 1953 Comp. et seq. (now 28-1-1 et seq. NMSA 1978), as required by former 4-32-16, 1953 Comp. (now 12-8-16 NMSA 1978) did not deprive the district court of jurisdiction to try the case de novo because the language of former 4-32-16A, 1953 Comp. preserved the means of review provided for by former 4-33-12, 1953 Comp. (now 28-1-3 NMSA 1978) of the Human Rights Act and the procedural means for obtaining such review. Linton v. Farmington Mun. Sch., 1974-NMSC-079, 86 N.M. 748, 527 P.2d 789, 1974 N.M. LEXIS 1460 (N.M. 1974).
Review.
28-1-13A NMSA 1978, which provides for a “trial de novo,” construed in conjunction with 28-1-13C, NMSA 1978, which makes available a jury trial, reflects a legislative intention to grant the aggrieved party a full evidentiary hearing, not limited to or constrained by the transcript of the commission hearing. Green v. Kase, 1992-NMSC-004, 113 N.M. 76, 823 P.2d 318, 1992 N.M. LEXIS 36 (N.M. 1992).
28-1-13 NMSA 1978 does not contain a requirement that the jury or judge at a trial de novo on an appeal from a Human Rights Commission order hear the transcript of the proceedings before the Commission prior to the introduction of additional relevant evidence. Green v. Kase, 1992-NMSC-004, 113 N.M. 76, 823 P.2d 318, 1992 N.M. LEXIS 36 (N.M. 1992).
Nothing in the New Mexico Human Rights Act precludes the adherence to N.M. R. Evid. 11-803(H)(3) (1986) in ruling on the admissibility of official reports or statements that are not in the nature of a transcript of the record; although the act uses the word “appeal” in 28-1-13A NMSA 1978 in referring to the review that is to be undertaken, it is clear that the appeal contemplated is in actuality a trial de novo. Consequently, ordinary rules of evidence govern the admissibility of administrative findings. Behrmann v. Phototron Corp., 1990-NMSC-073, 110 N.M. 323, 795 P.2d 1015, 1990 N.M. LEXIS 232 (N.M. 1990).
Time limitations.
Where notices from the Equal Employment Opportunity Commission (EEOC) were not orders from the New Mexico Human Rights Division within the meaning of 28-1-13A NMSA 1978, the EEOC notices could not trigger the 30-day time limit for appealing an order from the Division. Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65, 1999 N.M. LEXIS 154 (N.M. 1999).
Where a school district appealed, pursuant to former 4-33-12, 1953 Comp. (now 28-1-13 NMSA 1978), the decision of the Human Rights Commission of New Mexico that a teacher was discharged in violation of the New Mexico Human Rights Act, former 4-33-1, 1953 Comp., et seq. (now 28-1-1 NMSA 1978 et seq.), and the teacher filed her affidavit of disqualification pursuant to former 21-5-8, 1953 Comp. before the transcript from the hearing below was filed with the district court, the teacher’s affidavit was timely because the cause was not at issue until this transcript was filed. Linton v. Farmington Mun. Sch., 1974-NMSC-079, 86 N.M. 748, 527 P.2d 789, 1974 N.M. LEXIS 1460 (N.M. 1974).
Venue.
Trial de novo of an appeal of the human rights commission is to be in the district court of the county where the commission originally chose to bring the action against the employer under 28-1-13A NMSA 1978. Montoya v. Super Save Warehouse Foods, 1991-NMSC-003, 111 N.M. 212, 804 P.2d 403, 1991 N.M. LEXIS 27 (N.M. 1991), amended, No. 18,940, 1991 N.M. LEXIS 34 (N.M. Feb. 12, 1991).
Waiver.
A dismissal of teacher’s human rights action against school system on grounds of sovereign immunity was improper where 28-1-13D NMSA 1978 waived immunity of the state and its political divisions for purpose of permitting recovery. Luboyeski v. Hill, 1994-NMSC-032, 117 N.M. 380, 872 P.2d 353, 1994 N.M. LEXIS 129 (N.M. 1994).
Research References and Practice Aids
Cross references.
Grievance procedure, 28-1-10 NMSA 1978.
New Mexico Law Review.
Article: Jurisdiction as May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico, Seth D. Montgomery and Andrew S. Montgomery, 36 N.M. L. Rev. 1 (2006).
Note: Civil Rights-No Private Attorney General Exception To The American Rule In New Mexico: New Mexico Right To Choose/National Abortion Rights Action League v. Johnson, Allison Crist, 31 N.M. L. Rev. 585 (2001).