2019 New Mexico Statutes
Chapter 28 - Human Rights
Article 1 - Human Rights
Section 28-1-10 - Grievance procedure.

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 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 Comp., § 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.

The 2005 amendment, effective June 17, 2005, changed the time when complaints must be filed from one hundred eighty days to three hundred days in Subsection A; deleted the former provision of Subsection D that the division shall receive an order of non-determination one hundred eighty days after receipt of the complaint; provided in Subsection D that the division shall receive and order of non-determination without delay after receipt of the complaint and in jointly filed cases, after the federal complaint has been closed; and changed the time the complainant may request a trial de novo from thirty days to ninety days.

The 1995 amendment, effective June 16, 1995, made minor stylistic changes in Subsection A, in Subsection F, inserted "and the complainant has not requested a waiver of right to hearing pursuant to the provisions of Subsection J of this section" in the first sentence and "or hearing officer" in the third sentence, and added Subsection J.

The 1993 amendment, effective June 18, 1993, inserted a new Subsection G, and redesignated former Subsections G and H as present Subsections H and I.

The 1991 amendment, effective July 1, 1991, inserted "human rights" in the first sentence of Subsection A; added Subsections D, E and H; redesignated former Subsections D and E as Subsections F and G; in Subsection F added the exception at the end of the first sentence; and made stylistic changes in Subsections A and B.

Exhaustion of administrative remedies. — A plaintiff must exhaust plaintiff's administrative remedies against a party before bringing an action against that party based on a claim under the Human Rights Act. Sonntag v. Shaw, 2001-NMSC-015, 130 N.M. 238, 22 P.3d 1188.

Independent tort action not precluded. — The Human Rights Act did not preclude the plaintiff from bringing a tort claim against her employer and supervisor based on allegations that the supervisor disparaged and humiliated her in front of other employees necessitating her hospitalization. Beavers v. Johnson Controls World Servs., Inc., 1995-NMCA-070, 120 N.M. 343, 901 P.2d 761.

Compliance with grievance procedure of Human Rights Act is prerequisite to suit under the act. Jaramillo v. J.C. Penney Co., 1985-NMCA-002, 102 N.M. 272, 694 P.2d 528.

Exhaustion of administrative remedies not required. — Because the Human Rights Act does not provide an exclusive remedy, exhaustion of administrative remedies under the act is not a prerequisite to proceeding with an independent tort claim. The legislature did not intend the act's remedies to be exclusive. Gandy v. Wal-Mart Stores, Inc., 1994-NMSC-040, 117 N.M. 441, 872 P.2d 859.

Effect of filing with EEOC. — Even though the plaintiff had filed a sex discrimination complaint against her former employer only with the equal employment opportunity commission (EEOC), she exhausted her administrative remedies and could file an appeal in the district court because a work-sharing agreement between the EEOC and New Mexico human rights division (NMHRD) and NMHRD regulations provided that NMHRD procedural requirements were met by filing a complaint with either the NMHRD or the EEOC. Sabella v. Manor Care, Inc., 1996-NMSC-014, 121 N.M. 596, 915 P.2d 901.

Notice required. — Plaintiff has to give notice to the New Mexico human rights commission (now the human rights division of the department of labor) of the alleged discrimination before commencement of his action in federal court. Harris v. Ericson, 457 F.2d 765 (10th Cir. 1972).

Notice of right to sue from EEOC. — Receiving a notice of right to sue from the equal employment opportunity commission did not satisfy the state law requirement of obtaining an order from the human rights division, nor did such notice affect the 30-day time limit for filing an appeal from an order of the division in state court. Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65.

Statute of limitations begins to run from the date of an adverse employment action. — In age discrimination cases, the statute of limitations commences to run 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.

Statute of limitations began to run upon termination of employment. — Where plaintiff, who held a managerial position in defendant's accounting department and who met or exceeded defendant's expectations, was terminated by defendant in February 2006 ostensibly because plaintiff's position had been eliminated by a restructuring of the accounting department; in June 2007, plaintiff learned that a younger person, who was paid substantially less than plaintiff, had been assigned plaintiff's position and had the same roles and performed the same job as plaintiff; plaintiff filed a charge of discrimination in October 2007; and plaintiff claimed that the statute of limitations began to run when plaintiff learned that defendant's action was discriminatory, the statute began to run upon plaintiff's termination and expired prior to the filing of plaintiff's action. Slusser v. Vantage Builders, Inc., 2013-NMCA-073.

Statute of limitations was not equitably tolled. — Where plaintiff asserted that evidence of discrimination existed immediately after plaintiff's termination that a younger employee took over plaintiff's responsibilities; and plaintiff never showed that plaintiff acted diligently to discover the evidence and pursue plaintiff's rights or that plaintiff could not have known about the discrimination even with reasonable diligence in investigating the basis of plaintiff's termination, the statute of limitations was not equitably tolled. Slusser v. Vantage Builders, Inc., 2013-NMCA-073.

Equitable estoppel did not prevent the assertion of statute of limitations. — Where defendant told plaintiff that plaintiff was being terminated because plaintiff's position had been eliminated as a result of a restructuring of defendant's business and plaintiff later learned that plaintiff's termination was performance related, defendant's original statement to plaintiff did not constitute active steps to prevent plaintiff from timely filing an age discrimination complaint and defendant was not equitably estopped from asserting a statute of limitations defense. Slusser v. Vantage Builders, Inc., 2013-NMCA-073.

Notice not timely filed. — Failure to file within the time set forth in Subsection A deprives the New Mexico commission of a bona fide opportunity to consider or act upon the discrimination complaint, and plaintiff cannot successfully rely on the resultant rejection as such a termination of state proceedings within the meaning of § 706(d), of Title VII of 1964 Civil Rights Act, 42 U.S.C. § 2000e-5(d), so as to invoke the extended federal filing period. Dubois v. Packard Bell Corp., 470 F.2d 973 (10th Cir. 1972).

Time limit under Subsection G. — Subsection G does not expressly place a jurisdictional time limit on the issuance of orders of nondetermination. Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65.

Effect of not meeting state notice requirement on federal age discrimination action. — The failure to satisfy the state notice requirement within the time limits specified by state law does not bar a federal action which has already been commenced, but such federal action should be held in abeyance so as to give the state agency the opportunity to entertain respondent's grievance. Mistretta v. Sandia Corp., 639 F.2d 588 (10th Cir. 1980).

Commencement of state proceeding prerequisite to federal age discrimination action. — The commencement of state proceedings, in so-called deferral states such as New Mexico, is a jurisdictional requirement of the federal Age Discrimination in Employment Act. Mistretta v. Sandia Corp., 639 F.2d 588 (10th Cir. 1980).

When statutory period commences to run anew. — The statutory period commences to run anew from the last allegedly unlawful employment practice. Molybdenum Corp. of Am. v. EEOC, 457 F.2d 935 (10th Cir. 1972).

Commencement when no continuing unlawful practice. — The limitation period for filing a complaint commenced to run when second employment application was denied for the same reason as first, and where refusal to hire was not actuated by a continuing discriminatory employment practice. Molybdenum Corp. of Am. v. EEOC, 457 F.2d 935 (10th Cir. 1972).

Exhaustion of remedies. — A plaintiff suing as the personal representative of a decedent, rather than on her own behalf, must still exhaust the administrative remedies pursuant to this act against the defendant before she may sue the defendant in court. Tafoya v. Bobroff, 865 F. Supp. 742 (D.N.M. 1994), aff'd, 74 F.3d 1250 (10th Cir. 1996).

Complaint form denied filers the right to exhaust administrative remedies. — Where the charge of discrimination form prescribed by regulation of the human rights division instructed filers to identify the alleged discriminating agency by the name and address of the agency, but did not require any identification of individual agency employees involved in the discrimination, the form did not provide filers a fair and adequate opportunity to exhaust administrative remedies and preserve the right to pursue judicial remedies for liability against individual defendants under the Human Rights Act and filers who filed the prescribed form were not required to have exhausted administrative remedies against the previously unnamed individual defendants before pursuing their judicial remedies against the previously unnamed individual defendants. Lobato v. N.M. Env't Dep't, 2012-NMSC-002, 268 P.3d 1284.

Law reviews. — For article, "Age Discrimination in Employment: A Comparison of the Federal and State Laws and Remedies in New Mexico," see 7 N.M. L. Rev. 51 (1976-77).

For article, "Selecting an Analogous State Limitations Statute in Reconstruction Civil Rights Claims: The Tenth Circuit's Resolution," see 15 N.M.L. Rev. 11 (1985).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15 Am. Jur. 2d Civil Rights § 261.

14 C.J.S. Civil Rights, §§ 448 to 462.