A. A person aggrieved by an order of the commission may obtain a trial de novo by filing a notice of appeal in the district court of the county where the discriminatory practice occurred or where the respondent does business. The notice of appeal must be filed 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, on all parties who appeared before the commission at their last known addresses. A copy of the notice of appeal shall also be served at the division 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 An order of the commission shall not be superseded or stayed during the appeal unless the district court so directs after notice to the commission and a hearing.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. If the complainant prevails in an action or proceeding under this section, 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 Comp., § 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.

Cross references. — For procedures governing appeals to the district court, see Rule 1-076 NMRA.

For scope of review of the district court, see Zamora v. Village of Ruidoso Downs, 120 N.M. 778, 907 P.2d 182 (1995).

2005 Multiple Amendments. — Laws 2005, ch. 309, § 1 and Laws 2005, ch. 311, § 2 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2005, ch. 311, § 2, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2005, ch. 309, § 1 and Laws 2005, ch. 311, § 2 are described below. To view the session laws in their entirety, see the 2005 session laws on NMOneSource.com.

Laws 2005, ch. 311, § 2, effective June 17, 2005, changed the time within which a notice of appeal must be filed from thirty days to ninety days in Subsection A and changed the appellate court in Subsection C from the supreme court to the court of appeals.

Laws 2005, ch. 309, § 1, effective June 17, 2005, in Subsection A, in the first sentence, after "trial de novo" added "by filing a notice of appeal"; in the second sentence, added "must be filed"; in the fourth sentence, added "A copy of the notice of appeal"; and in Subsection C, changed "supreme court" to "court of appeals".

I. GENERAL CONSIDERATION.

Collateral estoppel did not apply. — The findings made in administrative proceedings are not entitled to collateral estoppel in New Mexico Human Rights Act actions because by specifically providing for a "trial de novo in district court" in New Mexico Human Rights Act actions, the legislature created a statutory exception to the application of collateral estoppel in such cases. Contreras v. Miller Bonded, Inc., 2014-NMCA-011, cert. granted, 2013-NMCERT-012.

Where a municipal bus driver was terminated for cause; the bus driver's claim that the termination resulted from discrimination based on sex and medical condition was fully contested before the municipal personnel board; on appeal, the district court determined that there was substantial evidence to support the termination for cause and that the termination had not resulted from discrimination; and where a sheetmetal apprentice, who suffered a work injury and who did not give notice of the injury, was terminated for failure to show up for work; the sheetmetal apprentice's claim that the termination resulted from discrimination based on a serious medical condition was fully litigated before a workers' compensation judge who determined that the termination was for cause and that the sheetmetal apprentice had failed to give notice of the injury before the termination; on appeal, the court of appeals summarily affirmed the compensation order; the bus driver and the sheetmetal apprentice filed complaints in district court alleging that their terminations resulted from discrimination in violation of the New Mexico Human Rights Act; and the district court determined that the bus driver and the sheetmetal apprentice were precluded by collateral estoppel from re-litigating their discrimination claims and granted summary judgment against them, the district court erred in granting summary judgment because the findings of an administrative agency have no collateral estoppel effect on actions filed under the New Mexico Human Rights Act. Contreras v. Miller Bonded, Inc., 2014-NMCA-011, cert. granted, 2013-NMCERT-012.

Hostile work environment sexual harassment. — Plaintiff presented a prima facie case of hostile work environment sexual harassment where supervisor began to harass plaintiff when supervisor became general manager of store where plaintiff worked, supervisor follower plaintiff around, supervisor would approach plaintiff when she was alone, stare at her, and touch himself in a sexually suggestive manner, supervisor would stand near plaintiff and stare at her breasts, supervisor usually had an erection when plaintiff saw him and he rubbed up against plaintiff with an erection on one occasion; supervisor parked his car next to plaintiff's car even though supervisor had a designated parking area, supervisor would appear out of nowhere when plaintiff went to the warehouse; and supervisor's behavior made plaintiff feel uncomfortable and supervisor's presence affected plaintiff's performance at work. Ocana v. Am. Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58.

Vicarious liability of employer. — Employer may be held vicariously liable to employee for an actionable hostile environment created by a supervisor with immediate authority over the employee. Employer liability will be presumed where there is actionable sexual harassment and the harassing employee has supervisory authority over the victimized employee. Where no tangible employment action has been taken against the employee, the employer may rebut the presumption by proving that the employer exercised reasonable care to prevent and correct promptly any sexual harassing behavior and the employee reasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Ocana v. Am. Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58.

Section applies only to de novo appeals from commission decision; when the administrative procedure was never invoked, a district court action was not an appeal under this section. Jaramillo v. J.C. Penney Co., 1985-NMCA-002, 102 N.M. 272, 694 P.2d 528.

Venue. — The legislature intended that appeal for a trial de novo be limited to the district court of the county of the place elected by the commission to hear the complaint, as between a place of employer's doing business or of the alleged discriminatory practice. Montoya v. Super Save Warehouse Foods, 1991-NMSC-003, 111 N.M. 212, 804 P.2d 403.

Section not overridden by Tort Claims Act. — The Tort Claims Act (Article 4 of Chapter 41 NMSA 1978) does not override or supersede the Human Rights Act so as to shield a governmental entity from liability otherwise flowing from a discriminatory practice proscribed by the latter act. This section constitutes a waiver of sovereign immunity for liability imposed on public entities by the human rights commission, or by a district court on appeal from a commission decision, for violations of the Human Rights Act. Luboyeski v. Hill, 1994-NMSC-032, 117 N.M. 380, 872 P.2d 353.

Remedies are not exclusive. — The Whistleblower Protection Act (WPA), 10-16C-1 through -6 NMSA 1978, and the New Mexico Human Rights Act (HRA), 28-1-1 through -15 NMSA 1978, are not in irreconcilable conflict; a plaintiff may state a WPA claim alongside a claim under the HRA. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009.

Where plaintiff, a resident physician at the university of New Mexico school of medicine, was dismissed from the residency program and brought suit against the board of regents of the university of New Mexico claiming that her termination was driven by discrimination and retaliation in violation of the New Mexico Human Rights Act (HRA), 28-1-1 NMSA 1978 et seq., and the Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 et seq., the district court erred in dismissing plaintiff's WPA claims on the grounds that the WPA and the HRA are irreconcilably conflicting and in concluding that plaintiff could therefore only proceed under the HRA. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009.

Admissibility of reports not in record. — Ordinary rules of evidence govern the admissibility of administrative findings, and the district court is not precluded from adherence to the hearsay evidence rule in ruling on the admissibility of official reports or statements that are not in the nature of a transcript of the record. Behrmann v. Phototron Corp., 1990-NMSC-073, 110 N.M. 323, 795 P.2d 1015.

"Actual damages" construed. — The term "actual damages" in Subsection D is synonymous with compensatory damages, and excludes 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.

Evidence supporting award of front pay. — Evidence of plaintiff's inability to find full-time employment in his locality, despite his strenuous efforts, constitutes sufficient evidence of his inability to mitigate damages to support the court's discretion in determining that future employment would be unlikely and to support an award of front pay. Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433.

State immunity from interest not waived. — Subsection D of this section does 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.

Interest not authorized. — Trial court did not abuse its discretion by refusing to assess interest on the judgment, fees, and costs in plaintiff's retaliation suit, because an interest award under Section 56-8-4 NMSA 1978 is not an absolute right, but rather is a matter to be left to the discretion of the trial court, and there is no authority suggesting that the phrase "actual damages and reasonable attorney's fees" in Subsection D of this section should be expanded to include interest. Gonzales v. N.M. Dep't of Health, 2000-NMSC-029, 129 N.M. 586, 11 P.3d 550.

Validity of certain jury instructions. — The court did not abuse its discretion in giving "sex stereotyping" and "absence-of-direct-proof" instructions to the jury in an action brought by an employee who alleged that she was wrongfully terminated from her job as a salesperson because she became pregnant. Behrmann v. Phototron Corp., 1990-NMSC-073, 110 N.M. 323, 795 P.2d 1015.

II. EXHAUSTION OF ADMINISTRATIVE REMEDIES.

Exhaustion of remedies against individual defendants required. — Individual defendants cannot be sued in district court under this article unless and until the complainant exhausts her administrative remedies against them. Luboyeski v. Hill, 1994-NMSC-032, 117 N.M. 380, 872 P.2d 353.

Liability of individual. — Where plaintiff named only the corporation as a defendant in her complaint for discrimination before the human rights division, the president of the corporation was not now personally liable in district court because, while she exhausted her administrative remedies against the corporation, she failed to do so against the president individually. Sonntag v. Shaw, 2001-NMSC-015, 130 N.M. 238, 22 P.3d 1188.

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.

Exhaustion of administrative remedies. — 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.

III. TIME LIMITATIONS.

Time limitations. — Where human rights division did not give plaintiff's attorney notice of its record of decision even though attorney filed an entry of appearance with the division, district court could find that the division's actions tolled the thirty-day time limit to file an appeal to district court and required district court to deny defendant's motion for summary judgment that plaintiff had not timely filed notice of appeal. Ocana v. Am. Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58.

Time limit on filing complaint. — 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 thirty-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.

Time limits tolled. — Although the EEOC issued its decision in July, 1999, the division did not notify complainant's attorney of record of the decision because he was erroneously not put on the mail distribution list. Although the division normally corresponds with a complainant through his or her attorney once the attorney files an entry of appearance on the complainant's behalf, the division did not do this, and, as a result, complainant did not receive notice of the division's decision until much later. Thus, a fact-finder could find that the division's actions tolled the time limits. Ocana v. Am. Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58.

The statute of limitations for a state law claim over which a federal district court exerts supplemental jurisdiction is tolled while the federal case is pending. — Where plaintiff brought a claim against her employer individually and the employer's dental practice for discrimination on the basis of sex under the New Mexico Human Rights Act (NMHRA), 28-1-1 to 28-1-14 NMSA 1978, and where plaintiff also filed a federal complaint seeking damages for unlawful discriminatory and retaliatory practices in violation of the NMHRA and a Title VII claim against the dental practice, the state district court erred in dismissing plaintiff's claim against the dental practice because plaintiff filed her amended complaint in state court while her federal case was pending, and under 28 U.S.C. § 1367(d), the statute of limitations for any applicable state law claim over which a federal district court exerts supplemental jurisdiction under 28 U.S.C. § 1367(d) is tolled while the claim is pending and for a period of 30 days after it is dismissed by the federal court. The state district court, however, correctly dismissed plaintiff's NMHRA claim against her employer individually, because the employer was not named as a defendant in plaintiff's federal action, and therefore the federal court did not exert supplemental jurisdiction over that claim under 28 U.S.C. § 1367(a), and the statute of limitations on that claim as to the employer individually was not tolled under 28 U.S.C. § 1367(d). Williams v. Mann, 2017-NMCA-012.

IV. SCOPE OF REVIEW.

Scope of review. — In appeals from the human rights commission (now the human rights division of the department of labor), the district court, by virtue of specific provisions for trial de novo and jury trial, has the right to make an independent determination of the facts. The general rule in respect to appeals from administrative bodies is not applicable. Keller v. City of Albuquerque, 1973-NMSC-048, 85 N.M. 134, 509 P.2d 1329, overruled on other grounds, Green v. Kase, 113 N.M. 76, 823 P.2d 318.

Review of transcript. — There is no statutory requirement that on de novo appeals from the commission, the jury or the judge must hear the transcript of the proceedings before the commission. Green v. Kase, 1992-NMSC-004, 113 N.M. 76, 823 P.2d 318.

Administrative review distinguished. — The scope of judicial review contemplated by this section is much broader than in appeals brought generally under the Administrative Procedures Act (12-8-1 NMSA 1978 et seq.), where judicial review is restricted to the record. School district appealing decision of human rights commission was not required to state grounds for appeal, and therefore its notice of appeal was effective to give the district court jurisdiction to try the case de novo. Linton v. Farmington Mun. Schs., 1974-NMSC-079, 86 N.M. 748, 527 P.2d 789.

Review of jurisdiction. — Court of appeals has no authority to review a judgment of the district court on the issue of jurisdiction. Dominguez v. Stone, 1981-NMCA-146, 97 N.M. 211, 638 P.2d 423.

V. ATTORNEY FEES.

In determining the reasonableness of an award of attorney's fees, a court should consider a variety of factors, including: (1) the time and effort required, considering the complexity of the issues and the skill required; (2) the customary fee in the area for similar services; (3) the results obtained and the amount of the controversy; (4) time limitations; and (5) the ability, experience, and reputation of the attorney performing the services. Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433.

Recovery of attorney's fees. — Time records do not constitute essential evidence for recovering attorney's fees. Lucero v. Aladdin Beauty Colls., Inc., 1994-NMSC-022, 117 N.M. 269, 871 P.2d 365.

Computation of attorney fees. — Although the trial court did not determine what the customary fee would be, it did not abuse its discretion by awarding an amount that was approximate to the reasonable hourly rate multiplied by the reasonable number of hours spent on the case. Lucero v. Aladdin Beauty Colls., Inc., 1994-NMSC-022, 117 N.M. 269, 871 P.2d 365.

Recovery of attorney fees. — Subsection D of this section may be interpreted to include attorney's fees for administrative proceedings, but in order to receive the fees, the complainant must prevail. Gonzales v. N.M. Dep't of Health, 2000-NMSC-029, 129 N.M. 586, 11 P.3d 550.

Fee award at $200 per hour, rather than requested rate of $230, was not abuse of discretion where trial court judge did not cut number of hours claimed and actually added five hours for work in connection with motions for fees, costs, and interest, and resulting award of $97,290.47 was approximately 34% of total judgment rendered by jury and was actually greater than judgment following remittitur. Nava v. City of Santa Fe, 2004-NMSC-039, 136 N.M. 647, 103 P.3d 571.

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. — Damages and other relief under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 435.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

Evidence of discriminatory effect alone as sufficient to prove, or to establish prima facie case of, violation of Fair Housing Act (42 USCS § 3601 et seq.), 100 A.L.R. Fed. 97.

Factors or conditions in employment discrimination cases said to justify increase in attorney's fees awarded under § 706 (k) of Civil Rights Act of 1964 (42 USCS § 2000e-5(k)), 140 A.L.R. Fed. 301.

Availability of nominal damages in action under Title VII of Civil Rights Act of 1964 (42 USCS § 2000e et seq.), 143 A.L.R. Fed. 269.

Availability of damages under § 504 of the Rehabilitation Act (29 USCA § 794) in actions against persons or entities other than federal government or agencies thereof, 145 A.L.R. Fed. 353.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 USCA § 1981a; 42 USCA §§ 2000e et seq.), 150 A.L.R. Fed. 601.

Factors or conditions in employment discrimination cases said to justify decrease in attorney's fees awarded under § 706(k) of Civil Rights Act of 1964 (42 USCA § 2000e-5(k)), 151 A.L.R. Fed. 77.

Award of compensatory damages under 42 USCA § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.