                                                                 I attest to the accuracy and
                                                                  integrity of this document
                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'05- 13:29:13 2012.01.12

          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-002

Filing Date: December 14, 2011

Docket No. 32,917

MICHAEL L. LOBATO,

        Plaintiff,

v.

STATE OF NEW MEXICO
ENVIRONMENT DEPARTMENT,
ENVIRONMENTAL HEALTH
DIVISION, et al.,

        Defendants.

CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW MEXICO
Bruce Douglas Black, U.S. District Court Judge

Santiago E. Juarez
Albuquerque, NM

for Plaintiff

Narvaez Law Firm, PA
Henry F. Narvaez
Albuquerque, NM

for Defendants

                                        OPINION

DANIELS, Chief Justice.

{1}     This case is before us on certification from the United States District Court for the
District of New Mexico to answer two questions on whether the New Mexico Department



                                             1
of Labor’s1 Charge of Discrimination form fairly and adequately allows a claimant to
exhaust administrative remedies and preserve the right to pursue judicial remedies for
individual liability claims under the New Mexico Human Rights Act (NMHRA), NMSA
1978, Sections 28-1-1 to -14 (1969, as amended through 2007). We hold that the Charge of
Discrimination form is so misleading that exhaustion of administrative remedies in the
circumstances of this case is not required.

I.     FACTUAL AND PROCEDURAL HISTORY

{2}     In 2008, Plaintiff Michael L. Lobato filed two complaints and one amended
complaint with the United States Equal Employment Opportunity Commission (EEOC)
charging his employer, the New Mexico Environment Department, with discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Civil Rights Act), 42 U.S.C. §§
2000e–2000e-17 (2006). Plaintiff filed his administrative complaints by using the New
Mexico Department of Labor, Human Rights Division’s2 (NMHRD) official Charge of
Discrimination form. Submitting this form to either the EEOC or the NMHRD constitutes
filing with both agencies, as is noted on the form directly above the signature line: “I want
this charge filed with both the EEOC and the State or local Agency. . . .” See 9.1.1.8(F)(2)
NMAC (9/1/1998) (“[A] complaint which is first filed with any duly authorized civil rights
agency holding a work sharing agreement . . . with the [NMHRD] shall be deemed to have
been filed with the [NMHRD] as of the date on which the complaint was first filed with any
of these agencies.”); see also Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 13, 127 N.M.
282, 980 P.2d 65 (stating that the NMHRD-EEOC work-sharing agreement “contemplates
that a person will be allowed to use federal EEOC procedures to set in motion the grievance
procedures of the NMHRA to the limited extent that, if he or she initially files a complaint
with the EEOC, that complaint will be deemed to have been properly filed with the
[NMHRD] as well.”); Sabella v. Manor Care, Inc., 1996-NMSC-014, ¶ 9, 121 N.M. 596,
915 P.2d 901 (holding that the “NMHRD procedural requirements may be met by filing a
complaint with either the NMHRD or the EEOC”).

{3}     According to the instructions on the NMHRD’s Charge of Discrimination form,
Plaintiff was required to (1) name the “Employer, Labor Organization, Employment Agency,
Apprenticeship Committee, or State or Local Government Agency” he believed
discriminated against him; (2) provide that entity’s street address and phone number; and (3)
explain the “PARTICULARS” of his charge. Nothing on the NMHRD Charge of


       1
        The New Mexico Department of Labor is now the New Mexico Department of
Workforce Solutions. See NMSA1978, § 9-26-2 (2007). Because the Department of
Labor’s name appears on the form at issue in this case, we refer to the department by its
former name.
       2
        The Human Rights Division is now the Human Rights Bureau. See NMSA 1978,
§ 28-1-2(D) (2007).

                                             2
Discrimination form instructed Plaintiff to add any identification of individual agency
employees involved in the alleged discrimination.

{4}     In December 2009, Plaintiff filed a complaint in the United States District Court for
the District of New Mexico stating in part that the EEOC “complaints [had been] processed
to conclusion.” This judicial complaint was based on the same work-related incidents and
alleged, among other claims, violations of both the Civil Rights Act and the NMHRA.
Plaintiff named as defendants the New Mexico Environment Department and multiple
employees of the department. The individually named defendants responded by filing a
motion to dismiss, arguing that (1) individuals are not subject to liability under the Civil
Rights Act, and (2) Plaintiff did not exhaust his NMHRA administrative remedies and
preserve his right to sue any individual defendant not specifically identified in Plaintiff’s
original NMHRD Charge of Discrimination forms.

{5}     The United States District Court granted Defendants’ motion to dismiss on the Civil
Rights Act claims. On the NMHRA claims, the district court denied the motion for those
defendants identified by their job positions within the “PARTICULARS” narrative on
Plaintiff’s Charge of Discrimination forms, and sua sponte certified two questions to this
Court regarding the defendants not otherwise identified in those administrative forms. See
NMSA 1978, § 39-7-4 (1997) and Rule 12-607 NMRA (providing this Court with the
authority to answer certified questions). Having accepted certification, we reformulate those
questions, as permitted by NMSA 1978, Section 39-7-5 (1997):

       (1) Does the NMHRD’s Charge of Discrimination form, which instructs
       filers to identify the alleged discrimination by the name and address of the
       discriminating agency or entity but not the individual actor, provide a fair
       and adequate opportunity to exhaust administrative remedies against
       individual actors under the NMHRA?

       (2) If the Charge of Discrimination form is inadequate, what remedy is
       proper for a plaintiff who used the NMHRD form and consequently failed to
       exhaust administrative remedies against individuals?

II.    STANDARD OF REVIEW

{6}      This case requires us to interpret the language of the NMHRA, a matter of law we
review de novo. See State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868.
When interpreting a statute, our primary goal is “to ascertain and give effect to the intent of
the Legislature.” Id. “To determine legislative intent, we look not only to the language used
in the statute, but also to the purpose to be achieved and the wrong to be remedied.” Hovet
v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69.

III.   DISCUSSION


                                              3
A.     The Charge of Discrimination Form Violates the NMHRA.

{7}     We first address the question of whether the NMHRD Charge of Discrimination form
provides a fair and adequate opportunity to pursue individual liability claims as provided by
the NMHRA. Plaintiff argues that the official form is inadequate and misleading because
the form directed him to name the discriminating agency, but nothing in the form instructed
him to identify individual agency employees involved in the alleged incidents. Defendants
argue that any inadequacy in the form is rectified because (1) Plaintiff filed the NMHRD’s
Charge of Discrimination forms with the EEOC only, which supplements the form’s
information with an intake questionnaire in which Plaintiff mentioned some of the
individuals relevant to his claim, and (2) some individual defendants could be identified in
the narrative of the “PARTICULARS” section. Defendants take the position that both the
NMHRD Charge of Discrimination form’s “PARTICULARS” section and the supplemental
EEOC questionnaire provide means to identify individual respondents and satisfy
administrative exhaustion requirements. Based on the statutory language of the NMHRA
and its legislative purpose, Defendants’ arguments fail.

{8}    The NMHRA is a comprehensive scheme enacted in 1969 for the primary purpose
of providing administrative and judicial remedies for unlawful discrimination in the
workplace. See §§ 28-1-7, -10, -11; see also Mitchell-Carr, 1999-NMSC-025, ¶ 16
(recognizing that the NMHRA provides “the right, the procedure, and the remedy” for
discrimination complaints) (internal quotation marks and citation omitted). Unlike the Civil
Rights Act, the NMHRA permits unlawful discrimination claims against individuals. See
§ 28-1-7(I) (defining unlawful acts by “any person” as well as any employer); see also
Sonntag v. Shaw, 2001-NMSC-015, ¶ 12, 130 N.M. 238, 22 P.3d 1188 (recognizing
individual liability for NMHRA discrimination claims). In keeping with the NMHRA’s
individual liability provisions, any person reporting unlawful discrimination must “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.” Section 28-1-10(A) (emphasis added). See also 9.1.1.8(D)(2) NMAC (requiring
the name and address of the “respondent” to be filed in the written complaint form;
“respondent” is defined to include “person,” 9.1.1.7(EE) NMAC (9/1/1998)).

{9}     Despite these statutory and rule requirements, the NMHRD’s official Charge of
Discrimination form instructs filers to report only the employer or agency involved but does
not instruct filers to report the “person” involved. Asking a filer to state the
“PARTICULARS” of a claim does not overcome this defect, as an open-ended request to
state the “PARTICULARS” does not alert the filer to the requirement that the filer must also
provide the names and addresses of the individuals involved. Nor does the EEOC’s use of
a more detailed intake questionnaire overcome this defect. EEOC claims are resolved
independently of NMHRD action. See Mitchell-Carr, 1999-NMSC-025, ¶ 15 (noting that
the work-sharing agreement between the NMHRD and the EEOC recognizes dual filing but
not dual resolution of discrimination complaints).

                                             4
{10} While the names and addresses of individuals are superfluous to the federal Civil
Rights Act claims, this information is critical to preserving judicial remedies against
individuals under the NMHRA. NMHRA claims require administrative exhaustion before
a plaintiff can bring suit. See § 28-1-13; see also Sonntag, 2001-NMSC-015, ¶¶ 12-13
(holding that a failure to name the owner of a corporation in his personal capacity barred suit
against him in district court); Mitchell-Carr, 1999-NMSC-025, ¶¶ 10, 41 (holding summary
judgment was proper because the individual defendant was not named in the original
NMHRA complaint); Sabella, 1996-NMSC-014, ¶¶ 9, 23 (requiring exhaustion of
administrative procedures as a prerequisite to suit in district court); Luboyeski v. Hill, 117
N.M. 380, 382-83, 872 P.2d 353, 355-56 (1994) (holding that individual defendants could
not be named for the first time in district court). The NMHRA creates a cause of action
against individuals, which necessarily requires the naming of these individuals in the
administrative complaint, and requires administrative exhaustion against these individuals
as a prerequisite to judicial remedies. For the NMHRD’s official Charge of Discrimination
form to ask for the name and address of the discriminating entity but not for the names and
addresses of the individuals not only makes the complaint form inadequate to serve its
statutory purpose but makes it affirmatively misleading. It creates a trap for unwary
claimants to forfeit their statutory rights and judicial remedies. Accordingly, we hold the
NHMRD’s Charge of Discrimination form fails to provide a fair and adequate opportunity
to exhaust administrative remedies against individual defendants as required by the
NMHRA.

B.     Preserving Plaintiff’s Access to the Courts Outweighs Administrative Notice
       and Prejudice Concerns.

{11} Having held that Plaintiff did not have a fair and adequate opportunity to exhaust
administrative remedies against individual defendants, we turn to the question of the
appropriate remedy for Plaintiff. Plaintiff argues we should waive administrative exhaustion
because the administrative remedies provided by the state are inadequate, relying on Franco
v. Carlsbad Municipal Schools, 2001-NMCA-042, ¶ 20, 130 N.M. 543, 28 P.3d 531 (holding
that exhaustion of administrative remedies was not required when the agency’s failure to
meaningfully inform an employee of those remedies thwarted the employee’s ability to
invoke them). Defendants argue that waiving administrative exhaustion violates their notice
protections under the NMHRA, see § 28-1-10(B) and 9.1.1.8(H) NMAC (requiring anyone
named in a complaint to be furnished with a copy of that complaint), and unduly denies
Defendants an opportunity to resolve the dispute in administrative proceedings before the
NMHRD, rather than before a court as defendants in a judicial proceeding. Weighing these
harms, we conclude that barring Plaintiff’s judicial remedy solely because he followed
explicit and misleading instructions in the NMHRD’s official complaint form is a far greater
injustice than the less significant effect imposed on Defendants by the lack of formal
individual notice in the antecedent administrative proceedings.

{12} The doctrine of administrative exhaustion arose as a way to coordinate the roles of
the administrative and judicial branches, both of which are charged with regulatory duties.

                                              5
State ex. rel Norvell v. Arizona Pub. Serv. Co., 85 N.M. 165, 170, 510 P.2d 98, 103 (1973)
(distinguishing exhaustion from primary jurisdiction and noting that under the exhaustion
doctrine, “judicial interference is withheld until the administrative process has run its
course.”) See also 5 Jacob A. Stein et al., Administrative Law § 49.01 (2011), at 49-2
(stating “[t]he doctrine of exhaustion of administrative remedies serves interests of judicial
economy by requiring parties to pursue all administrative solutions before seeking judicial
relief”). A rigid adherence to administrative exhaustion is not required in circumstances
where the doctrine is inappropriate. See Callahan v. N.M. Fed’n of Teachers–TVI, 2006-
NMSC-010, ¶ 24, 139 N.M. 201, 131 P.3d. 51 (noting the general rule that exhaustion is not
required if the administrative remedies are inadequate); Franco, 2001-NMCA-042, ¶ 20
(holding that exhaustion is not required where the administrative remedies are inadequate);
see also Stein, supra, § 49.02, at 49-47 (noting that exhaustion may be waived when agency
proceedings are futile).

{13} In Franco, a school employee was given a written termination notice and a copy of
the state regulations on termination but was not told of his right to present evidence at a
special session of the school board, planned for that evening, at which his final termination
would be voted on. Franco, 2001-NMCA-042, ¶ 6. Whether intentional or inadvertent, the
school district’s own procedures thwarted the employee’s ability to exhaust—or even
initiate—the administrative remedies afforded to him by statute. Id. ¶ 20. Franco held that
in those circumstances exhaustion of the administrative remedies was not required. See id.

{14} In this case, like Franco, Plaintiff relied on the administrative procedures he was
instructed to follow, and that reliance now threatens to deny him the statutory remedies to
which he is entitled. Plaintiff’s NMHRA claims are now time-barred. See § 28-1-10(A)
(stating NMHRA complaints must be filed within three hundred days of the incident in
question). While Defendants correctly note that the administrative notice requirements of
the NMHRA will not have been met if Plaintiff’s suit is permitted to go forward, Defendants
fail to show how this lack of notice in the administrative proceeding outweighs the harm of
Plaintiff’s forfeiture of his judicial remedy under the NMHRA. Because Plaintiff’s suit
arises out of the very incidents reported in the NMHRD Charge of Discrimination forms,
Defendants were likely to have had at least constructive notice of their alleged involvement
in these allegations during any prior administrative proceedings. Balancing the equities, we
hold that in these limited circumstances the requisite administrative exhaustion of the
NMHRA should not be required in order for Plaintiff to pursue his judicial remedies under
the statute.

{15} To avoid this situation in the future and to honor legislative intent, we suggest the
NMHRD revise its Charge of Discrimination form to instruct filers in plain language to
include the names and addresses of any individuals involved. This will allow claimants to
have an opportunity to pursue all of their rights under the NMHRA and will provide named
defendants with notice and opportunity to be heard in all proceedings.

III.   CONCLUSION

                                              6
{16} In order to preserve individual liability claims under the NMHRA, we answer the two
certified questions by holding (1) the NMHRD’s Charge of Discrimination form failed to
provide Plaintiff a fair and adequate opportunity to exhaust administrative remedies against
individual defendants; and (2) because of this inadequacy, Plaintiff is not required to have
exhausted administrative remedies against the previously unnamed individual defendants
before pursuing his suit in the United States District Court.

{17}    IT IS SO ORDERED.

                                              ____________________________________
                                              CHARLES W. DANIELS, Chief Justice

WE CONCUR:

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
STANLEY WHITAKER, Judge, Sitting by designation

Topic Index for Lobato v. NMED, Docket No. 32,917

ST                    STATUTES
ST-IP                 Interpretation
ST-LI                 Legislative Intent
ST-RC                 Rules of Construction

AL                    ADMINISTRATIVE LAW AND PROCEDURE
AL-AA                 Administrative Appeal
AL-HR                 Hearings
AL-JR                 Judicial Review
AL-LI                 Legislative Intent
AL-NO                 Notice

CR                    CIVIL RIGHTS
CR-DS                 Discrimination
CR-PR                 Procedure


                                             7
FL      FEDERAL LAW
FL-CR   Civil Rights
FL-PR   Procedure




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