FEPA Discrimination Charge and Right-to-Sue Procedure — New Mexico

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FEPA Discrimination Charge and Right-to-Sue Procedure (NEW MEXICO)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

TO: [CLIENT NAME]
FROM: [COUNSEL NAME]
DATE: [__/__/____]
RE: Eligibility and Strategy — NMHRA Charge of Discrimination

A.1 Coverage Analysis

A.2 Protected Class Identified

☐ Race ☐ Color ☐ National origin ☐ Ancestry
☐ Sex ☐ Sexual orientation ☐ Gender identity
☐ Age (40+) ☐ Religion ☐ Physical disability ☐ Mental disability
☐ Serious medical condition ☐ Spousal affiliation
☐ Retaliation for protected activity — § 28-1-7(I)
☐ Pregnancy / childbirth / related conditions (treated as sex under NMHRA)

A.3 Theory of Liability

☐ Disparate treatment
☐ Disparate impact
☐ Hostile work environment / harassment
☐ Failure to accommodate (disability / religion)
☐ Constructive discharge
☐ Retaliation
☐ Aiding / abetting (individual liability under § 28-1-7(I))

A.4 Individual Respondents (Lobato analysis)

A.5 Strategic Decision Points

☐ File with NMHRB only (state-only claims)
☐ File with EEOC and cross-file with NMHRB (dual-track)
☐ Request Order of Nondetermination immediately (faster path to court)
☐ Pursue full Bureau investigation (administrative remedies, conciliation leverage)
☐ Mediation requested through NMHRB ADR program
☐ Preserve federal Title VII / ADEA / ADA claims (EEOC charge required within 300 days)

Part B — Charge of Discrimination (FEPA Filing)

FILED WITH: New Mexico Human Rights Bureau, Department of Workforce Solutions
1596 Pacheco Street, Suite 103, Santa Fe, NM 87505
CROSS-FILED WITH: U.S. Equal Employment Opportunity Commission (EEOC) — Albuquerque Area Office

Re: Charge of Discrimination — NMHRA, NMSA 1978 § 28-1-7 — [CHARGING PARTY]

B.1 Charging Party

B.2 Respondent(s)

B.3 Cause(s) of Discrimination (NMSA § 28-1-7)

☐ Race ☐ Color ☐ National origin ☐ Ancestry
☐ Religion ☐ Sex ☐ Sexual orientation ☐ Gender identity
☐ Age (40+) ☐ Physical disability ☐ Mental disability
☐ Serious medical condition ☐ Spousal affiliation
☐ Retaliation ☐ Pregnancy / childbirth / related conditions

B.4 Date(s) Discrimination Took Place

B.5 The Particulars

1. I, [CHARGING PARTY], was hired by Respondent [EMPLOYER] on [__/__/____] as [POSITION] at a rate of [$_____/hr or $_____/year].

2. I am a member of a protected class under NMSA § 28-1-7 because [____________________].

3. On [__/__/____], [INDIVIDUAL RESPONDENT 1, TITLE] [____________________].

4. On [__/__/____], [INDIVIDUAL RESPONDENT 2, TITLE] [____________________].

5. I [complained / requested accommodation / engaged in protected activity] on [__/__/____] by [____________________].

6. On [__/__/____], Respondent [terminated / demoted / failed to promote / subjected me to hostile work environment / failed to accommodate] me.

7. Similarly situated employees outside my protected class [were not / were] treated the same. Specifically, [____________________].

8. I believe I have been discriminated against on the basis of [____________] in violation of the New Mexico Human Rights Act, NMSA 1978 § 28-1-7, and Title VII of the Civil Rights Act of 1964 / ADEA / ADA (as applicable).

9. The conduct described above was engaged in by the individuals named in Section B.2 above, each of whom is named as a respondent for purposes of individual liability under NMHRA. See Lobato v. N.M. Env't Dep't, 2014-NMSC-016.

B.6 Verification

I declare under penalty of perjury under the laws of the State of New Mexico that the foregoing is true and correct.

Subscribed and sworn before me this [____] day of [__________], 20[____].

[____________________]
Notary Public — State of New Mexico
My commission expires: [__/__/____]

Part C — Right-to-Sue Demand Letter (Request for Order of Nondetermination)

[__/__/____]

Director, New Mexico Human Rights Bureau
Department of Workforce Solutions
1596 Pacheco Street, Suite 103
Santa Fe, NM 87505
By certified mail, return receipt requested
Email: [email protected]

Re: Request for Order of Nondetermination — NMSA 1978 § 28-1-10(D) — Charge No. [_______________] — [CHARGING PARTY] v. [RESPONDENT]

Dear Director:

Pursuant to NMSA 1978 § 28-1-10(D), I, [CHARGING PARTY], the complainant in the above-captioned matter, hereby request that the Director issue an Order of Nondetermination without delay.

1. The above-referenced charge was filed with the Bureau on [__/__/____].

2. ☐ This is a state-only charge. ☐ This charge was dual-filed with the EEOC under Charge No. [_______________], which closed on [__/__/____] with the issuance of a Notice of Right to Sue.

3. I hereby invoke my statutory right under § 28-1-10(D) to an Order of Nondetermination and request that the Director issue the order without delay.

4. I understand that, upon service of the Order of Nondetermination, I will have 90 days under NMSA § 28-1-13(A) to file a notice of appeal and obtain a trial de novo in the district court of the county where the alleged discriminatory practice occurred or where Respondent does business.

5. Please serve the Order of Nondetermination on the undersigned and on counsel of record at the addresses below.

Respectfully,

[____________________]
[CHARGING PARTY / Counsel]

Part D — Pre-Suit Civil Complaint (Template)

STATE OF NEW MEXICO
[COUNTY] COUNTY DISTRICT COURT
[JUDICIAL DISTRICT] JUDICIAL DISTRICT

Case No. [_______________]
Jury Trial Demanded

NOTICE OF APPEAL AND COMPLAINT FOR EMPLOYMENT DISCRIMINATION

(NMSA 1978 § 28-1-13; § 28-1-7)

Plaintiff [NAME], by and through undersigned counsel, brings this Notice of Appeal pursuant to NMSA 1978 § 28-1-13 and Complaint for Employment Discrimination pursuant to NMSA 1978 § 28-1-7, and alleges as follows:

I. PARTIES

1. Plaintiff [NAME] is and at all material times was a resident of [____________] County, New Mexico.

2. Defendant [EMPLOYER] is a [corporation / LLC / partnership] doing business in [____________] County, New Mexico.

3. Defendant [INDIVIDUAL 1] is and at all material times was a [title] employed by [EMPLOYER] and engaged in the discriminatory conduct alleged herein within the scope of that employment.

II. JURISDICTION AND VENUE

4. This Court has subject-matter jurisdiction under NMSA § 28-1-13(A) and (C).

5. Venue is proper in [____________] County because the discriminatory practice occurred in this county and/or Respondent does business in this county.

6. Plaintiff timely filed a Charge of Discrimination with the New Mexico Human Rights Bureau on [__/__/____] (Charge No. [_______]) and received an Order of Nondetermination dated [__/__/____]. This Notice of Appeal / Complaint is filed within 90 days of service of that Order as required by § 28-1-13(A).

III. FACTS

7. [Incorporate facts from Charge particulars, expanded.]

8.–[__]. [____________________].

IV. CAUSES OF ACTION

Count I — Discrimination on the basis of [____________] (NMSA § 28-1-7(A))
Count II — Retaliation (NMSA § 28-1-7(I))
Count III — Aiding and abetting individual liability (NMSA § 28-1-7(I))
Count IV — Title VII / ADEA / ADA (parallel federal claim, if dual-filed)

V. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally, for:

a. Back pay and lost benefits;
b. Front pay or reinstatement;
c. Compensatory / actual damages for emotional distress and humiliation;
d. Punitive damages (against non-state Defendants);
e. Reasonable attorney fees and costs under NMSA § 28-1-13(D);
f. Pre-judgment and post-judgment interest;
g. Such other and further relief as the Court deems just.

VI. JURY DEMAND

Plaintiff demands a trial by jury on all issues so triable pursuant to NMSA § 28-1-13(C).

Dated: [__/__/____]

Respectfully submitted,

[____________________]
[COUNSEL NAME, NMBA #_____]
[FIRM]
[ADDRESS]
[PHONE / EMAIL]
Attorney for Plaintiff

Part E — Pre-Filing Checklist

Coverage and Timing

☐ Employer has 4+ employees (NMHRA threshold) — § 28-1-2(B)
☐ Adverse act occurred within last 300 days — § 28-1-10(A)
☐ Continuing-violation analysis completed (if older acts included)
☐ Last act date and 300-day deadline calendared
☐ Federal 300-day EEOC deadline calendared (if dual-filing)

Charge Drafting

☐ All individual respondents named in B.2 AND in particulars — Lobato v. NMED
☐ Each individual's title, address, and specific conduct alleged
☐ Each protected class basis checked and pleaded in particulars
☐ Dates of each adverse act stated
☐ Protected activity (if retaliation) stated with date
☐ Charge verified and notarized
☐ Cross-filing box checked for EEOC dual-filing

Filing and Service

☐ Charge filed with NMHRB by certified mail / in person / email
☐ Confirmation of filing date obtained
☐ EEOC dual-filing confirmation obtained
☐ Litigation hold issued to client
☐ Client preservation letter sent to employer

Investigation Stage

☐ Position statement deadlines tracked (typically 30 days from notice)
☐ Witness list prepared
☐ Document evidence compiled (personnel file, emails, comparators)
☐ Mediation/ADR option considered

Order of Nondetermination / Right to Sue

☐ Decision on strategy: full investigation vs. immediate Order of Nondetermination
☐ Request letter under § 28-1-10(D) drafted (Part C)
☐ Federal EEOC closure confirmed (if dual-filed)
☐ Order of Nondetermination received and date of service docketed

District Court Filing

☐ 90-day deadline from service of Order calendared — § 28-1-13(A)
☐ Venue determined (county of discrimination or respondent's business)
☐ Complaint drafted (Part D)
☐ All NMHRA respondents named consistent with charge
☐ Jury demand included
☐ Filing fee or in forma pauperis arranged
☐ Service plan for each defendant
☐ Federal-court removal risk assessed (if federal claims dual-pleaded)

Damages Documentation

☐ Wage records / pay stubs collected
☐ Lost benefits valuation
☐ Mitigation efforts documented (job search log)
☐ Emotional distress evidence (provider records, witness statements)
☐ Attorney-fee timekeeping protocol in place

Sources and References

• New Mexico Human Rights Bureau (NMHRB) — https://www.dws.state.nm.us/Labor-Relations/Human-Rights-Information
• NMSA 1978 § 28-1-7 (Unlawful discriminatory practices) — https://nmonesource.com/nmos/nmsa/en/item/4374/index.do#!fragment//
• NMSA 1978 § 28-1-10 (Grievance procedure / 300-day filing / Order of Nondetermination) — https://codes.findlaw.com/nm/chapter-28-human-rights/nm-st-sect-28-1-10/
• NMSA 1978 § 28-1-13 (Appeal / 90-day district-court trial de novo) — https://codes.findlaw.com/nm/chapter-28-human-rights/nm-st-sect-28-1-13/
• 9.1.1 NMAC — NMHRB Procedural Rules — https://www.dws.state.nm.us/Portals/0/DM/LaborRelations/9.1.1_HumanRights_Amendment.pdf
• Lobato v. N.M. Environment Dep't, 2014-NMSC-016 (individual liability and DWS charge form) — https://www.littler.com/news-analysis/asap/new-mexico-charge-discrimination-form-creates-trap-unwary
• Sabella v. Manor Care, 1996-NMSC-014 (Order of Nondetermination triggers de novo district-court appeal)
• EEOC Albuquerque Area Office — https://www.eeoc.gov/field-office/albuquerque/location
• New Mexico Workplace Fairness — https://www.workplacefairness.org/filing-a-discrimination-claim-new-mexico/

This template is provided for informational purposes only and does not constitute legal advice. Consult a New Mexico-licensed attorney before filing any charge or civil action. Verify all statutory citations against the current New Mexico Statutes Annotated.