N.M. Admin. Code § 9.1.1.8

Current through Register Vol. 35, No. 21, November 5, 2024

Section 9.1.1.8 - FILING A COMPLAINT

A. Persons who may file a complaint:

(1) any person claiming to be aggrieved by an unlawful discriminatory practice under the New Mexico Humans Rights Act as provided in Section 28-1-1 NMSA 1978 et seq. or federal anti-discrimination laws enforced by the Equal Employment Opportunity Commission (EEOC);

(2) any person claimant to be aggrieved by an employer in violation of the Criminal Offender Employment Act as provided in Section 28-2-3 and 28-2-3.1 NMSA 1978;

(3) any person claiming to be aggrieved by an employer in violation of the Lynn and Erin Compassionate Use Act as provided in Section 26-2B-9 NMSA 1978; or

(4) any person claiming to be aggrieved by an employer in violation of the Fair Pay for Women Act as provided in Section 28-23-3 or 28-23-5 NMSA 1978.

B. Time limit for filing: All complaints shall be filed with the bureau within 300 calendar days after the last alleged act of unlawful discrimination was committed. The bureau does not have jurisdiction over complaints that are filed more than 300 calendar days after the last alleged act of discrimination.

C. Form of complaint:

(1) Complainants may make, sign, and file a written complaint with the bureau individually or through a legally authorized representative.

(2) The complaint of any person claiming to be aggrieved under Paragraph (1) of Subsection A of this section shall be in writing on a human rights bureau charge of discrimination form, on an EEOC form 5, or on such other form as the human rights bureau deems acceptable.

(3) The complaint of any person claiming to be aggrieved under Paragraphs (2), (3), or (4) of Subsection A of this section may only be submitted on a human rights bureau charge form or other such form as the human rights bureau deems acceptable.

(4) The complainant may be assisted by the staff of the human rights bureau in preparing a complaint, unless the complainant is represented by legal counsel, in which case complainant's counsel will be required to prepare and file the complaint on behalf of the complainant.

D. Contents of the written complaint. Each complaint shall contain:

(1) the name and current mailing address of the complainant;

(2) the name and mailing address of the respondent;

(3) a statement describing the occurrence of an unlawful discriminatory practice that the complainant alleges. This description shall include:

(a) a statement of the general nature of complainant's claim; and

(b) an identification of the particular provisions of the state or federal statutes or of the specific regulations upon which the complainant bases the claim; and

(c) the time, date, place and nature of the occurrences alleged to be an unlawful discriminatory practice;

(4) the factual basis or grounds supporting complainant's allegation of unlawful discriminatory practice;

(5) the first alleged date and the most recent alleged date an unlawful discriminatory practice occurred; and

(6) the signature of the complainant and the date of signing.

E. Manner of filing the complaint:

(1) The complaint shall be deemed filed as of the date the perfected complaint is received by the bureau office. A perfected complaint contains all the information required in Subsection D of this section. If the complaint is missing any of the listed requirements, it shall be returned to the complainant or their legal representative for completion before the complaint will be deemed perfected.

(2) For the purpose of complying with the filing time limit of 300 calendar days, as provided in Subsection A of Section 28-1-10 NMSA 1978, as amended, a complaint which is first filed with any duly authorized civil rights agency holding a work sharing agreement or memorandum of understanding with the bureau shall be deemed to have been filed with the bureau as of the date on which the perfected complaint was first filed with any of these agencies.

(3) When the perfected complaint is received at the bureau office, the person accepting the perfected complaint shall stamp the complaint with the date it is received. An electronically delivered copy of the perfected complaint will be stamped and accepted as filed on the date it is received electronically.

F. Jurisdiction:

(1) At the time of filing, the bureau shall determine initially whether the allegations in the complaint sufficiently state a claim under the act in order to proceed with the investigation. During the investigation, the bureau may also determine, based upon the facts established, whether the bureau has jurisdiction over the complaint.

(2) If at the time of filing or at any subsequent time it is determined that there is a lack of jurisdiction, the complaint shall be dismissed, without prejudice. The complainant shall be promptly notified of the dismissal by certified mail or electronic mail, if elected. The respondent shall be notified of the dismissal by regular mail or electronic mail, if elected.

(3) When a disability or serious medical condition is alleged in the complaint, the complainant must offer evidence of the disability or serious medical condition during the course of the investigation. Evidence documenting a disability or serious medical condition may be provided by the written certification of a physician or other appropriate medical authority unless the existence of the disability or serious medical condition is not a matter in dispute.

G. Notice to respondent: Upon the filing of a perfected complaint, the bureau shall, within 10 calendar days, furnish the respondent with a copy thereof by certified mail or electronic mail, if elected.

H. Electronic Correspondence.

(1) A party can agree, in writing, to receive all correspondence and documents from the bureau through electronic mail, in which case the recipient will not receive any correspondence by US mail. A person communicating with the bureau electronically bears the responsibility of ensuring that the information submitted and the methods by which the person can be contacted are accurate. It is the recipient's obligation to exercise due diligence in checking the email address of record and to notify the bureau of any change in contact information.

(2) A party may rescind the election to receive electronic correspondence at any time by submitting a written request stating that intention to the bureau.

(3) Use of electronic notification, correspondence, and document transmission constitutes reasonable and proper notice for all purposes, laws, rules, and regulations.

I. Withdrawal or dismissal of the complaint and requests to reopen the case.

(1) The complainant may withdraw the complaint by submitting a written request or by completing the form for withdrawal provided by the bureau at any time prior to the issuance of a determination. The complainant may refile a complaint by submitting a new complaint in accordance with Subsection A of 9.1.1.8 through Subsection D of 9.1.1.8 NMAC 1978.

(2) In the event that the complainant cannot be contacted for a 30-day period at the last known address or a forwarding address, or if the complainant refuses to cooperate with the bureau, the complaint may be dismissed without prejudice and the bureau may administratively close the case.

(3) If the bureau administratively closes a case, notice of case closure shall be sent to all parties to their preferred mailing or electronic address of record.

(4) Requests for reopening a case may be submitted to the bureau by sending a written request to include the reason for the request. The complainant must establish good cause to reopen the case. The director shall consider all circumstances relative to the request and determine whether the request is jurisdictional and timely made and whether good cause has been established for reopening the case. The complainant and the respondent will be notified in writing when the director decides whether the case will be reopened.

(5) In the event of a withdrawal or closure of a complaint, the bureau shall promptly notify the respondent of such action, provided that the respondent has been notified of the complaint.

J. Request for director's order of nondetermination:

(1) After the bureau's receipt of a complaint, a complainant who seeks to remove the complaint from the bureau and pursue the complaint in district court may submit a written request, to the director, any time prior to issuance of a determination and shall receive an order of nondetermination. The director may consider requests for orders of nondetermination after the closure of a case if it is determined good cause for the request exists.

(2) The director's order of nondetermination shall be deemed a final order of the bureau for purposes of exhausting administrative remedy, affording the complainant the opportunity to proceed in district court, pursuant to Section 28-1-13 NMSA 1978.

N.M. Admin. Code § 9.1.1.8

9/1/98; Recompiled 10/01/01, Adopted by New Mexico Register, Volume XXVIII, Issue 21, November 14, 2017, eff. 11/14/2017, Adopted by New Mexico Register, Volume XXX, Issue 24, December 31, 2019, eff. 1/1/2020, Amended by New Mexico Register, Volume XXXII, Issue 01, January 12, 2021, eff. 1/12/2021, Amended by New Mexico Register, Volume XXXIV, Issue 19, October 10, 2023, eff. 10/10/2023