Luboyeski v. Hill

• Citation: 872 P.2d 353,1994 NMSC 32,117 N.M. 380
• Decision Date: 21 March 1994
• Docket Number: No. 20909,20909
• Court: Supreme Court of New Mexico
• Parties: , 64 Fair Empl.Prac.Cas. (BNA) 772, 90 Ed. Law Rep. 1221 Lynn LUBOYESKI, Plaintiff-Appellant, v. Kermit HILL, Steve Dilg, Eleanor Ortiz, and The Santa Fe Public School System, Defendants-Appellees.

Page 353

872 P.2d 353

117 N.M. 380, 64 Fair Empl.Prac.Cas. (BNA) 772,

90 Ed. Law Rep. 1221

Lynn LUBOYESKI, Plaintiff-Appellant, v. Kermit HILL, Steve Dilg, Eleanor Ortiz, and The Santa Fe

Public School System, Defendants-Appellees.

No. 20909.

Supreme Court of New Mexico.

March 21, 1994.

Rehearing Denied March 31, 1994.

Joseph A. Roberts, Santa Fe, for plaintiff-appellant.

White, Koch, Kelly & McCarthy, P.A., W. Booker Kelly, Santa Fe, for defendants-appellees.

OPINION

MONTGOMERY, Chief Justice.

This case involves, primarily, the question whether the New Mexico Tort Claims Act overrides or supersedes the New Mexico Human Rights Act, so as to shield a governmental entity from liability that would otherwise flow from a discriminatory practice proscribed by the latter Act. We hold that it does not.

The case arises from an appeal by Lynn Luboyeski from a determination of "no probable cause" by the Human Rights Division of the New Mexico Department of Labor ("the Division"). In the appeal she named as defendants not only the Santa Fe Public School System (i.e., the school board), which had been the respondent before the Division, but also Kermit Hill, Steve Dilg, and Eleanor Ortiz ("the individual defendants"), who had not been named in the proceeding before the Division. The defendants filed a joint motion to dismiss the individual defendants on the ground that they had not been named in the administrative action and thus could not be added on appeal, and to dismiss all of the defendants on the ground that they were immune from liability under the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.Pamp.1989).¹ The trial court granted the motion, and Luboyeski appeals. We affirm the trial court's order as to the individual defendants and reverse as to the School System.

I.

On August 21, 1990, Luboyeski filed a complaint with the Division, naming the School System as respondent and claiming that Kermit Hill, another teacher at the school where Luboyeski taught, had touched and made advances toward her in sexually inappropriate ways. She also alleged that Dilg, the principal, and Ortiz, the vice-principal, did not take appropriate action against Hill in response to her complaints and a written grievance she had filed and that they further exacerbated her discomfort by assigning her to the same teaching group as Hill. Luboyeski claimed that as a result of these actions she was constructively discharged and had to seek therapy. In September 1991, the Division made a determination of "no probable cause," which Luboyeski appealed in October 1991 by filing a complaint in district court pursuant to Section 28-1-13 of the Human Rights Act, NMSA 1978, Sections 28-1-1 to -15 (Repl.Pamp.1991).²

As noted above, Luboyeski's district court complaint named the School System as a defendant, as well as the individual defendants who had not been parties to the proceeding before the Division. In June 1992, the defendants filed a joint motion to dismiss, contending that parties not named as defendants in an administrative action could not be added on the appeal of that action and that all of the defendants were immune under the Tort Claims Act. The trial court granted the motion by an order entered on August 28, 1992, which order did not reserve any part of the case for further determination. On September 28, 1992, Luboyeski filed a motion for an extension of time to file a notice of appeal. The court granted the motion and extended the deadline for taking an appeal to October 28, 1992. On October 27, 1992, Luboyeski filed her notice of appeal.

Before the trial court's order of dismissal on August 28, Luboyeski filed a motion on August 21 to amend her complaint to add a claim under 42 U.S.C. Sec. 1983, which, despite the notice of appeal filed on October 27, the trial court granted in an order entered on December 1, 1992. In that order the trial court stated that the August 28 order of dismissal was with prejudice as to defendant Hill but without prejudice as to the other defendants. We hold that the December 1 order had no effect on the August 28 order and that the August 28 order was a final, appealable order--which we affirm as to the individual defendants but reverse as to the School System.

II.

Although this issue was not raised in the briefs and was not a subject of disagreement between the parties at oral argument, we clarify that the August 28, 1992, order dismissing all of the defendants to the action was a final, appealable order. On September 28, 1992, Luboyeski filed a motion for extension of time to file her notice of appeal, which motion was granted, extending the appeal deadline to October 28, 1992. On October 27 she timely filed a notice of appeal. Although on December 1, 1992, the trial court granted her motion (filed on August 21) for leave to amend her complaint, her timely appeal on October 27 divested the trial court of jurisdiction to grant the motion to amend. See Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 241, 824 P.2d 1033, 1043 (1992) (pending appeal divests trial court of jurisdiction to take further action which would affect judgment on appeal); Corbin v. State Farm Ins. Co., 109 N.M. 589, 592, 788 P.2d 345, 348 (1990) (trial court acted outside its jurisdiction in granting motion to amend complaint after notice of appeal had been filed). Consequently, the December 1 order was of no effect and did not render the August 28 order a nonfinal order. This determination comports with the position taken by both sides at oral argument.

III.

The individual defendants were not named as respondents in the proceeding before the Division and were only added as defendants on Luboyeski's appeal to the district court. There is New Mexico law to support the defendants' position that parties who have not been parties to an administrative proceeding should not be added on appellate review of that proceeding. See Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Bd., 80 N.M. 633, 640, 459 P.2d 159, 166 (Ct.App.1969) ("In the usual case or lawsuit which reaches this court for appellate review, the parties before this court must have appeared as litigants in the court below, and the record must so show. The same is true of the usual appeal from a decision or order of an administrative agency."). However, our determination of this issue turns primarily on the fact that Luboyeski had not exhausted her administrative remedies with regard to the individual defendants. With respect to all counts in her complaint in the trial court, Luboyeski asserted that "the jurisdiction of this Court is invoked pursuant to Sec. 28-1-13, NMSA, 1978." However, individual defendants cannot be sued in district court under the Human Rights Act unless and until the complainant exhausts her administrative remedies against them. In Jaramillo v. J.C. Penney Co., 102 N.M. 272, 694 P.2d 528 (Ct.App.1985), our Court of Appeals held that compliance with the grievance procedure in the Human Rights Act is a prerequisite to suit in district court under the Act: "The comprehensive nature of the Act supports the conclusion that the legislature intended that the grievance procedure is mandatory when unlawful discriminatory practices are alleged." Id. at 273, 694 P.2d at 529. See also Phifer v. Herbert, 115 N.M. 135, 138, 848 P.2d 5, 8 (Ct.App.1993) ("Compliance with the grievance procedure of the [Human Rights Act] is a prerequisite to suit under this Act."). We do not comment on whether the Human Rights Act provides an exclusive remedy; we simply agree with the holdings of Jaramillo and Phifer that when a defendant is sued under the Human Rights Act the plaintiff must exhaust her or his administrative remedies before bringing an action in district court. See Sec. 28-1-13(A) ("Any person aggrieved by an order of the commission may obtain a trial de novo in the district court of the county where the discriminatory practice occurred[.]") (Emphasis added.) Since Luboyeski has not gone through the administrative process that is prerequisite to suing the individual defendants under the Human Rights Act, we affirm the trial court's order dismissing those defendants.

IV.

We turn now to the argument, vigorously asserted by the School System, that the Tort Claims Act "overrode" the Human Rights Act, with the result that the School System was immune from liability because no provision in the Tort Claims Act waives the immunity otherwise granted public entities by that Act. See Sec. 41-4-4(A) (granting immunity to "[a] governmental entity and any public employee while acting within the scope of duty" for any tort except those for which immunity is waived in Secs. 41-4-5 through 41-4-12). As is well known in this state, the Tort Claims Act was enacted in 1976, 1976 N.M. Laws, ch. 58, Secs. 1-19, in response to this Court's abrogation of sovereign immunity in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), order and opinion on rehearing, 88 N.M. 593, 544 P.2d 1158 (1976). The Act includes an exclusive-remedy provision, stating that:

The Tort Claims Act ... shall be the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim.

Section 41-4-17(A). The Act has contained a similar exclusive-remedy provision since its inception. See 1976 N.M. Laws, ch. 58, Sec. 15(A). The areas for which immunity is waived in the Tort Claims Act are quite specific. See, e.g., Secs. 41-4-6 (waiver of immunity for negligence of public employees acting within scope of employment in operation or maintenance of buildings, public parks, machines, or equipment), 41-4-7 (operation of airports), 41-4-9 (medical facilities),...