Ocana v. American Furniture Co.

• Decision Date: 17 May 2004
• Docket Number: No. 26,955.,26,955.
• Parties: Levinia OCANA, Plaintiff-Appellant, v. AMERICAN FURNITURE COMPANY and Thomas Kaminski, Defendants-Appellees.
• Court: New Mexico Supreme Court

91 P.3d 58

135 N.M. 539

2004 NMSC 18

Levinia OCANA, Plaintiff-Appellant, v. AMERICAN FURNITURE COMPANY and Thomas Kaminski, Defendants-Appellees.

No. 26,955.

Supreme Court of New Mexico.

May 17, 2004.

Rehearing Denied May 20, 2004.

David Henderson, Catherine Downing, Downing & Henderson, P.C., Santa Fe, NM, for Plaintiff.

Patrick D. Allen, Yenson, Lynn, Allen & Wosick, P.C., Santa Fe, NM, for Defendant American Furniture.

Michael Danoff, Santa Fe, NM, for Defendant Thomas Kaminski.

OPINION

MAES, Chief Justice.

{1} On Plaintiff's motion for rehearing, the opinion previously filed in this matter on April 8, 2004, is hereby withdrawn and the following substituted in its place. The motion for rehearing is otherwise denied.

{2} Plaintiff-Appellant Levinia Ocana appeals the district court's granting of summary judgment in favor of Defendants-Appellees American Home Furnishings (American) and Thomas Kaminski on all counts of her complaint. We have jurisdiction by virtue of NMSA 1978, § 28-1-13(C) (1987) (providing for direct appeal to the Supreme Court under the Human Rights Act). We affirm in part, reverse in part, and remand for further proceedings.

FACTS

{3} Levinia Ocana was employed at American's Santa Fe store from July 1997 through November 1998. On December 10, 1998, Ocana filed an employment discrimination complaint with the New Mexico Department of Labor Human Rights Division against American, in which she charged American with unlawful sexual discrimination and retaliation. The Division forwarded a copy of her complaint to the Equal Employment Opportunity Commission ("EEOC") for investigation of federal employment violations. While her complaint was being investigated by the agencies, she hired an attorney who was experienced in litigating employment discrimination claims to represent her. Her attorney was familiar with the administrative procedures of both agencies. Her attorney filed an entry of appearance with the Division, but he did not file an entry of appearance with the EEOC. Normally, the Division places a complainant's attorney on its mail distribution list once the attorney files an entry of appearance with the Division. Apparently, it is from this list that the EEOC learns of an attorney's appearance in a case. Her attorney assumed that the EEOC would learn of his appearance in the case through this process. The Division wrote to her attorney shortly after his entry of appearance was filed. In the letter the Division admitted receiving his entry of appearance and included American's answer to Ocana's complaint. Her attorney subsequently filed a response to American's answer with the Division.

{4} On July 27, 1999, the Division issued a no-probable-cause letter to Ocana. In the letter the Division informed Ocana that it was dismissing her complaint because it had found insufficient evidence to support her employment discrimination charges. The Division further informed her that she had 30 days to appeal the decision to state district court. The Division sent her letter via certified mail to the address that she had listed on her complaint. She did not receive this letter, however, because she had moved during this time and had left no forwarding address with postal authorities. In addition, neither she nor her attorney had informed either agency of her change in address. Instead, she assumed that all correspondence would be sent to her attorney. However, because the Division had neglected to place her attorney on its mail distribution list, no letter was sent to him.

{5} On August 16, 1999, the EEOC issued a right-to-sue letter to Ocana. The EEOC informed her in the letter that it was adopting the Division's findings and was dismissing her complaint. The EEOC mailed the letter to her at the address listed on her complaint. The letter was returned to the EEOC on September 9, 1999, with the notation, "moved, left no address." Copies of the letter were apparently mailed to the individuals that were listed on the Division's mail distribution list. However, no letter was sent to her attorney because he was not put on the Division's mail distribution list.

{6} On the one-year anniversary of the complaint's filing with the Division, her attorney contacted the Division to check on the complaint's status. Apparently, his decision to contact the Division at this time was based on his knowledge of the New Mexico Human Rights Act ("NMHRA"), NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 1993, prior to 1995, 2000, & 2001 amendments), and its requirement that the Division must act on a complaint within a year of its filing. See § 28-1-10(G) (1995, repealed effective July 1, 2006) (requiring the Division to dismiss complaint for lack of probable cause, achieve satisfactory adjustment of the complaint, or file a formal complaint on behalf of the commission within a year of a complaint's filing). Her attorney learned of the no-probable-cause letter, a copy of which was faxed to him later that day. According to her attorney, the Division agreed at this time that the time for filing Ocana's appeal to state district court "would begin to run on December 10, 1999." Her attorney then contacted the EEOC and learned of the right-to-sue letter. The EEOC mailed him a copy of the right-to-sue letter, which he received on January 4, 2000. His representation of Ocana ended a short time later.

{7} On January 10, 2000, Ocana, acting pro se, filed an eight-count complaint in state district court against American and Kaminski, the general manager of the store where she had worked. She charged American with hostile work environment, sexual harassment and retaliation in violation of both the NMHRA and Title VII, 42 U.S.C. §§ 2000e et seq. (1994). She also charged American with negligent supervision and retention. She charged Kaminski with sexual assault, battery, and intentional infliction of emotional distress ("IIED"). She filed the same charges against American under a vicarious liability theory.

{8} Several months later, American moved for summary judgment on all counts, while Kaminski moved for summary judgment on some of the counts. In its motion, American asserted that Ocana's sexual harassment and retaliation claims under the NMHRA and Title VII were time barred. American also asserted that it could not be vicariously liable on her sexual harassment claims because it "had a policy in place prohibiting sexual harassment, Ms. Ocana never complained to a manager at American regarding Mr. Kaminski's supposed harassment, and even if Mr. Kaminski harassed Ms. Ocana ... [he] could not have been acting in the scope of his employment." On the retaliation claims, American asserted that Ocana had also failed to present a prima facie case and that it had shown a legitimate business reason for her termination. On the negligent supervision and retention claim, American asserted that Ocana had failed to present a prima facie case. On the common-law claims, American asserted that Ocana had failed to present a prima facie case and that it could not be vicariously liable for Kaminski's alleged acts as a matter of law.

{9} Kaminski, on the other hand, moved for summary judgment only on the sexual harassment and retaliation claims. Like American, he stated that these claims were time barred. On the retaliation claims, he further stated that Ocana had also failed to present a prima facie case and that American had shown a legitimate business reason for her termination. He did not move for summary judgment on the common-law claims, admitting that there was a "factual dispute between the parties" on these claims.

{10} Ocana filed a response to American's and Kaminski's summary judgment motions, where she asserted that summary judgment should not be granted because there were triable issues of material fact on all counts. In the meantime, she filed a separate motion to compel discovery from American. The district court, granting the motion in part, ordered American to disclose any sexual harassment lawsuits filed against Kaminski during his employment with American; to disclose all formal sexual harassment complaints against other employees of American's Santa Fe store for the one year period before April 1998 and the one year period after November 1999; to produce the sales rankings of all salespersons working in Ocana's department during her employment; and to produce the employment file for two particular employees. Before discovery could be completed, however, the district court granted summary judgment to American and Kaminski on all counts. The district court listed several reasons for its decision: there was no evidence corroborating Ocana's claims of sexual harassment; there were no witnesses and no evidence that she complained about the harassment until after she was fired; she had been disciplined for as many as 14 major mistakes; she had testified in depositions that her supervisor (Robin Fischman) disliked her and had selected her for the reprimands; the witness whom she said she had complained to denied this fact in depositions; both the Division and the EEOC found no evidence supporting her claims; her NMHRA and Title VII claims were untimely filed and the time limits were not tolled; and in her response to the summary judgment motion, she said Kaminski had written her up 14 times, but this was not true because there was only one complaint that bore his signature and it was a countersignature to Fischman's signature.

{11} On appeal, Ocana argues that summary judgment in favor of American and Kaminski on all counts was improper because:(1) there was a genuine issue of fact as to whether the time limitations for filing her sexual harassment and retaliation claims under the NMHRA and Title VII were tolled; (2) there was evidence supporting her sexual harassment claims and American's vicarious liability on these claims; (3) Kaminski admitted that there was a factual dispute to the common-law claims; (4)...