May 20, 2013 – Diane Slusser v. Vantage Builders, Inc., No. 31,087

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 20, 2013

NO. 31,087
DIANE SLUSSER,
Plaintiff-A ppellant,
V.
VANTAGE BUILDERS, INC.,
Defendant- Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge
Narvaez Law Finm, P.A.
Martin R. Esquivel
Albuquerque, NM
for Appellant

Rammelkamp, Muehlenweg & Cordova, P.A.
Shan L. Cordova

Albuquerque, NM

for Appellee

OPINION
HANISEE, Judge.
{1} 	Diane Slusser (Plaintiff) appeals the district court’s order of summary judgment
based on the expiration of the statute of limitations and Plaintiff’s failure to meet her
burden of persuasion for an age discrimination claim. Plaintiff argues that the statute
of limitations should not have commenced until she knew or should have known that
a younger person had replaced her as an employee of Vantage Builders, Inc.
(Defendant). In the alternative, Plaintiff contends that the statute should have been
equitably tolled until she knew or should have known she was replaced by a younger
person because Defendant misled her regarding the reason for her termination. We
conclude that the statute began to run upon Plaintiff’s termination, the circumstances
of this case did not require the district court to equitably toll the statute, and
Defendant’s actions were not grounds for applying equitable estoppel. Because the
district court properly concluded that the statute of limitations expired on Plaintiff’s
claim, we affirm.
I. 	BACKGROUND
{2} 	Defendant employed Plaintiff for four years, beginning in 2002. Plaintiff held
a managerial position in Defendant’s accounting department. 	In November 2005,
Plaintiff received her last employee annual review, which indicated that she generally

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met or exceeded company expectations as to her work quality, knowledge of the job,
adherence to policy, and initiative, but fell below expectations with regard to her work
attitude. On February 16, 2006, Defendant terminated Plaintiff’s employment. The
termination letter stated that Defendant was “restructuring the Accounting and
Purchasing Departments. [Plaintiff’s] role as Manager is no longer needed within the
[c]ompany. Effective immediately your position has been eliminated.” Plaintiff was
forty-one years old at the time of her termination.
{3} 	In December 2006, almost ten months following her termination, Plaintiff filed
a federal lawsuit under the Fair Labor Standard Act (FLSA), alleging that Defendant
had improperly classified her as an exempt employee, failing to pay her the overtime
that she had earned. Although that unsuccessful lawsuit is not at issue in this case,
depositions taken during the FLSA suit led Plaintiff to file the complaint associated
with the present appeal. 	Specifically, in the June 2007 deposition of her former
supervisor, Scott Porter, Porter stated that Plaintiff’s termination was performance
related. When asked why the termination letter did not mention Plaintiff’s deficient
performance, Porter stated, “I personally like [Plaintiff] and I did not want to
jeopardize anything as far as her being able to find another job.” From that deposition
and from two ensuing depositions of employees who continued to work for Defendant
after Plaintiff’s departure, Plaintiff learned that a younger woman in her twenties

3
named Karie Trahan, who was paid substantially less than Plaintiff, assumed some of
Plaintiff’s responsibilities after her termination. Plaintiff stated that Trahan “was also
assigned . . . Plaintiff’s position as ‘Assistant Controller’[ and] . . . . had the same roles
and performed the same job” as Plaintiff.
{4} 	On October 15, 2007, twenty months following her termination, Plaintiff filed
a charge of discrimination under the New Mexico Human Rights Act with the Equal
Employment Opportunity Commission (EEOC), alleging:
In February, 2006 I was laid off. On June 26, 2007, I discovered that a
younger female in her [twenties] was placed in my position. . . . 	I
believe that I have been discriminated against because of my age (41 at
the time of the incident) in violation of the Age Discrimination in
Employment Act of 1967. I believe that I have been retaliated against
for complaining.
See NMSA 1978, § 28-1-7(A) (2004) (stating that under New Mexico’s Human
Rights Act, it is an unlawful discriminatory employment practice to discharge a person
based on age); NMSA 1978, § 28-1-10 (2005) (stating the grievance procedure for
Human Rights Act violations); Sabella v. Manor Care, Inc., 1996-NMSC-014, ¶¶ 12-
13, 121 N.M. 596, 915 P.2d 901 (stating that the initial grievance can be filed with
and pursued through either the EEOC or New Mexico Human Rights Division).
Plaintiff’s case subsequently proceeded to district court, where Defendant made the
motion for summary judgment at issue in this appeal, arguing that the claim was time-
barred and asserting that Plaintiff failed to meet her burden of persuasion. The district

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court granted summary judgment on both grounds. Plaintiff now appeals.
II. 	DISCUSSION
{5} 	Plaintiff asserts that the district court erred in granting summary judgment
based on its conclusion that the statute of limitations unequivocally expired 300 days
after Plaintiff was terminated from employment. See § 28-1-10(A) (“All complaints
shall be filed . . . within three hundred days after the alleged act was committed.”).
Plaintiff contends that the statute of limitations should only begin to run when she
knows or should know that the employer’s adverse action was discriminatory. Plaintiff
also argues that the statute of limitations should have been equitably tolled because
Defendant acted in a deceptive manner by concealing the reason for her termination.
{6} 	“In a motion for summary judgment, the party claiming that a statute of
limitation should be tolled has the burden of alleging sufficient facts that if proven
would toll the statute.” 	Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 12, 135
N.M. 539, 91 P.3d 58 (internal quotation marks and citation omitted). “Upon [the
defendant] making [a] prima facie showing [that the statute of limitations ran], the
burden then shifted to claimant, who was required to show at least a reasonable doubt
as to the existence of a genuine factual issue on tolling of the statute.” Hutcherson v.
Dawn Trucking Co., 107 N.M. 358, 360, 758 P.2d 308, 310 (Ct. App. 1988) overruled
on other grounds by Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2013-

5
NMSC-___, ¶ 27, ___ P.3d ___ (No. 33,372, Apr. 11, 2013). “The determination of
whether a claim is timely filed is a question of fact, and only becomes a question of
law when there is no factual dispute.” 	Ocana, 2004-NMSC-018, ¶ 12. “Summary
judgment is appropriate where there are no genuine issues of material fact and the
movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc.,
1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review . . . legal questions
de novo.” Id.
{7} 	At the outset, we clarify three principles at play in Plaintiff’s arguments
regarding the statute of limitations: the discovery rule, equitable tolling, and equitable
estoppel. The discovery rule dictates when the statute of limitations begins to run in
a case. 	Gerke v. Romero, 2010-NMCA-060, ¶ 10, 148 N.M. 367, 237 P.3d 111.
Equitable tolling, on the other hand, operates to suspend the statute of limitations in
situations where circumstances beyond a plaintiff’s control prevented the plaintiff
from filing in a timely manner. 	Ocana, 2004-NMSC-018, ¶ 15. 	Lastly, equitable
estoppel bars a defendant from raising the statute of limitations defense when the
defendant actively prevents the plaintiff from filing within the period of limitation.
Tomlinson v. George, 2005-NMSC-020, ¶ 13, 138 N.M. 34, 116 P.3d 105. 	We
address each of Plaintiff’s arguments in turn within the context of these principles.
A. 	The Statute of Limitations Ran From the Date of the Adverse Employment
Action

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{8} 	Plaintiff first argues that she filed within the statute of limitations because the
statute should have commenced when she knew or should have known that the
termination was motivated by discrimination. “[U]nder the discovery rule, the statute
of limitations begins when the plaintiff acquires [or with reasonable diligence should
have acquired] knowledge of facts, conditions, or circumstances which would cause
a reasonable person to make an inquiry leading to the discovery of the concealed
cause of action.” 	Gerke, 2010-NMCA-060, ¶ 10 (internal quotation marks and
citation omitted); Williams v. Stewart, 2005-NMCA-061, ¶ 12, 137 N.M. 420, 112
P.3d 281 (stating that “[t]he discovery rule provides that the cause of action accrues
when the plaintiff discovers or with reasonable diligence should have discovered that
a claim exists” (internal quotation marks and citation omitted)). 	“The key
consideration under the discovery rule is the factual, not the legal, basis for the cause
of action. The action accrues when the plaintiff knows or should know the relevant
facts, whether or not the plaintiff also knows that these facts are enough to establish
a legal cause of action.” 	Christus St. Vincent Reg’l Med. Ctr. v. Duarte-Afara,
2011-NMCA-112, ¶ 29, 267 P.3d 70 (internal quotation marks and citation omitted),
cert. quashed, 2012-NMCERT-005, 294 P.3d 447. With regard to the discovery rule,
our case law thus plainly differentiates between discovering the existence of predicate
facts to a cause of action and discerning the theory of law under which to proceed.

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{9} 	There are two divergent applications of the discovery rule specific to age
discrimination cases that assign differing value to a plaintiff’s knowledge of his or her
employer’s discriminatory motive. Under the minority rule, “the limitations period
does not start to run until the employee knows or should know that he or she has been
or will be replaced by a person outside the protected age group.” Wheatley v. Am. Tel.
& Tel. Co., 636 N.E.2d 265, 268 (Mass. 1994); see also Henry v. N.J. Dep’t of Human
Servs., 9 A.3d 882, 894 (N.J. 2010) (commencing the statute of limitation for a racial
discrimination claim when employee learned or by reasonable diligence should have
learned that less-qualified Caucasian nurses were hired into advanced positions ). In
embracing the minority position, the Massachusetts Supreme Court relied on its own
statute of limitations case law, and favorably, although in our view incorrectly, cited
several federal cases for support. Wheatley, 636 N.E.2d at 268. These federal cases
did not delay commencement of the discovery rule until the plaintiff’s awareness of
the legal cause of action, the position favored by the minority of courts, but rather
applied equitable principles to toll the statute of limitation under otherwise similar
factual circumstances. See id. (citing Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023,
1025-26 (11th Cir. 1994) (stating that the limitation period runs from the date of the
adverse employment act, but applying equitable modification to toll the statute);
Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 880-82 (5th Cir. 1991)

8
(commencing the statute of limitations when the plaintiff was terminated, but holding
that the employer’s statement that it would consider rehiring worker was a
misstatement that lulled worker into not approaching EEOC sooner and justified
application of principles of equitable modification); Meyer v. Riegel Prods. Corp., 720
F.2d 303, 307-09 (3d Cir. 1983) (stating that the limitation period runs from the date
of the adverse employment act, but applying equitable modification to toll the statute).
{10} 	In contrast, the majority rule followed by some states and most federal courts,
including the Tenth Circuit, requires the applicable statutes of limitation in age-based
employment discrimination cases to run from the date the plaintiff learns of the
adverse employment action. 	See Almond v. Unified Sch. Dist. No. 501, 665 F.3d
1174, 1177 (10th Cir. 2011) (“[A]n employee who discovers, or should have
discovered, the injury (the adverse employment decision) need not be aware of the
unlawful discriminatory intent behind that act for the limitations clock to start
ticking.”); Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 749 (1st Cir. 1994)
(holding that the initial termination letter, not subsequent communications, marked
beginning of limitations period); Sturniolo, 15 F.3d at 1025-26 (commencing the
statute of limitations at the time of the adverse employment action); Rhodes, 927 F.2d
at 880-82 (same); Meyer, 720 F.2d at 307-09 (same); Ching v. Mitre Corp., 921 F.2d
11, 14 (1st Cir. 1990) (cause of action accrues on the happening of an event likely to

9
put plaintiff on notice); Chapman v. Homco, Inc., 886 F.2d 756, 758 (5th Cir. 1989)
(holding that limitations period on employment discrimination claim triggered on date
of discharge, not on date of discovery of discriminatory intent); McConnell v. Gen.
Tel. Co. of Cal., 814 F.2d 1311, 1317 (9th Cir. 1987) (recognizing that statute of
limitations begins to run from the date of the adverse employment action but noting
that it could be tolled by the employer’s active concealment of facts); Ogletree v. Glen
Rose Indep. Sch. Dist., 314 S.W.3d 450, 454-55 (Tex. App. 2010) (stating that the
employment discrimination claim was triggered on date of discharge, not on date of
discovery of discriminatory intent).
{11} 	The rationale behind the majority rule’s commencement of the statute of
limitations on the date the plaintiff discovers the adverse employment action is that
“when an employee knows that he has been hurt and also knows that his employer has
inflicted the injury, it is fair to begin the countdown toward repose . . . [because h]e
knew the stated reason for [the adverse employment action] and could assess its
legitimacy.” 	Morris, 27 F.3d at 750. Like all other causes of action, “the plaintiff
need not know all the facts that support his claim in order for countdown to
commence.” 	Id. 	“To allow plaintiffs to raise employment discrimination claims
whenever they begin to suspect that their employers had illicit motives would
effectively eviscerate the time limits prescribed for filing such complaints.” Pacheco

10
v. Rice, 966 F.2d 904, 906 (5th Cir. 1992). 	The United States Supreme Court has
explained that statutes of limitation “protect employers from the burden of defending
claims arising from employment decisions that are long past.” 	Del. State Coll. v.
Ricks, 449 U.S. 250, 256-57 (1980). Furthermore, equitable principles, as discussed
below, protect plaintiffs when it would be unfair to enforce a statute of limitation
against them. We agree with and adopt the overwhelming use of the majority rule
commencing statutes of limitation in age discrimination cases when a plaintiff knows
or should know of the adverse employment action, regardless of whether the plaintiff
then has or should have knowledge of the employer’s discriminatory intent. Thus, we
reject Plaintiff’s contrary argument and affirm the district court on this ground.
{12} 	Next we assess whether reversal is warranted under the related but distinct
doctrines of equitable tolling and equitable estoppel, which respectively function to
either suspend the statute of limitations or bar a defendant from enforcing a statute of
limitation. 	Sebelius v. Auburn Reg’l Med. Ctr., ___ U.S. ___, 133 S.Ct. 817, 830
(2013) (Sotomayor, J., concurring) (“While equitable tolling extends to circumstances
outside both parties’ control, the related doctrines of equitable estoppel and fraudulent
concealment may bar a defendant from enforcing a statute of limitation when its own
deception prevented a reasonably diligent plaintiff from bringing a timely claim.”).
Notably, equitable tolling ensures that a plaintiff can bring a cause of action when

11
circumstances outside of his or her control unfairly inhibit the plaintiff’s ability to file
in a timely manner. 	Whereas, equitable estoppel penalizes a defendant for
undertaking actions that are purposefully aimed at inhibiting a plaintiff from filing his
or her claim against the defendant in a timely manner.
B. 	Plaintiff Failed to Allege Sufficient Facts to Equitably Toll the Statute
{13} 	New Mexico directly recognizes the distinct legal theory of equitable tolling.
“Equitable tolling is a nonstatutory tolling theory which suspends a limitations
period.” Ocana, 2004-NMSC-018, ¶ 15. We determine the applicability of equitable
tolling on a case-by-case basis, with an eye towards “cases where a litigant was
prevented from filing suit because of an extraordinary event beyond his or her
control.” Id.; see 54 C.J.S. Limitations of Actions § 134 (2013) (explaining equitable
tolling generally).
{14} 	In Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990),
Judge Posner, writing for the Seventh Circuit, provided an outline of the equitable
remedies potentially available to a plaintiff in cases where employment discharge is
allegedly effectuated on an impermissible discriminatory basis and the plaintiff fails
to file in a timely manner. Cada explained that equitable tolling “permits a plaintiff
to avoid the bar of the statute of limitations if despite all due diligence he is unable to
obtain vital information bearing on the existence of his claim.” 	Id. at 451. 	The

12
purpose of equitable tolling is to give “the plaintiff extra time if he needs it. If he
doesn’t need it there is no basis for depriving the defendant of the protection of the
statute of limitations.” 	Id. at 452. 	Notably, equitable tolling “does not assume a
wrongful—or any—effort by the defendant to prevent the plaintiff from suing.” Id.
at 451.
{15} 	The United States Supreme Court has stated that, “where a pattern remains
obscure in the face of a plaintiff’s diligence in seeking to identify it, equitable tolling
may be one answer to the plaintiff’s difficulty[.]” Rotella v. Wood, 528 U.S. 549, 561
(2000). Similarly, the Seventh Circuit explained that equitable tolling applies where
“the plaintiff is assumed to know that he has been injured [by his termination notice],
so that the statute of limitations has begun to run; but he cannot obtain information
necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing
by the defendant.” 	Cada, 920 F.2d at 451; see Sturniolo, 15 F.3d at 1025-26
(remanding for further factual development and stating that “[t]he date when [the
employee] knew or should have known that [the employer] had hired a younger
individual to replace him is the date upon which the tolling period should
commence”).
{16} 	“Generally, a litigant seeking equitable tolling bears the burden of establishing
two elements: (1) that he has been pursuing his rights diligently, and (2) that some

13
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005); see Ocana, 2004-NMSC-018, ¶ 15 (stating that the plaintiff must act
diligently to pursue her rights in order to assert equitable tolling). 	In assessing
diligence, “[t]o determine whether a plaintiff in fact lacked vital information, a court
should ask whether a reasonable person in the plaintiff’s position would have been
aware that he had been fired in possible violation of the [anti-discrimination law].”
Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995) (internal
quotation marks and citation omitted); Chakonas v. City of Chicago, 42 F.3d 1132,
1135 (7th Cir. 1994) (same). “The qualification ‘possible’ is important. If a plaintiff
were entitled to have all the time he needed to be certain his rights had been violated,
the statute of limitations would never run—for even after judgment, there is no
certainty.” Cada, 920 F.2d at 451.
{17} 	Although we can imagine circumstances similar to those in the case at bar
where equitable tolling would be appropriate, we conclude that this equitable doctrine
does not apply here because Plaintiff failed to produce sufficient facts showing that
she has diligently pursued her rights. Ocana, 2004-NMSC-018, ¶¶ 12, 15 (“One who
fails to act diligently cannot invoke equitable principles to excuse that lack of
diligence.” (internal quotation marks and citation omitted)); Stringer v. Dudoich, 92
N.M. 98, 99, 583 P.2d 462, 463 (1978) (stating that the party asserting equitable

14
tolling bears the burden of providing sufficient facts that if proven would toll the
statute). In response to Defendant’s motion for summary judgment, Plaintiff argued
that “testimony from one employee [of Defendant] indicates that [] Trahan assumed
Plaintiff’s duties soon after she left[,] while [testimony from] another employee says
that Trahan assumed some of Plaintiff’s duties, at a significantly lower salary, right
away.” Plaintiff attached excerpts of these depositions from employees Susan Harris
and Judy Montoya to her brief responding to Defendant’s motion for summary
judgment. Harris testified that after Plaintiff was terminated, Trahan appeared to have
taken over some of Plaintiff’s duties. 	Montoya, who was formerly supervised by
Plaintiff, testified that Trahan and Plaintiff had the same role, and that sometime after
Plaintiff’s departure, Trahan became Montoya’s boss. 	Plaintiff stated that this
evidence “contradict[ed] Porter’s testimony and [Defendant]’s assertion that Trahan
was not promoted for [eleven] months after [Plaintiff] was terminated.”
{18} 	Yet despite the fact that Plaintiff asserts evidence of discrimination existed
immediately after her termination, when a younger employee took over at least some
of her responsibilities at the company, Plaintiff never showed that she acted diligently
to discover such evidence and pursue her rights as required to equitably toll a statute.
Even though Plaintiff subjectively lacked such information within the 300 days
following her termination, Plaintiff bore an affirmative duty to diligently investigate

15
her potential Human Rights Act causes of action against her employer. Our Supreme
Court has made it clear that “where a plaintiff fails to receive notice of the right to sue
through 	his 	or 	her 	own 	fault, 	equitable 	tolling 	does 	not 	apply.” 	Ocana,
2004-NMSC-018, ¶ 15. 	At issue in the motion for summary judgment is whether
Plaintiff objectively should have known information necessary to decide whether the
injury was due to Defendant’s wrongdoing and whether she properly asserted factual
evidence regarding her exercise of due diligence.
{19} 	As we stated above, “[i]n a motion for summary judgment, the party claiming
that a statute of limitation should be tolled has the burden of alleging sufficient facts
that if proven would toll the statute.” Id. ¶ 12 (internal quotation marks and citation
omitted). Here, Plaintiff failed to assert and support with facts that the circumstances
were such that she should not have known about Trahan taking over her duties, even
with reasonable diligence in investigating the basis of her termination. Instead, in her
response opposing the motion for summary judgment, Plaintiff produced facts
indicating that evidence existed well within the statute of limitations that could have
supported her claim for age discrimination. 	In that same response, Plaintiff never
asserted or produced factual evidence pertaining to why she could not obtain such
evidence of discrimination within the first 300 days of her termination, or assertions
regarding the efforts she undertook, if any, to diligently pursue her rights prior to the

16
depositions taken in excess of a year following her termination. 	Instead, Plaintiff
asserted that the information regarding Trahan taking over her responsibilities “did not
come to light until . . . Porter’s June 27, 2007 deposition[,]” and therefore the statute
of limitations should be tolled. But Plaintiff does not describe the manner in which
she in fact pursued her claim in the seventeen months following her termination and
prior to the taking of Porter’s deposition.
{20} 	To provide the district court with a basis to apply equitable tolling in this case,
Plaintiff must show that she was unable to discover the facts constituting Defendant’s
discriminatory intent, despite her diligence to assert her rights. 	See Wall v. Nat’l
Broad. Co., 768 F. Supp. 470, 476 (S.D.N.Y. 1991) (stating that summary judgment
appropriate when the plaintiff has “failed to set forth evidence demonstrating that he
could not have discovered the alleged discriminatory act at an earlier date in the
exercise of reasonable diligence”). Where the “[p]laintiffs have offered no facts . . .
to explain why they did not earlier discover the defendant’s employment practices at
some earlier time[, t]his court is inclined to believe that such facts should be
forthcoming in order to satisfy the due diligence requirement of equitable tolling.”
Allen v. Diebold, Inc., 807 F. Supp. 1308, 1317 (N.D. Ohio 1992). Neither Plaintiff’s
complaint nor her response to Defendant’s motion for summary judgment asserted
facts regarding the nature of her efforts and diligence prior to discovering the cause

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of action. 	See Auguste v. N.Y. Presbyterian Med. Ctr., 593 F. Supp.2d 659, 667
(S.D.N.Y. 2009) (stating that equitable tolling is inapplicable because “allegations [of
trickery by the defendant who offered the plaintiff an interview after her termination]
are insufficient to merit the application of the equitable tolling doctrine[,]” and that
the plaintiff “has not demonstrated that she exercised reasonable diligence in pursuing
her discrimination claim”); see also Allen, 807 F. Supp. at 1317 (concluding that
where the plaintiffs offered no facts to show diligence, equitable tolling does not apply
even if the plaintiffs were only informed a year after termination that the defendant
company had hired younger individuals to replace them).
{21} 	We therefore conclude that the district court did not err in granting summary
judgment on the ground that the statute of limitations ran because Plaintiff failed to
meet her burden of alleging sufficient facts to toll the statute of limitations.
C. 	Equitable Estoppel Does Not Apply Under These Facts
{22} 	Lastly, to the extent that Plaintiff’s contentions regarding the inconsistently
asserted reasons Defendant provided for her termination could be construed as an
equitable estoppel argument, we conclude that equitable estoppel is inapplicable here.
Under the theory of equitable estoppel, “a party may be estopped from asserting a
statute-of-limitations defense if that party’s conduct has caused the plaintiff to refrain
from filing an action until after the limitations period has expired.” In re Drummond,

18
1997-NMCA-094, ¶ 13, 123 N.M. 727, 945 P.2d 457. 	“The [equitable estoppel]
theory is premised on the notion that the one who has prevented the plaintiff from
bringing suit within the statutory period should be estopped from asserting the statute
of limitation as a defense.” 	Tomlinson, 2005-NMSC-020, ¶ 13 (internal quotation
marks and citation omitted); Cont’l Potash, Inc. v. Freeport-McMoran, Inc., 115 N.M.
690, 697, 858 P.2d 66, 73 (1993) (“Estoppel precludes one party from asserting a right
when another party has relied to his detriment upon the acts or conduct of the first
party and when asserting that right would prejudice the other who has acted thereon
in reliance.”).
Under the doctrine of equitable estoppel, the party estopped from
asserting a statute of limitations must have (1) made a statement or
action that amounted to a false representation or concealment of material
facts, or intended to convey facts that are inconsistent with those a party
subsequently attempts to assert, with (2) the intent to deceive the other
party, and (3) knowledge of the real facts other than conveyed. 	The
party arguing estoppel must (1) not know the real facts, and (2) change
his or her position in reliance on the estopped party’s representations.
Blea v. Fields, 2005-NMSC-029, ¶ 20, 138 N.M. 348, 120 P.3d 430; Vill. of Angel
Fire v. Bd. of Cnty. Comm’rs of Colfax Cnty., 2010-NMCA-038, ¶ 21, 148 N.M. 804,
242 P.3d 371 (same). 	Our courts also apply equitable estoppel in cases where the
defendant fraudulently conceals the cause of action from the plaintiff. Beneficial Fin.
Co. of N.M. v. Alarcon, 112 N.M. 420, 425, 816 P.2d 489, 494 (1991). 	“When a
litigant is relying on fraudulent concealment or estoppel to toll the running of a statute

19
of limitations, the statute is tolled until the right of action is discovered or, by the
exercise of ordinary diligence, could have been discovered.” Bolton v. Bd. of Cnty.
Comm’rs, 119 N.M. 355, 369, 890 P.2d 808, 822 (Ct. App. 1994).
{23} 	Here, Plaintiff argues that Defendant fraudulently concealed the cause of action
by stating that Plaintiff was terminated because the company was restructuring the
accounting department. The Seventh Circuit’s discussion in Cada, which rejected a
similar argument, is also helpful to our assessment of the applicability of equitable
estoppel. 	920 F.2d at 450-51. 	In Cada, the plaintiff argued that the defendant’s
reorganization of his department was a ruse to conceal the plan to fire him because of
his age. Id. In rejecting this argument, the court explained how active concealment
for purposes of estoppel differs from events giving rise to the underlying cause of
action. Id. at 451. The court concluded that:
This [argument] merges the substantive wrong with the [equitable
estoppel] doctrine, ignoring [the] distinction between [the] two types of
fraud. 	It implies that a defendant is guilty of fraudulent concealment
unless it tells the plaintiff, “We’re firing you because of your age.” It
would eliminate the statute of limitations in age discrimination cases.
Id.
{24} 	Similarly, in this case, Defendant’s statement that Plaintiff was terminated
because of the company’s reorganization did not constitute active steps, independent
of the underlying allegedly tortious conduct, to prevent the plaintiff from filing her

20
age discrimination claim on time. 	Simply because Porter provided two different
reasons for Plaintiff’s termination in and of itself fails to indicate or establish that the
termination was instead motivated by age discrimination. To conclude that such an
inconsistency constitutes fraudulent concealment of discriminatory intent would
effectuate a practically limitless extension of the New Mexico Human Rights Act’s
statute of limitations, the very untenable result identified by the Seventh Circuit.
Thus, although New Mexico law provides for the application of equitable estoppel in
appropriate circumstances, we conclude that the district court’s decision not to apply
it under the facts of this case was proper.
III. 	CONCLUSION
{25} 	Because the statute of limitations is dispositive, we do not address the district
court’s application of the new and harsher standards of proof recently adopted and
implemented by the United States Supreme Court in federal age discrimination claims
to claims brought pursuant to the New Mexico Human Rights Act. Compare Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (establishing for the first time in
federal age discrimination cases that the plaintiff must prove that age was the
“but-for” cause of the employer’s adverse decision, and eliminating the shifting of the
burden of persuasion to the employer to show that it would have taken the action
regardless of age, even when plaintiff has produced some evidence that age was one

21
motivating factor in that decision), with Cates v. Regents of the N.M. Inst. of Mining
& Tech.,1998-NMSC-002, ¶ 17, 124 N.M. 633, 954 P.2d 65 (applying burden shifting
rules derived from earlier federal age discrimination cases to age discrimination
claims under New Mexico’s Human Rights Act; stating that once the plaintiff
establishes a prima facie case of age discrimination, the burden shifts to the employer
to show a legitimate nondiscriminatory reason for its decision; and explaining that if
a legitimate, nondiscriminatory reason is produced by the employer, the burden shifts
to the plaintiff either to show direct evidence of age discrimination or to prove that the
employer’s reasons for dismissal were pretext for age discrimination). While we leave
for another day the decision regarding the application of the Cates method of proof
in light of Gross, we affirm the district court because the statute of limitations
commenced at the time of the adverse employment action, was not delayed,
interrupted, or rendered unavailable to Defendant by equitable tolling or equitable
estoppel, and therefore expired prior to the filing of Plaintiff’s lawsuit.
{26} 	IT IS SO ORDERED.
________________________
J. MILES HANISEE, Judge
WE CONCUR:

JAMES J. WECHSLER, Judge

LINDA M. VANZI, Judge

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