Before the Court en banc. Opinion by Cherry.
In this appeal from a petition for judicial review of a decision of the Employee-Management Relations Board (the “Board”), the Court held that the doctrine of equitable tolling applies to NRS 288.110(4)’s six month limitations period in which an employee must make a complaint to the Board. The Court adopted the federal approach to treating the similar federal rule, specifically adopting the “unequivocal notice” rule – which states that the six month limitations period begins to run when the employee receives “unequivocal notice of a final adverse decision” – and applying the doctrine of equitable tolling to the period as it would to any statute of limitations period. Because the employee in this case diligently pursued his claims after discovering his employer’s allegedly discriminatory treatment of him, the Board properly tolled the limitations period and allowed the claims to go forward. In looking at the merits of the Board’s decision regarding Appellant’s claim of gender discrimination, the Court specifically adopted the Second and Seventh Circuits’ test for determining whether two employees are similarly situated: a court should compare several factors including “(1) whether the employees were subject to the same performance evaluation standards; (2) whether the employees engaged in comparable conduct; (3) whether the employees dealt with the same supervisor; (4) whether the employees were subject to the same disciplinary standards; and (5) whether the employees had comparable experience, education, and qualifications, if the employer took these factors into account in making its decision.” The Court further ruled that the determination of whether employees are similarly situated is a factual finding entitled to deference on appellate review. Petition for judicial review denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
