from the Iowa District Court for Polk County, Douglas F.
administrative law judge requests interlocutory review of the
district court's dismissal of his failure-to-hire claim.
Bullock and Jill Zwagerman of Newkirk Zwagerman, P.L.C., Des
Moines, and Nathaniel R. Boulton of Hedberg & Boulton,
P.C., Des Moines, for appellant.
J. Miller, Attorney General, and David L.D. Faith II and
Jeffrey C. Peterzalek, Assistant Attorneys General, for
interlocutory appeal, Marlon Mormann, an applicant for the
position of Deputy Workers' Compensation Commissioner at
Iowa Workforce Development (IWD) calls upon us to determine
whether the statutory requirement that complaints be filed
with the Iowa Civil Rights Commission (ICRC) within 300 days
of the discriminatory act may be tolled through application
of the discovery rule or equitable estoppel. See
Iowa Code § 216.15(13) (2015). If we determine these
equitable tolling doctrines are available, Mormann asks us to
find that he is entitled to avoid strict application of the
300-day filing requirement.
district court granted IWD's motion to dismiss
Mormann's failure-to-hire claim. The court assumed
equitable doctrines could apply to the 300-day filing
requirement in the Iowa Civil Rights Act (ICRA) but concluded
Mormann could not escape the filing limitation through
application of the discovery rule or equitable estoppel. The
court did not dismiss a constructive discharge claim brought
by Mormann related to his departure from IWD on January 5,
2015, finding this claim was filed within the 300-day filing
filed an application for interlocutory review, which we
granted. For the reasons expressed below, we hold the
equitable tolling doctrines of the discovery rule and
equitable estoppel are available with respect to the 300-day
filing limitation in the ICRA. We further hold, however, that
Mormann is not entitled to toll the 300-day filing limitation
through application of either the discovery rule or equitable
estoppel. As a result, we affirm the decision of the district
I. Factual and Procedural Background.
Factual Background to Failure-to-Hire Claim.
Introduction. Mormann worked for IWD from 1990 to
2015. During this period of time, he held a number of
positions, including deputy workers' compensation
commissioner. He also served as an administrative law judge
in the workers' compensation division of IWD. At all
times relevant to this case, Mormann was an administrative
law judge in the unemployment insurance division of IWD.
Application for position of deputy workers'
compensation commissioner. In January 2014, Mormann
applied for an open deputy workers' compensation
commissioner position. Workers' Compensation Commissioner
Christopher Godfrey chaired a hiring committee that
interviewed and evaluated candidates. On February 19, Godfrey
sent an email to Teresa Wahlert, the Director of IWD. In the
email, Godfrey advised Wahlert that Erin Pals was the
committee's top candidate.
explained to Wahlert why the committee favored Pals over
Mormann. Godfrey noted Pals did not have as much experience
as Mormann. Godfrey, however, told Wahlert that Mormann was
not the top candidate because his resume and cover letter
were brief; because of concerns that Mormann would not have a
practitioner's perspective; because his past work for the
division, though prompt, was sometimes short on analysis; and
because after leaving his prior position of deputy
workers' compensation commissioner he had not been active
in the workers' compensation community. If Pals declined
the position, however, Godfrey recommended the position be
offered to Mormann.
March 7, Godfrey sent Mormann a letter informing him that he
had not been selected for the position. Godfrey told Mormann,
I am writing to regretfully inform you that we have decided
on an alternate candidate to fill the position of Deputy
Workers' Compensation Commissioner. The decision was a
difficult decision and as I mentioned before, you were one of
the finalists for the position. You are clearly qualified for
a Deputy Commissioner's position and I am certain that
you would be a terrific addition to our staff. I encourage
you to submit your application for future openings with the
Division of Workers' Compensation, if you remain
interested in our division.
Deposition of Wahlert in the Godfrey matter related to
failure to hire Mormann. On September 17, Wahlert gave a
deposition in an unrelated case brought by Godfrey. Wahlert
was asked a series of questions regarding the failure of IWD
to offer the deputy commissioner position to Mormann. Wahlert
stated that she did not agree with Godfrey's
recommendation that if Pals declined the job, the position
should be offered to Mormann. Wahlert testified, however,
that "[they] never had to have that discussion"
about her disagreement with the recommendation because
"it really wasn't important unless [they] got to the
point where [Godfrey] wanted to offer the job [to
Mormann]." Wahlert further testified, "So, I never
stated what my opinions were at that time." When asked
to explain the basis for her disagreement with the
recommendation that the position be offered to Mormann if
Pals declined, Wahlert cited
statements that [Mormann] had made to people and during his
interview that he thought he was going to retire. And so I
was concerned that training and time would be invested and
that perhaps more of a conversation needed to be had to be
sure that the investment was appropriate for the long-term.
Wahlert's September 2014 deposition was originally taken
under seal. It became public, however, on March 18, 2015.
Mormann's complaint with the ICRC. On May 4,
Mormann filed a complaint with the ICRC. In his complaint,
Mormann stated he was born in November 1956, making him
fifty-seven years old at the time of his application for the
deputy workers' compensation commissioner position.
Mormann challenged the decision of IWD and Wahlert not to
hire him for the position.
Code section 216.15(13) states that "a claim . . . shall
not be maintained unless a complaint is filed with the
commission within three hundred days after the alleged
discriminatory or unfair practice occurred." Mormann
recognized his complaint was filed more than 300 days after
he received notice of the decision to hire another person as
deputy workers' compensation commissioner. Mormann,
however, noted the ICRA authorized the ICRC to establish
rules, and the ICRC had adopted Iowa Administrative Code rule
161-3.3(3) pursuant to its rulemaking authority. This rule
By law the filing period described in subrule 3.3(1) and in
Iowa Code subsection 216.15[(13)] is subject to waiver,
estoppel, and equitable tolling. Whether the filing period
shall be equitably tolled in favor of a complainant depends
upon the facts and circumstances of the particular case.
Equitable tolling suspends the running of the filing period
during the period of time in which the grounds for equitable
Iowa Admin. Code r. 161-3.3(3).
argued he had no way to discover the age discrimination until
after a district court "gag order" was lifted on
March 18, 2015. Mormann claimed in his civil rights complaint
that Wahlert intervened in the hiring decision but initially
refused to explain the reason for rejecting Mormann for the
position. Mormann, however, asserted Wahlert cited the fact
that Mormann was too close to retirement as a basis for the
decision. Wahlert did not advise Godfrey of her view on
Mormann because it was not important unless it got to the
point where Godfrey wanted to hire Mormann for the job. Given
these facts, Mormann claimed the true reason he was not
considered did not come out until Wahlert's deposition
was released on March 18.
attached exhibits to his complaint: (1) a news article dated
March 18, 2015, stating that the depositions in the Godfrey
matter were released; (2) a partial transcript of
Wahlert's deposition; (3) a partial transcript of
Governor Terry Branstad's deposition in the Godfrey
matter; (4) the March 7, 2014 letter from Godfrey stating
Mormann was not hired for the position of deputy commissioner
but praising Mormann's qualifications and urging him to
apply if other positions become available; and (5) the
February 19 email from Godfrey to Wahlert explaining the
search committee's recommendation of Pals over Mormann
for the deputy workers' compensation commissioner
complaint, Mormann sought reinstatement, back pay, front pay,
attorneys' fees, and damages for outrageous conduct.
Mormann obtained a right-to-sue letter from the ICRC and
filed an action in district court on March 28, 2016.
District Court Proceedings.
Overview of petition. Mormann's district court
petition alleged age discrimination in connection with the
failure of IWD to offer him the deputy workers'
compensation commissioner position. He alleged that since 1990,
he had been employed as a deputy workers' compensation
commissioner or as an administrative law judge. At the time
he was denied the job as deputy workers' compensation
commissioner, Mormann alleged he was employed as an
administrative law judge in the unemployment appeals bureau
of IWD. According to Mormann, however, he had held the
position of deputy workers' compensation commissioner
alleged the position of deputy workers' compensation
commissioner was given to "a younger candidate who had
no prior experience in the role." He asserted Wahlert
"not only influenced, but was directly involved in
making hiring decisions" related to the deputy
workers' compensation commissioner position.
alleged the "real reason" he was denied the
position surfaced only with the public release of
Wahlert's deposition on March 18, 2015. Prior to that
date, according to Mormann, the deposition of Wahlert was
subject to a "gag order" placed on participants in
the hiring process which "Wahlert employed regarding the
Deputy Workers' Compensation Commissioner position."
According to Mormann, the "Defendant's actions were
done with the intent to prevent [the] Plaintiff from learning
the reasons why he was not chosen for the Deputy Workers'
Compensation Commissioner position."
IWD's motion to dismiss: Procedural issue. IWD
filed a motion to dismiss the petition. It argued
Mormann's failure-to-hire claim should be dismissed. It
asserted the district court lacked "subject matter
jurisdiction or authority" because Mormann failed to
file a complaint with the ICRC within 300 days of the
discriminatory act or unfair practice. See Iowa Code
attached the same exhibits to its motion to dismiss that
Mormann had attached to his petition. According to IWD, the
court "may consider [the exhibits] on [a] motion to
dismiss for the threshold jurisdictional question-to aid the
Court in establishing facts relevant to jurisdiction and
authority." So although IWD argued an evidentiary
hearing was not necessary, it submitted exhibits to "aid
the court in establishing facts."
resisted the motion to dismiss. On the procedural issue,
Mormann emphasized that motions to dismiss are rarely granted
and "nearly every case will survive a motion to
dismiss" under notice pleading. See Rees v. City of
Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004).
citing Tigges v. City of Ames, 356 N.W.2d 503, 511
(Iowa 1984), Mormann conceded "[a]s correctly stated by
the defendants in this case, a court must have subject matter
jurisdiction to hear a case and that an evidentiary hearing
is appropriate to determine whether subject matter
jurisdiction is appropriate." Mormann further stated
"[w]hether the . . . statute of limitation was tolled in
this case, is dependent upon the facts of this particular
Mormann noted "fact specific or complicated questions
involving the timeliness of a complaint are rarely resolved
at this juncture in the proceedings." Ritz v.
Wapello Cty. Bd. of Supervisors, 595 N.W.2d 786, 791
(Iowa 1999). He further asserted "[p]laintiff clearly
alleged facts that there was no way that he could have known
that he did not get the job based on an illegal reason."
IWD motion to dismiss: Merits of equitable tolling.
Turning to the merits of equitable tolling, IWD stated
equitable doctrines could not be employed to toll the 300-day
statute of limitations, but most of its arguments focused on
whether Mormann alleged facts sufficient to invoke the
doctrine. IWD argued even if there was a discovery rule,
Mormann was on inquiry notice when he learned that a much
younger person had been hired for a position for which
Mormann was clearly qualified.
to IWD, equitable tolling arises only "when the
plaintiff, despite all due diligence, is unable to obtain
vital information bearing on the existence of his
claim." Dorsey v. Pinnacle Automation Co., 278
F.3d 830, 836 (8th Cir. 2002) (quoting Dring v. McDonnell
Douglas Corp., 58 F.3d 1323, 1328 (8th Cir. 1995)).
According to IWD, however, Mormann was on notice of a
potential claim prior to the public release of the Wahlert
deposition. IWD emphasized that in order to make a prima
facie case of age discrimination under the familiar
McDonnell Douglasframework, a plaintiff must show that
"(1) [he or] she was a member of the protected group;
(2) [he or] she was qualified to perform the job; (3)[he or]
she suffered an adverse employment action; and
(4)circumstances permit an inference of [age]
discrimination." Lewis v. Heartland Inns of Am.,
L.L.C., 591 F.3d 1033, 1038 (8th Cir. 2010) (quoting
Bearden v. Int'l Paper Co., 529 F.3d 828, 831
(8th Cir. 2008)). Clearly, IWD argued, Moorman was aware of
the first three McDonnell Douglas criteria. On the
last criterion, IWD argued, circumstantial evidence
sufficient to draw an inference of age discrimination
includes knowledge that an employer hired a younger person
for the job. See Bearden, 529 F.3d at 832.
according to IWD, the Wahlert deposition has nothing to do
with knowledge that the plaintiff should have had about a
potential age discrimination claim. Further, IWD argued
Wahlert's statement has no bearing whatsoever as Pals was
the first choice of the hiring committee and Pals accepted
responded by asserting "the discriminatory reasons"
for which he was not hired could not and would not have been
known to him at the time of their occurrence. According to
Mormann, situations like that presented by the late
disclosure of reasons in Wahlert's deposition are why the
ICRC promulgated Iowa Administrative Code rule 161- 3.3(3).
Mormann asserted it makes no sense to require parties to file
a complaint with the ICRC until they have evidence supporting
also argued IWD deliberately hid from him the real reasons
why he was not hired. According to Mormann, had the
defendants been honest and told him the real reason why he
was not hired, he would have known and been able to file a
timely complaint with the ICRC. Mormann asserted he had no
reason to believe that age discrimination was at work until
he had access to the Wahlert deposition. Further, Mormann
noted nothing in the letter he received from Godfrey gave him
any indication the decision was made based on age. Mormann
conceded in his resistance, however, that "[a]t the time
[he] was passed over for the Deputy Workers' Compensation
Commissioner job, he was aware that a younger worker, Erin
Pals, was hired in his place."
Hearing before the district court. The district
court held a brief hearing on the matter. The district court
opened the hearing by stating that the court was prepared to
hear IWD's motion to dismiss. IWD stressed "there is
no dispute at this point that applying the face of the
statute that this case must be dismissed." Mormann
argued facts had been concealed from him, namely, that
Wahlert did not want to invest training resources in Mormann
because of his intent to retire. Mormann briefly noted
although IWD suggested there were reasons other than age for
its failure to hire him, "those are discovery
issues." Mormann noted IWD had not "produced any
documents . . . in discovery to even let [him] know about any
district court asked IWD whether the dispute should be more
appropriately resolved in a summary judgment motion. IWD
responded the court had an obligation to determine the facts
on its jurisdictional authority and that oftentimes courts
"will even hold an evidentiary hearing at the motion to
dismiss level." As a result, IWD argued it would be
appropriate for the court to ...