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Gerth v. Iowa Business Growth, Inc.

Court of Appeals of Iowa

October 24, 2018

ANDREW GERTH, Plaintiff-Appellant,

          Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         The plaintiff appeals from the partial dismissal of one lawsuit and the complete dismissal of another; both involve allegations of discrimination against his former employer and supervisor.

          Erik S. Fisk (until withdrawal) and John F. Fatino of Whitfield & Eddy, PLC, Des Moines, for appellant.

          Abigail L. Thiel and Gary R. Fischer of Simpson, Jensen, Abels, Fischer & Bouslog, PC, Des Moines, for appellees.

          Heard by Danilson, C.J., and Potterfield and Doyle, JJ.


         Andrew Gerth appeals the partial dismissal of his second lawsuit (No. LACL138027) and the complete dismissal of his third lawsuit (No. LACL138196) by the district court. Both of these lawsuits and a first lawsuit-which is the subject of another opinion filed today-relate to Gerth's employment with Iowa Business Growth, Inc. and supervisor Dan Robeson.[1]

         I. Background Facts and Proceedings.

         Gerth worked for the defendants from August 2014 until May 2016.

         First Lawsuit. While still employed by the defendants, Gerth filed his first complaint-complaint number 02-16-68599-with the Iowa Civil Rights Commission (ICRC).[2] The commission issued a right-to-sue letter in September 2016. Based on this first right-to-sue letter, Gerth filed his first lawsuit on November 15.[3] In the lawsuit, Gerth alleged age discrimination, a hostile work environment, and retaliation. Regarding his claim of age discrimination, Gerth specifically alleged:

Andrew suffered several ongoing adverse employment actions, in that he was disciplined for acting like a "millennial," instructed by his superior on how to use a urinal, monitored and subjected to intense scrutiny by his superiors, accused of closing his office door to make "personal calls" at work despite never actually having done so, and disciplined for closing his door to work when other employees were not.

         He also argued a violation of Iowa Code chapters 91A and 91B (2016), claiming the defendants had unreasonably denied his request to provide him his personnel and wage records from the duration of his employment.

         On May 30, the district court dismissed without prejudice Gerth's first lawsuit for failure to timely serve the defendants pursuant to Iowa Rule of Civil Procedure 1.302(5). Gerth appealed the dismissal, which is the issue in Gerth v. Iowa Business Growth. Inc., No. 17-1018, 2018 WL ___ (Iowa Ct. App. Oct. 24, 2018)-also decided today.

         Second Lawsuit. Gerth filed his second complaint with the ICRC on September 30, 2016-complaint number 09-16-69598. In his second complaint, Gerth alleged both age and disability discrimination as well as the denial of an accommodation and constructive discharge. The ICRC issued a second right-to-sue letter on March 8, 2017. On May 26, Gerth filed his second lawsuit.[4] In it, Gerth alleged disability discrimination, harassment, retaliation, and a hostile work environment.

         On June 21, less than a month after the district court dismissed his first lawsuit, Gerth amended his second lawsuit to add a general claim of age discrimination.

         In July, the defendants filed a pre-answer motion to dismiss part of the second lawsuit. They argued that the added age-discrimination claim arose from Gerth's first ICRC complaint and the resulting right-to-sue letter had expired in early December 2016-several months before Gerth added the claim to his second lawsuit in June 2017. As part of their argument, the defendants noted that the second lawsuit did not contain an age-discrimination claim until Gerth amended it in June, after the district court had dismissed Gerth's first petition. The defendants asked the court to dismiss with prejudice Gerth's age-discrimination claim from the second lawsuit.

         In his response, Gerth disputed the defendants' claim that Gerth's first ICRC complaint contained "all claims concerning age-related discrimination from the beginning of [his] employment" with the defendants. He pointed out that in the second ICRC complaint, he had responded "yes" to the following question: "If your complaint involves employment or credit, do you believe you were discriminated against because of your age?" Additionally, in an apparent concern that the district court would find his amendment to the second petition untimely for being added more than ninety days after the second right-to-sue letter was issued, Gerth argued that his June 21 amendment of the lawsuit related back to the original May 26 filing date, pursuant to Iowa Rule ...

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