from the Iowa District Court for Polk County, Jeanie K.
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
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.
by Danilson, C.J., and Potterfield and Doyle, JJ.
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
Background Facts and Proceedings.
worked for the defendants from August 2014 until May 2016.
Lawsuit. While still employed by the defendants,
Gerth filed his first complaint-complaint number
02-16-68599-with the Iowa Civil Rights Commission
(ICRC). 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
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.
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.
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.
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. In it, Gerth alleged disability
discrimination, harassment, retaliation, and a hostile work
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.
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.
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 ...