               IN THE SUPREME COURT OF IOWA
                               No. 16–1333

                           Filed June 15, 2018


MARLON MORMANN,

      Appellant,

vs.

IOWA WORKFORCE DEVELOPMENT,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Douglas F.

Staskal, Judge.



      Former administrative law judge requests interlocutory review of

the district court’s dismissal of his failure-to-hire claim. AFFIRMED.



      Lori 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.


      Thomas J. Miller, Attorney General, and David L.D. Faith II and

Jeffrey C. Peterzalek, Assistant Attorneys General, for appellee.
                                      2

APPEL, Justice.

      In this 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.

      The 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 period.

      Mormann 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 court.
                                          3

      I. Factual and Procedural Background.

      A. Factual Background to Failure-to-Hire Claim.

      1. 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.

      2. 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.

      Godfrey 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.

      On March 7, Godfrey sent Mormann a letter informing him that he

had not been selected for the position. Godfrey told Mormann,
                                    4
      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.

      3. 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.

      4. 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
                                     5

his application for the deputy workers’ compensation commissioner

position. Mormann challenged the decision of IWD and Wahlert not to

hire him for the position.

      Iowa 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 provides,

      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
      tolling exist.

Iowa Admin. Code r. 161—3.3(3).

      Mormann 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
                                           6

claimed the true reason he was not considered did not come out until

Wahlert’s deposition was released on March 18.

       Mormann 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 position.

       In his 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.

       B. District Court Proceedings.

       1. 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. 1 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,


       1Mormann     also alleged constructive discharge in connection with his departure
from employment at IWD on January 5, 2015. The district court did not dismiss this
claim, and it is not before us in this interlocutory appeal.
                                    7

he had held the position of deputy workers’ compensation commissioner

twice before.

      Mormann 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.

      Mormann 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.”

      2. 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 § 216.15(13).

      IWD 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
                                        8

hearing was not necessary, it submitted exhibits to “aid the court in

establishing facts.”

      Mormann 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).

      Yet, 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 case.”

      Nonetheless,     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.”

      3. 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.
                                            9

          According 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 Douglas 2

framework, 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.

          Thus, 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 the offer.

          Mormann responded by asserting “the discriminatory reasons” for

which he was not hired could not and would not have been known to him

          2McDonnell   Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824
(1973).
                                      10

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 their claim.

       Mormann 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.”

       4. 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 of that.”
                                       11

      The 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 consider factual issues even though the

vehicle for presenting the issue was a motion to dismiss.

      5. District court ruling.   The district court began its ruling by

stating that a motion to dismiss was before the court and that “all of the

allegations of the petition are regarded as true.”       Quoting Tigges, the

district court stated a court faced with questions of its subject matter

jurisdiction   must   “take   charge    of   the   proceedings   affirmatively,

regardless of the vehicle used to raise the issue; utilize the most efficient

methods at its disposal to determine the true fact; and decide the issue

promptly.” 356 N.W.2d at 510.

      The district court noted the case involved a question of authority to

hear a particular case and not subject matter jurisdiction.           Yet, the

district court determined the directions for trial courts in Tigges were

fully applicable when a question of authority to decide a particular case

was presented. Further, the district court declared

      a motion to dismiss is an acceptable procedural context in
      which to litigate the issue, especially where, as here, all the
      material facts are before the court and they are undisputed,
      or taken as true from the pleading of the party resisting the
      motion.

      From a combination of its factual findings and from the allegations

in Mormann’s complaint, the district court found the discovery rule was

not available to save Mormann’s claim. The district court reasoned the

scope of equitable tolling was similar to that of the traditional discovery
                                      12

rule applied by Iowa courts generally under statutes of limitations. See

Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732, 736 (Iowa 2008).

The district court held Mormann knew as of the March 7, 2014 letter

that the deputy workers’ compensation commissioner position had been

awarded to a younger candidate with no experience in that role. At that

time, according to the district court, Mormann was on inquiry notice

under our caselaw. In addition, the district court concluded Mormann

did not show reasonable diligence in discovering his claim. According to

the district court, Mormann could have interviewed Godfrey and others

and could have learned the information necessary to provide the basis for

filing a claim with the ICRC within the 300-day filing limitation.

      On the question of equitable estoppel, the district court rejected

Mormann’s claim. The court noted if a failure to confess discriminatory

motive were sufficient to give rise to an equitable estoppel claim, the 300-

day limitation would be meaningless. In addition, the court noted the

reservations expressed by Wahlert were not material because Pals

accepted the job. Further, the court characterized Wahlert’s statements

about Mormann’s potential retirement as, at most, weak evidence of

discriminatory animus.         To the extent Wahlert’s comments revealed

discriminatory animus, the court reasoned, the animus never came into

play in the hiring process. The district court declared “the premise of the

argument—that Wahlert admitted that Mormann wasn’t hired because of

his age—is unsupported by the evidence.” (Emphasis added.)

      Having rejected equitable tolling and equitable estoppel, the

district   court   dismissed    Mormann’s   failure-to-hire   claim   for   not

complying with the 300-day filing limitation in Iowa Code section

216.15(13).
                                     13

      6. Posttrial motions.    Mormann filed a motion to reconsider and

enlarge the findings of the district court under Iowa Rule of Civil

Procedure 1.904(2). Although the motion was filed outside the fifteen-

day deadline, Mormann argued under rule 1.1007, the district court had

discretion to grant up to thirty days to file such a motion.   Mormann

attached two affidavits, one from himself and the other from Godfrey, to

support his motion.

      In favor of reconsideration, Mormann argued the court’s ruling on

the motion to dismiss without an opportunity for discovery was

premature under Tigges, 356 N.W.2d at 511.         According to Mormann,

“The court would be well-served by allowing the parties to complete the

discovery process.” Mormann further argued newly submitted affidavits

demonstrated the district court erred in dismissing the complaint.

      IWD responded the motion to enlarge was untimely.        IWD noted

the motion was originally filed on August 8, withdrawn and refiled on

August 11. The filing was thus more than thirty days after the district

court’s July 7 ruling and was untimely under any theory of timeliness.

Even so, IWD characterized the motion as a rehash of prior arguments.

      The district court denied the motion as untimely. It further noted

the purpose of a rule 1.904 motion is not to present newly discovered

evidence. Finally, the court stated nothing in the motion would change

its initial ruling in any event.

      7. Interlocutory appeal. Mormann sought an interlocutory appeal,

which we granted.       During the appeal process, Mormann sought to

include the affidavits submitted in his rule 1.904(2) motion in the

appendix. IWD filed a motion to strike. We granted the motion to strike,

noting the interlocutory appeal had been filed on August 8 and the

affidavits were not part of the record at that time.
                                    14

      On appeal, Mormann argues the standard of review in this matter

is the standard used for a motion to dismiss.        As a result, Mormann

maintains, we must accept as true the well-pleaded factual allegations in

the complaint. See Shumate v. Drake Univ., 846 N.W.2d 503, 507 (Iowa

2014).

      On the merits, Mormann argues equitable tolling is available under

the ICRA.     Mormann recognizes a party is placed on notice when the

party gains sufficient knowledge of facts that would put a reasonable

person on notice of the existence of a problem or potential problem. See

Buechel, 745 N.W.2d at 736. Yet, Mormann claims he did not learn of

the problem or potential problem until the attorney general’s office

released Wahlert’s deposition containing the reference to Mormann’s

approaching     retirement.    Mormann     asserts    the   district   court’s

statements that Mormann could have uncovered the discriminatory

animus had he exercised due diligence were without any factual support.

      With respect to equitable estoppel, Mormann cites Tigges for the

proposition a motion to dismiss should be denied when “the evidence is

not substantial at this point sufficient to support a finding” and that “the

matter might be addressed further after the parties had concluded

discovery.”   356 N.W.2d at 510.     In any event, Mormann argues it is

“possible to conceive that IWD intended for [him] to rely on the

statements in his letter and what he was told as the reason for the

decision.”    Further, Mormann cites the district court’s statement that

Wahlert’s statement was only “some evidence” of age discrimination.

According to Mormann, the fact there was some evidence of age

discrimination is exactly why the district court erred in granting the

motion to dismiss.        The district court, according to Mormann,

“acknowledge[d] that the evidence is incomplete.”       Further, Mormann
                                      15

argues that “[t]his premature dismissal violates his right to a trial on the

merits and at the very least the right to develop the factual record in

order for the district court to make an informed decision on this issue.”

      IWD responds by claiming the standard of review in this case is not

that associated with a motion to dismiss.           While IWD agrees with

Mormann that motions to dismiss for failure to state a claim ordinarily

limit consideration to the well-pleaded facts, which are taken as true,

that standard does not apply to a review-of-dismissal ruling premised on

jurisdictional issues.     Instead, IWD argues in the context of a

jurisdictional challenge, the trial court’s findings of fact have the effect of

a jury verdict.

      On the merits, IWD argues the ICRC did not have the power to

create an equitable exception to the jurisdictional limitation in Iowa Code

section 216.15(13).      IWD cites the language of the statute, which

provides that “a claim under this chapter shall not be maintained unless

a complaint is filed with the commission within three hundred days after

the alleged discriminatory act or unfair practice occurred.” Iowa Code

§ 216.15(13).     IWD argues under the unambiguous language of the

statute, there is no equitable exception to the filing requirement.

      IWD further argues Mormann had all the information necessary to

place him on constructive notice of a potential claim.             Under the

generally applicable version of the discovery rule in Iowa and in relevant

federal cases, a plaintiff is on inquiry notice based upon “sufficient

knowledge of facts that would put that person on notice of the existence

of a problem or potential problem.”        Buechel, 745 N.W.2d at 736; see

Dring, 58 F.3d at 1328; Chakonas v. City of Chicago, 42 F.3d 1132, 1135

(7th Cir. 1994).    Here, at the time of his failure to get the deputy

commissioner’s position, IWD asserts, Mormann had all the information
                                      16

necessary to establish a prima facie case of age discrimination and was

thus on sufficient inquiry notice to prevent the discovery rule from being

used as a tool to toll the running of the 300-day filing limitation in Iowa

Code section 216.15(13).

      IWD further argues Wahlert’s deposition demonstrates that she did

not engage in age discrimination. Citing two federal circuit court cases,

IWD asserts inquiry by Wahlert into Mormann’s retirement plans is not

evidence of age discrimination. See Cox v. Dubuque Bank & Tr. Co., 163

F.3d 492, 497 (8th Cir. 1998); Woythal v. Tax-Tenn Corp., 112 F.3d 243,

247 (6th Cir. 1997). In any event, IWD maintains Wahlert’s deposition

proves that Mormann was not hired because another candidate was

selected and not because of age. The “discovery” of Wahlert’s deposition

thus did not provide vital information to Mormann that served as a basis

for tolling the running of the statutory filing period.

      Turning to equitable estoppel, IWD notes every sentence of the

rejection letter sent to Mormann on March 7, 2014 is accurate. Further,

IWD argues the failure to include a statement in the letter that “we refuse

to hire you because of age” cannot toll the statute of limitations because

such an approach to equitable estoppel would, as the district court held,

obliterate the 300-day filing requirement. IWD further asserts Mormann

failed to show reasonable reliance on any alleged misrepresentation.

      II. Issues Related to Standard of Review.

      At the outset, we address procedural questions lurking in this case

related to the proper standard of review in this appeal. In the district

court, IWD filed what it characterized as a motion to dismiss. Ordinarily

on motions to dismiss, the questions are legal and all well-pleaded facts

are taken to be true in deciding the issue.      See Sanchez v. State, 692

N.W.2d 812, 814 (Iowa 2005).
                                      17

      In its order, the district court declared that for the purposes of the

ruling, all of the allegations in the petition were regarded as true. Yet,

the district court, quoting Tigges, recognized when a preliminary

challenge to its authority to hear a particular case is raised, the court

should “utilize the most efficient methods at its disposal to determine the

true fact; and decide the issue promptly.” 356 N.W.2d at 510. Yet, the

district court stated a motion to dismiss is an acceptable procedural

context to litigate the authority issue when, as here, all the material facts

are before the court and they are undisputed.

      However, the district court did not always stick to undisputed facts

in its ruling.    The district court included observations about the

evidence. For instance, the district court characterized the premise of

Mormann’s argument that Wahlert admitted that Mormann was not

hired because of age as “unsupported by the evidence,” an observation

more appropriate in a trial setting. Further, the court declared Wahlert’s

deposition testimony cannot be reasonably considered as anything more

than “some evidence, albeit weak evidence, of age discrimination.” But

weighing the strength of evidence is not a feature ordinarily associated

with ruling on a motion to dismiss.

      It was not completely clear at the district court precisely what the

ground rules were for determination of the preliminary question of

authority to hear the case.     While IWD believed the matter could be

decided based on undisputed facts, IWD submitted exhibits attached to

the pleadings. And while Mormann argued the appropriate standard was

the one ordinarily applied to motions to dismiss generally, Mormann

further stated “an evidentiary hearing is appropriate” to decide a

threshold question like that presented in this case.          Although not

expressly stated, the implication of Mormann’s statement, in context, is
                                    18

that the district court should decline the motion to dismiss because of

factual issues and conduct further proceedings where the parties would

have an opportunity to submit evidence.

      There are three alternative approaches to reviewing this matter.

We could treat the hearing below as if it were simply a motion to dismiss

on the pleadings. In that event, all the well-pleaded allegations in the

petition would be deemed as true, and the motion to dismiss would be

granted only if there were no conceivable state of facts under which the

nonmoving party would be entitled to relief.    Vaughn v. Ag Processing,

Inc., 459 N.W.2d 627, 639 (Iowa 1990); Golden v. O’Neill, 366 N.W.2d

178, 179 (Iowa 1985).     Although both parties presented exhibits, the

plaintiff’s exhibits were attached to the petition and are thus regarded as

part of the pleadings. See Woods v. Schmitt, 439 N.W.2d 855, 860 (Iowa

1989), abrogated on other grounds by Christy v. Miulli, 692 N.W.2d 694,

701 (Iowa 2005).

      A second option is to treat the proceedings below under the

standards for a summary judgment motion. Where additional matters

are considered by the district court outside the pleadings, we may treat a

motion to dismiss as a motion for summary judgment. See Tigges, 356

N.W.2d at 510 (holding “form must give way to substance,” and a motion

to dismiss may be treated as a motion for summary judgment when the

motion relies on facts outside of the pleadings); see also George v. D.W.

Zinser Co., 762 N.W.2d 865, 867 (Iowa 2009) (noting the district court

treated a motion to dismiss as a motion for summary judgment “because

it relied on matters outside the pleadings”). As the moving party, IWD

bears the burden of showing there is no genuine issue of material fact.

Cannon v. Bodensteiner Implement Co., 903 N.W.2d 322, 327 (Iowa

2017); Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015). The burden
                                    19

remains on the moving party regardless of who has the burden of proof

at trial. In re Eickman’s Estate, 291 N.W.2d 308, 313 (Iowa 1980).

      Finally, we could treat the lower court proceedings as a trial on the

merits on the issue of whether the court has authority to hear the case.

If so, we would review the trial court ruling for errors at law. Tigges, 356

N.W.2d at 512.        Factual issues would be reviewed for substantial

evidence. Id.

      For the reasons expressed below, we conclude the district court

properly dismissed Mormann’s claim that the discovery rule tolls the

filing limitation under any standard that might be applied to review the

district court’s ruling. Under the facts as pled by Mormann, including

the exhibits to the petition and supplemented with a key concession

made before the district court, we conclude Mormann was not entitled to

toll the 300-day filing limitation in Iowa Code section 216.15(13) under

the discovery rule as a matter of law. We come to the same conclusion

with respect to the equitable estoppel theory based on the failure of IWD

to disclose what Mormann claims is the true reason for his dismissal—

age discrimination.

      In the future, however, we encourage district courts to actively

manage the disposition of preliminary questions regarding subject matter

jurisdiction and authority in particular cases.     Although a motion to

dismiss is clearly the appropriate vehicle to raise the issue, the district

court should determine based upon the framing of the issues and input

from the parties whether preliminary issues of subject matter or

authority is to be heard solely on the pleadings under the standards of a

motion to dismiss, whether factual materials outside the pleadings will

be considered under the standards of a motion for summary judgment,

or whether the hearing will be a trial-type hearing on the merits of the
                                   20

preliminary issue with an appropriate opportunity afforded to the parties

to conduct discovery on the limited preliminary issues. See Tigges, 356

N.W.2d at 511.

      III. Discussion.

      A. Availability of Equitable Tolling Doctrines Under the ICRA.

We first address a threshold question, namely whether the doctrines of

equitable tolling apply under the provision of the ICRA requiring a

claimant to file a complaint with the ICRC within 300 days of when the

“alleged discriminatory or unfair practice” occurred.          Iowa Code

§ 216.15(13).    We come to the firm conclusion that equitable tolling

doctrines are available for a number of reasons.

      First, equitable exceptions to limitations statutes are common in

Iowa. In the negligence case of Chrischilles v. Griswold, we adopted a

discovery rule under the generally applicable statute of limitations that

when the plaintiff knows or should have known facts that put the

plaintiff on inquiry notice that a claim may be present. 260 Iowa 453,

463, 150 N.W.2d 94, 100 (Iowa 1967), superseded by statute on other

grounds, 1975 Iowa Acts ch. 239, § 26 (codified at Iowa § 614.1(9)

(1977)), as recognized in Langner v. Simpson, 533 N.W.2d 511, 516–17

(Iowa 1995).     Since then, we have applied the discovery rule—an

equitable tolling doctrine—in a wide variety of settings, including cases

involving legal malpractice, Trobaugh v. Sondag, 668 N.W.2d 577, 583

(Iowa 2003); fraud, Hallett Construction Co. v. Meister, 713 N.W.2d 225,

231 (Iowa 2006); products liability, Franzen v. Deere & Co., 334 N.W.2d

730, 732 (Iowa 1983); and express and implied warranties, Brown v.

Ellison, 304 N.W.2d 197, 201 (Iowa 1981), disapproved of on other

grounds by Franzen, 334 N.W.2d at 732.             We have also applied a
                                     21

discovery rule on claims brought under the Iowa Tort Claims Act.

Vachon v. State, 514 N.W.2d 442, 445 (Iowa 1994).

      The application of the discovery rule in these cases is based upon

the common sense notion that a potential claim should not be barred

when the failure to bring a timely action arises from the plaintiff’s lack of

knowledge about key facts that are unknown to the plaintiff and cannot

reasonably be discovered by the plaintiff even in the exercise of due

diligence.   We have stressed “the common-law discovery rule can . . .

provide an exception to the statute of limitations.” Borchard v. Anderson,

542 N.W.2d 247, 250 (Iowa 1996). We apply the discovery rule when it

would be unfair to charge “a plaintiff with knowledge of facts which are

‘unknown and inherently unknowable.’ ” LeBeau v. Dimig, 446 N.W.2d

800, 802 (Iowa 1989) (quoting Urie v. Thompson, 337 U.S. 163, 169, 69

S. Ct. 1018, 1024 (1949)). Applying the discovery rule to claims under

the ICRA would be consistent with Iowa caselaw and its underlying

rationale.

      As early as 1875, we recognized equitable estoppel as providing a

vehicle to toll a statute of limitations. Dist. Twp. of Boomer v. French, 40

Iowa 601, 603 (1875), abrogated on other grounds by Christy, 692 N.W.2d

at 701–02; see L & W Constr. Co. v. Kinser, 251 Iowa 56, 65, 99 N.W.2d

276, 282 (1959); Holman v. Omaha & C. B. Ry. & Bridge Co., 117 Iowa

268, 272–73, 90 N.W. 833, 834 (1902). As noted in Christy, the doctrine

developed “to prevent a party from benefiting from ‘the protection of a

limitations statute when by his own fraud he has prevented the other

party from seeking redress within the period of limitations.’ ”          692

N.W.2d at 702 (quoting Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex.

1983)). The doctrine of equitable estoppel is not a stranger to our law.
                                      22

      Second, the remedial purposes of the ICRA are best served by

doctrines of equitable tolling.   As noted by the United States Court of

Appeals for the Third Circuit in the context of the Federal Civil Rights

Act, equitable tolling doctrines are consistent with the “goal of

interpreting humanitarian legislation in a humane and commonsensical

manner so as to prevent unnecessarily harsh results in particular cases.”

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.

1994), abrogated on other grounds by Rotkiske v. Klemm, 890 F.3d 422,

428 (3d Cir. 2018); see Hart v. J.T. Baker Chem. Co., 598 F.2d 829, 831

(3d Cir. 1979). A few years later, in Zipes v. Trans World Airlines, Inc.,

the United States Supreme Court held limitations in Title VII of the

Federal Civil Rights Act were not jurisdictional and were subject to

“waiver, estoppel, and equitable tolling.” 455 U.S. 385, 393, 102 S. Ct.

1127, 1132 (1982). According to the Zipes Court, the application of these

equitable doctrines would “honor the remedial purpose of the legislation

as a whole without negating the particular purpose of the filing

requirement.” Id. at 398, 102 S. Ct. at 1135.

      In the past decades, there has been a long parade of federal courts

marching to Zipes and applying equitable tolling doctrines in a wide

variety of factual settings under civil rights laws.        See, e.g., Zerilli-

Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80–81 (2d Cir. 2003);

Dorsey, 278 F.3d at 836; Oshiver, 38 F.3d at 1390, 1392; Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 453 (7th Cir. 1990); Cocke v. Merrill

Lynch & Co., 817 F.2d 1559, 1561–62 (11th Cir. 1987); Wilkerson v.

Siegfried Ins. Agency, 683 F.2d 344, 348 (10th Cir. 1982); Wright v.

Tennessee, 628 F.2d 949, 952–53 (6th Cir. 1980) (en banc); Reeb v. Econ.

Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975). Many cases

involve application of equitable tolling in the context of the filing of timely
                                          23

charges under the Federal Age Discrimination in Employment Act

(ADEA). See, e.g., Cada, 920 F.2d at 451–53; Ott v. Midland-Ross Corp.,

600 F.2d 24, 30 (6th Cir. 1979); Fulton v. NCR Corp., 472 F. Supp. 377,

384 (W.D. Va. 1979).

       The ICRA, of course, is not the same as Title VII or the ADEA.3

There is no requirement that we follow federal precedent, either because

we find the logic and reasoning unpersuasive or because of differences

between the Iowa and federal statutes in language or structure. See

Sandra F. Sperino, Revitalizing State Employment Discrimination Law, 20

Geo. Mason L. Rev. 545, 583–84 (2013). Yet, we find the reasoning of the

federal precedent on the issue of equitable tolling persuasive and

consistent with our general approach to statutes of limitations.

       As to the discovery rule, we agree with the notion that the statute

of limitations in civil rights laws should not be so strictly applied as to

cut off claims which could not have been discovered in an exercise of

reasonable diligence.       As noted by Judge Wisdom in a seminal Fifth

Circuit case over forty years ago that adopted equitable tolling in a Title

VII case, “Secret preferences in hiring and even more subtle means of

illegal discrimination, because of their very nature, are unlikely to be

readily apparent to the individual discriminated against.” See Reeb, 516

F.2d at 931.


       3The  language of the filing limitations in the Iowa and federal statutes is quite
similar. Under the Federal Civil Rights Act, administrative complaints must be filed
within the applicable time period measured from the time “the alleged unlawful
employment practice occurred . . . .” 42 U.S.C.A. § 2000e-5(e)(1) (Westlaw through Pub.
L. No. 115-173). Under the ADEA, administrative complaints must be filed within the
applicable time period measured from the number of days “after the alleged unlawful
practice occurred” or, in certain cases, the number of days “after receipt by the
individual of notice of termination of proceedings under State law.” 29 U.S.C.A.
§ 626(d)(1) (Westlaw through Pub. L. No. 115-173). Under the ICRA, the administrative
complaint must be filed within 300 days “after the alleged discriminatory or unfair
practice occurred.” Iowa Code § 216.15(13).
                                     24

      With respect to equitable estoppel, we endorse the classic

statement of Justice Black that no one

      may take advantage of his own wrong. Deeply rooted in our
      jurisprudence this principle has been applied in many
      diverse classes of cases by both law and equity courts and
      has frequently been employed to bar inequitable reliance on
      statutes of limitations.

Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232–33, 79 S. Ct. 760,

762 (1959) (footnote omitted).

      Further, if anything, the logic and reasoning in the caselaw is

reinforced by language in the ICRA, where the legislature has directed

that the Act “shall be construed broadly to effectuate its purposes.” Iowa

Code § 216.18(1) (2015); accord Haskenhoff v. Homeland Energy Sols.,

LLC, 897 N.W.2d 553, 608 (Iowa 2017) (Appel, J., concurring).          Other

state courts have found equitable tolling doctrines applicable under state

civil rights acts in part because of the similar legislative direction to the

courts to ensure accomplishment of the beneficial purposes of the

enactments. See, e.g., McDonald v. Antelope Valley Cmty. Coll. Dist., 194

P.3d 1026, 1037–39 (Cal. 2008); Williams v. Comm’n on Human Rights &

Opportunities, 777 A.2d 645, 658 (Conn. 2001); Copeland v. Desert Inn
Hotel, 673 P.2d 490, 492 (Nev. 1983); Indep. Fire Co. No. 1 v. W. Va.

Human Rights Comm’n, 376 S.E.2d 612, 615–16 (W. Va. 1988).

      It is also important to remember that civil rights complaints are

often filed by laypersons.    Indeed, providing an avenue for relief by

unrepresented persons is one of the rationales for establishing an

administrative structure to process civil rights complaints. Cf. Marjorie

A. Silver, Evening the Odds: The Case for Attorneys’ Fee Awards for

Administrative Resolution of Title VI and Title VII Disputes, 67 N.C. L. Rev.

379, 386 (1989) (citing a House Report noting the effective enforcement
                                      25

of federal civil rights law is largely dependent on private citizens bringing

claims, and the vast majority cannot afford legal counsel and thus are

unable to effectively present their cases to the courts, in the context of

the purpose of an award of attorneys’ fees for successful claimants).

Strict    and   highly   technical   enforcement   of   filing   limitations   is

inconsistent with the statutory purpose of providing a remedial avenue

for unrepresented claimants. See Del. State Coll. v. Ricks, 449 U.S. 250,

262 n.16, 101 S. Ct. 498, 506 n.16 (1980) (“[T]he limitations periods

should not commence to run so soon that it becomes difficult for a

layman to invoke the protection of the civil rights statutes.”); Dartt v.

Shell Oil Co., 539 F.2d 1256, 1260–61 (10th Cir. 1976) (asserting highly

technical enforcement not appropriate as laypeople typically enforce

ADEA statutory rights); Egelston v. State Univ. Coll. at Geneseo, 535 F.2d

752, 754 (2d Cir. 1976) (noting enforcement mechanisms in Title VII

usually triggered by laypeople); Smith v. Josten’s Am. Yearbook Co., 78

F.R.D. 154, 161 (D. Kan. 1978) (emphasizing Title VII “statutory scheme

contemplates achievement of its goals through the largely informal efforts

of laymen”).

         Third, this case does not involve an exceptional statute where the

underlying policy rationale strongly cuts against the application of

equitable tolling. For example, equitable tolling has been held to have no

application to a statute of repose, which is designed to establish a clear

end date for claims. See Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385,

1391 (7th Cir. 1990); Hardin v. City Title & Escrow Co., 797 F.2d 1037,

1040–41 (D.C. Cir. 1986).        Courts have held that equitable tolling

principles do not apply to claims brought under the UCC, where a

fundamental purpose of the statute is to establish clear rules for rapid

commercial transactions. See Husker News Co. v. Mahaska State Bank,
                                            26

460 N.W.2d 476, 479 (Iowa 1990); see also Peters v. Riggs Nat’l Bank,

N.A., 942 A.2d 1163, 1171 (D.C. 2008); Estate of Hollywood v. First Nat’l

Bank of Palmerton, 859 A.2d 472, 473 (Pa. Super. Ct. 2004); Copier Word

Processing Supply, Inc. v. WesBanco Bank, Inc., 640 S.E.2d 102, 112

(W. Va. 2006).        There might be a question as to whether equitable

doctrines apply to questions of subject matter jurisdiction. 4 See Hardin,

797 F.2d at 1040–41.            Although there are thus occasions where the

policy underpinnings of a specific statute might weigh against equitable

tolling doctrines, we do not have similar policy underpinnings under the

ICRA.    See generally Cada, 920 F.2d at 451 (stating neither equitable

estoppel nor equitable tolling applies to statutes of repose and to

jurisdictional statute of limitations).

        Fourth, the ICRC long ago promulgated a rule under the

legislature’s grant of rulemaking authority in Iowa Code section 216.5(1)

that embraced equitable tolling. According to the Administrative Code,

the rule was promulgated in 1993 and ultimately delayed until the

adjournment of the 1994 session of the general assembly. Iowa Admin.

Code r. 161—3.3(3) & n.1–2 (including a final page listing amendments

to the chapter, where a footnote states the effective date of rule 3.3(3)).

The legislature, however, took no action to override the rule, which has

remained on the books for more than twenty years. During those years,

the legislature amended the ICRA several times without overturning the

rule. See 2009 Iowa Acts ch. 178, §§ 25–26; 2009 Iowa Acts ch. 96, § 3;

2008 Iowa Acts ch. 1028, § 1; 2007 Iowa Acts ch. 110, § 1; 2005 Iowa

        4Questions relating to filing limitations in civil rights acts do not raise questions
of subject matter jurisdiction but only authority to act. See Zipes, 455 U.S. at 398, 102
S. Ct. at 1135; Stafford v. Muscogee Cty. Bd. of Educ., 688 F.2d 1383, 1387–89 (11th
Cir. 1982); Coke v. Gen. Adjustment Bureau, Inc., 640 F.2d 584, 594–95 (5th Cir. 1981)
(en banc); Hart, 598 F.2d at 831; Christo v. Edward G. Boyle Ins. Agency, 525 N.E.2d
643, 645 (Mass. 1988); Copeland, 673 P.2d at 492; Indep. Fire Co., 376 S.E.2d at 616.
                                         27

Acts ch. 23, §§ 1–3; 1998 Iowa Acts ch. 1202, § 36; 1995 Iowa Acts

ch. 129, §§ 8–11. Although hardly necessary in light of the overwhelming

consensus on the applicability of equitable tolling to civil rights statutes,

legislative acquiescence to the agency rule is yet another factor

suggesting     that   equitable   exceptions      are   available   to   the   filing

requirements under the Act. City of Sioux City v. Iowa Dep’t of Revenue

& Fin., 666 N.W.2d 587, 592 (Iowa 2003) (“The fact that this

administrative rule has been in effect for eleven years strongly cautions

against finding the rule invalid.”); City of Marion v. Iowa Dep’t of Revenue

& Fin., 643 N.W.2d 205, 208 (Iowa 2002) (“We have recognized that if the

meaning of the statute that is subject to administrative implementation

is subject to doubt and has been made the object of a rule of long-

standing, we should give weight to the administrative interpretation.”);

accord Smith v. City of Jackson, 544 U.S. 228, 239, 125 S. Ct. 1536,

1544 (2005) (“Finally, we note that both the Department of Labor, which

initially drafted the legislation, and the [Equal Employment Opportunity

Commission (EEOC)], which is the agency charged by Congress with

responsibility for implementing the statute . . . have consistently

interpreted the ADEA to authorize relief on a disparate-impact theory.”);

Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846, 106

S. Ct. 3245, 3254 (1986) (“It is well established that when Congress

revisits   a   statute   giving   rise   to   a   longstanding      administrative

interpretation without pertinent change, the ‘congressional failure to

revise or repeal the agency’s interpretation is persuasive evidence that

the interpretation is the one intended by Congress.’ ” (quoting NLRB v.

Bell Aerospace Co., 416 U.S. 267, 274–75, 94 S. Ct. 1757, 1762 (1974)).
                                     28

         B. Overview of Equitable Tolling Doctrines.

         1. Introduction. We now turn to consider the contours of equitable

tolling. Equitable tolling generally involves two doctrines, the discovery

rule and equitable estoppel. These equitable doctrines are nuanced, fact

specific, and often overlapping to some extent. But the discovery rule

and equitable estoppel doctrines generally tend to emphasize different

facts.     The discovery rule generally focuses on the claimant.         In

considering whether to invoke the discovery rule, courts ask the

proverbial question “what did he or she know and when did he or she

know it?”     On the other hand, equitable estoppel often focuses on the

conduct of the defendant.       An important feature of many equitable

estoppel cases is whether the defendant engaged in conduct that it knew

or should have known would reasonably deter the claimant from filing a

timely civil rights claim.   In order to invoke either theory of equitable

tolling, the asserting party must show reasonable diligence in enforcing

the claim. See, e.g., Ruehl v. Viacom, Inc., 500 F.3d 375, 384 (3d Cir.

2007); Zerilli-Edelglass, 333 F.3d at 80; Richards v. CH2M Hill, Inc., 29

P.3d 175, 184 (Cal. 2001); In re United Servs. Auto. Ass’n, 307 S.W.3d

299, 311 (Tex. 2010).     There is also general agreement in the caselaw

that the burden of proof of showing equitable tolling is on the party

asserting it. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct.

1807, 1814 (2005); Bowden v. United States, 106 F.3d 433, 437 (D.C.

Cir. 1997); Weaver v. Firestone, 155 So. 3d 952, 957 (Ala. 2013); Slusser

v. Vantage Builders, Inc., 306 P.3d 524, 531 (N.M. Ct. App. 2013); In re

Bonds, 196 P.3d 672, 677 (Wash. 2008) (en banc).

         2. Overview of discovery rule. If there is broad general consensus

that under the discovery rule the focus is on what the plaintiff knew or
                                    29

should have known in the exercise of reasonable diligence, there is

disagreement on precisely what the plaintiff is required to know.

      For example, the Massachusetts Supreme Judicial Court and the

New Jersey Supreme Court have taken the position that under state civil

rights laws, a claimant must have knowledge of a claim in order for the

limitations provisions of civil rights law to run. See Wheatley v. Am. Tel.

& Tel. Co., 636 N.E.2d 265, 266 n.4, 268 (Mass. 1994) (filing requirement

that claim be brought within six months of the alleged discriminatory act

did not run until plaintiff knew or should have known that a person

outside a protected class was hired for position); Henry v. N.J. Dep’t of

Human Servs., 9 A.3d 882, 894 (N.J. 2010) (holding limitations under

New Jersey civil rights law runs only when claimant learns or in the

exercise of reasonable diligence should have learned that less qualified

Caucasian nurses were hired for the positions).

      A number of federal cases also embrace the notion that the

discovery rule may excuse a late-filed claim when the claimant did not

know, and in the exercise of reasonable diligence had no reason to know,

that the employer filled the position from which the claimant was fired or

not hired with, for example, a younger person. See Jackson v. Rockford

Hous. Auth., 213 F.3d 389, 396–97 (7th Cir 2000) (finding once plaintiff

learned that employer hired white candidate, the time period for filing a

complaint began to run); see also Boyd v. U.S. Postal Serv., 752 F.2d 410,

414 (9th Cir. 1985) (“The time period for filing a complaint of

discrimination begins to run when the facts that would support a charge

of discrimination would have been apparent to a similarly situated

person with a reasonably prudent regard for his rights.”); Stoller v.

Marsh, 682 F.2d 971, 974 (D.C. Cir. 1982) (noting under Title VII, limits
                                     30

for filing may be tolled if employee did not know or have reason to know

that an employment decision was discriminatory in nature).

      Other federal civil rights discovery rule cases, however, narrowly

focus not on knowledge of a claim but on the occurrence of an adverse

action or unfair practice or an injury. See, e.g., Almond v. Unified Sch.

Dist. No. 501, 665 F.3d 1174, 1177 (10th Cir. 2011); Coons v. Mineta,

410 F.3d 1036, 1040–41 (8th Cir. 2005); Chapman v. Homco, Inc., 886

F.2d 756, 758 (5th Cir. 1989).       Under this narrower approach, the

discovery rule might be available in a failure-to-hire case in which the

plaintiff does not know, and would not know in the exercise of reasonable

diligence, whether the employer had in fact filled the applicable job. See

Almond, 665 F.3d at 1177; Coons, 410 F.3d at 1041; Chapman, 886 F.2d

at 758.

      The distinction between the broad and narrow approach to the

discovery rule can be quite consequential. Under the narrower view, in a

termination case the injury will be immediately known to the potential

plaintiff and the time period for filing will start to run. Yet, the employee

might not suspect unlawful discrimination until many months later

when he or she learns, in the exercise of reasonable diligence, that, for

instance, a much younger employee had been hired for the same

position. Under the narrow view, the running of the filing limitation is

not tolled because the act of termination was immediately known, but

under the broader view, the filing limitation may well be tolled until the

claimant discovers the hiring of the much younger employee.

      3. Overview of equitable estoppel. We now turn to the question of

the scope of a different branch of equitable tolling: equitable estoppel. In

many equitable estoppel cases, the focus is not so much on what the

claimant knew or should have known, but rather upon the misconduct of
                                     31

the defendant. Generally, equitable estoppel may toll the running of the

filing period in a civil rights case when the defendant knows or should

have known that its misconduct will reasonably cause the claimant to

delay the filing of a timely civil rights claim. See Currier v. Radio Free

Europe/Radio Liberty, Inc., 159 F.3d 1363, 1368 (D.C. Cir. 1998); Dring,

58 F.3d at 1329. Equitable estoppel embraces the fundamental rule of

equity that a party should not be able to profit from its own wrongdoing.

See Oshiver, 38 F.3d at 1388; Reeb, 516 F.2d at 930.

      A seminal equitable estoppel case is Reeb, 516 F.2d 924. In Reeb,

the plaintiff was told that her position with the defendant was being

eliminated due to lack of funds. Id. at 930. At the time, a charge under

the applicable provision of Title VII had a ninety-day filing limitation. Id.

at 925. The plaintiff alleged she learned only after the ninety-day filing

period had expired that the employer hired an allegedly less qualified

male replacement for the position.        Id. at 926.   Upon discovering the

hiring of the less qualified male employee, the plaintiff promptly filed a

claim with the EEOC. Id.

      The district court dismissed the case for want of jurisdiction. Id.

On appeal, the United States Court of Appeals for the Fifth Circuit

reversed. Id. at 931. After concluding that the filing limitations were not

jurisdictional, the Reeb court remanded the case to the district court for

a factual determination of whether Reeb was entitled to assert equitable

estoppel. Id. at 929–31. According to the Reeb court,

      employers that discriminate undoubtedly often attempt to
      cloak their policies with a semblance of rationality, and may
      seek to convey to the victim of their policies an air of
      neutrality or even sympathy. These tendencies may even
      extend to the giving of misleading or false information to the
      victim, as is alleged in the present case.

Id. at 931.
                                    32

      Another illustrative case is Meyer v. Riegel Products Corp., 720 F.2d

303 (3d Cir. 1983).    In Meyer, a sixty-one-year-old employee named

Meyer was terminated from employment.              Id. at 304–05.      On

November 11, 1977, when Meyer’s supervisor advised Meyer that he was

being terminated, the supervisor commented that Meyer was getting “a

real screwing.”   Id. at 305.   Several weeks after Meyer’s last day of

employment on November 25, Meyer wrote the director of personnel at

Reigel Products asking, among other things, why he had been dismissed.

Id. On January 13, 1978, the director of personnel responded, stating

that Meyer had been dismissed “when the Engineering Department was

reorganized due to the acquisition of Riegel Products Corporation by the

James River Corporation.” Id.

      After his termination, Meyer and an attorney discussed pension

issues and whether Meyer might have an age discrimination claim. Id.

The attorney advised Meyer that based upon the information available to

him, it was doubtful that Meyer could make out a prima facie case of age

discrimination. Id.

      On May 1, 1978, however, Meyer learned that Riegel Products had

in fact hired a twenty-eight-year-old engineer to perform many of the

tasks that Meyer had performed at the company. Id. Ultimately, Meyer

filed a charge letter with the United States Department of Labor which

was received on September 26, 1978, or 319 days after Meyer was

informed of his termination on November 11, 1977. Id. at 305–06. The

question before the district court was whether equitable tolling could be

applied to save the claim from operation of the 300-day filing limitation.

Id. at 306.   The district court concluded equitable tolling was not

available as a matter of law because “Mr. Meyer’s own statements . . .

consistently [showed] that he felt he had been the subject of age
                                     33

discrimination . . . from the day he was told that he was to be

terminated.” Id. (alterations in original).

      The Third Circuit reversed.      Id. at 309.   According to the Third

Circuit, Meyer alleged that he had been deceived by the employer into

delaying the filing of the claim.    Id.   The fact that Meyer consulted a

lawyer did not defeat his equitable estoppel claim because “where a

defendant misleads a plaintiff he may also mislead plaintiff’s lawyer.” Id.

In such a case, according to the court, “the alleged fraud supersedes the

results that ordinarily flow from consultation with an attorney.” Id. The

court concluded the case may well present a situation “where the

employer’s own acts or omissions have lulled the plaintiff into foregoing

prompt attempts to vindicate his rights.” Id. As a result, there was a

triable issue as to whether Meyer could in fact prove that the

misrepresentation or omission of the defendants had an important effect

in causing him to postpone filing the charge with the department of

labor. Id.

      Another case is Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876

(5th Cir. 1991). In Rhodes, a fifty-six-year-old plaintiff named Rhodes

was discharged by his employer on October 15, 1986. Id. at 877. At the

time of the discharge, the employer told Rhodes that his discharge was a

result of a reduction in the work force and that the company would

consider rehiring him. Id. Yet, on or about December 19, the company

hired a forty-two-year-old person to replace him. Id. Rhodes filed his

complaint fifteen days outside the applicable filing limitation of 180 days

from the alleged discriminatory act. Id. After a trial which found the

company liable for age discrimination, the magistrate judge dismissed

the case with prejudice for     failure to file a timely complaint with the

EEOC. Id. at 877–78.
                                       34

      The Fifth Circuit reversed. Id. at 882. The court emphasized that

even though Rhodes did not file his complaint within 180 days of the

discriminatory act, his federal suit was not necessarily time-barred. Id.

at 878.   According to the court, “If the defendant did conceal facts or

misled the plaintiff and thereby caused the plaintiff not to assert his

rights within the limitations period, the defendant is estopped from

asserting the EEOC filing time as a defense.” Id. at 879.

      Based on its review of the record, the court concluded Rhodes was

entitled to assert equitable estoppel, and his case should not have been

dismissed for failure to file a timely claim with the EEOC. Id. at 880–81.

Among other things, the court found there was no reduction in work

force related to Rhodes’s position. Id. at 881. Further, the evidence at

trial revealed the company had no intention of rehiring Rhodes. Id. Yet

the court emphasized repeatedly that Rhodes was told he would be

considered   for    rehiring.    Id.        While   the   court   noted   that

misrepresentations may not give rise to equitable estoppel when the

plaintiff was not diligent, there was no showing of lack of diligence in this

case. Id. at 882.

      A fourth illustrative case is Sturniolo v. Sheaffer, Eaton, Inc.,

15 F.3d 1023 (11th Cir. 1994). In Sturniolo, a plaintiff named Sturniolo

was told by his supervisor that his position was being eliminated due to

a lack of funds.    Id. at 1024–25.     Sturniolo asserted he believed the

statements until several months later when he learned the company

hired a younger person for the position. Id. at 1025–26. Sturniolo filed a

claim 214 days after he was terminated. Id. at 1024. At the time, the

ADEA required complaints be filled within 180 days of the alleged

unlawful practice. Id. The district court granted summary judgment for
                                              35

the employer on the ground the undisputed facts established that the

complaint was untimely. Id.

        The Eleventh Circuit reversed. Id. at 1026. The court noted the

mere fact that the plaintiff was fifty-eight years old at the time of his

termination did not constitute sufficient evidence to file a claim of age

discrimination.          Id.     The court declared, “When an ‘employer has

articulated a presumptively legitimate reason for discharging an

employee, the latter must elucidate specific facts which would enable a

jury to find that the reason given was not only a sham, but a sham

intended to cover up the employer’s real motive: age discrimination.’ ” Id.

(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (lst

Cir. 1990)). The court concluded the district court improperly granted

the employer summary judgment on the facts presented. Id.; see also

Tucker v. United Parcel Serv., 657 F.2d 724, 727 (5th Cir. 1981) (holding

tolling applies when black seasonal employees were told that they would

not     be   recalled,     but     employer    recalled   almost   exclusively     white

seasonable employees).

        Although these cases provide a reasonably good overview of

application of equitable estoppel, there is another issue lurking in the

cases: does knowledge of facts that would establish a prima facie case

prevent a putative plaintiff from asserting equitable estoppel to toll the

running of a filing limitation of a civil rights statute?

        The answer in the caselaw seems to be that equitable estoppel may

still   apply    if      the     plaintiff   can   show    that    reliance   on     the

misrepresentations was reasonable, the misrepresentations caused the

delay in the filing of a complaint, and the employee exercised reasonable

diligence under all the facts and circumstances. For instance, in Dorsey,

the Eighth Circuit stated that in order for equitable estoppel to apply, the
                                    36

plaintiff must have been aware of a prior claim and then have been lulled

by employer misrepresentations into delaying the filing of a claim. 278

F.3d at 835–36; see also Pruet Prod. Co. v. Ayles, 784 F.2d 1275, 1280

(5th Cir. 1986).

      There is, however, a strand of equitable estoppel cases that take a

somewhat more cautious approach than the above cases. An interesting

case is Cada, 920 F.2d 446. In Cada, the plaintiff attempted to assert

equitable estoppel to avoid dismissal for filing a claim outside the filing

limitations.   Id. at 450–51.     The plaintiff asserted the employer’s

characterization of the reason for discharge as a reorganization was a

ruse to conceal the plan to unlawfully terminate him. Id. at 451.

      The Seventh Circuit rejected the claim. Id. at 453. According to

the court, in order for equitable estoppel to apply in an age

discrimination case, the employer misconduct must be above and beyond

the wrongdoing in the particular case. Id. Allowing equitable estoppel to

arise from the facts of the underlying wrongdoing, declared the court,

would be the equivalent to requiring a defendant to state “[w]e’re firing

you because of your age.” Id.

      The court presented an example of what would amount to

equitable estoppel. Id. at 451. According to the court, equitable estoppel

would apply when an employer promised not to raise a limitations

defense in order to lull a plaintiff into complacency and then turned

around and attempted to enforce the filing limitations. Id.

      It is clear under Cada that mere employer silence on the reasons

for adverse employment action does not give rise to equitable estoppel. If

an omission was sufficient to give rise to equitable estoppel, the Cada

warning would become reality: anything less than confession of age

discrimination would toll the statute. There is support in the caselaw for
                                     37

the proposition that equitable estoppel requires affirmative misconduct

on the part of the defendant. See, e.g., Montoya v. Chao, 296 F.3d 952,

957 (10th Cir. 2002) (requiring active deception); Lavery v. Marsh, 918

F.2d 1022, 1028 (lst Cir. 1990) (requiring “affirmative misconduct”);

William J. Davis, Inc. v. Young, 412 A.2d 1187, 1192 (D.C. 1980) (holding

“mere silence, failure to disclose, or ignorance of facts establishing a

claim” insufficient to show affirmative misconduct to support equitable

estoppel).

      Yet, the Cada court also noted when an employer prepares false

documentation tending to negate any inference of age discrimination,

equitable estoppel might be available.     920 F.2d at 451.     So it is not

entirely clear under Cada when false statements would provide a legally

sufficient predicate for equitable estoppel.    When is a false statement

considered “independent” of the discriminatory act? This issue was not

resolved in Cada.

      C. Application of Equitable Tolling Doctrines.

      1. Introduction. We now turn to the question of whether the 300-

day filing limitation may be tolled in this case either through the

application of the discovery rule or equitable estoppel. In so doing, we

recognize that whether tolling is available is often a fact-intensive inquiry

for which a ruling on a motion to dismiss or at the summary judgment

stage is often inappropriate. See Cocke, 817 F.2d at 1561. Yet, it is also

true that a plaintiff may plead himself out of court by alleging facts that

provide the employer with a bulletproof defense and foreclose application

of equitable tolling. See Menominee Indian Tribe of Wis. v. United States,

___ U.S. ___, ___, 136 S. Ct. 750, 755–56 (2016).

      2. Discovery rule. We first consider whether Mormann is entitled

to relief through application of the discovery rule.     The district court,
                                    38

among other things, found that Mormann was less than diligent in

investigating his potential claim. It seems unlikely, however, that inquiry

with IWD regarding the reason Mormann did not get the job would have

produced a declaration from IWD that Wahlert was concerned that

Mormann was considering retirement, thereby at least suggesting a

discriminatory animus.     If a job applicant brings up the subject,

employers are not likely to admit a motivation that would expose the

employer to a claim of unlawful discrimination.       Employers will likely

prefer that such preferences remain secret. See Reeb, 516 F.2d at 931.

      We also decline to rely on the district court’s causation analysis—

namely, that the decision was really made by a committee and not by

Wahlert.   In the employment cases and literature, the effort to thrust

responsibility for employment decisions from a potentially biased

decision maker onto other actors is referred to as “the cat’s paw” defense.

See Tim Davis, Beyond the Cat’s Paw: An Argument for Adopting a

“Substantially Influences” Standard for Title VII and ADEA Liability,

6 Pierce L. Rev. 247, 248 (2007).        The plaintiff clearly pled Wahlert

influenced the decision, and the deposition of Wahlert only indicates that

at the time the recommendation to hire Pals was submitted to her, it was

not necessary to discuss the reason why Mormann was not her choice for

the position. The deposition of Wahlert leaves open the possibility that

she communicated her preferences at other times and places in a fashion

that influenced the committee’s deliberations.

      Yet, under the undisputed facts established at the hearing,

Mormann was aware he was not hired for the position in March 2014. It

is also undisputed he was aware of his own age and his qualifications for

the position of deputy workers’ compensation commissioner. Further, in

his briefing before the district court, Mormann conceded he was aware
                                            39

that the person hired for the position is a younger person and did not

raise lack of knowledge of Pals’s age in the district court as an issue in

the proceeding. Nonetheless, Mormann claims he did not know the true

reason he did not get the job until he learned of the Wahlert deposition in

March 2015.

       Under these circumstances, we conclude the defendant has met its

burden of showing that Mormann is not entitled to avail himself of the

discovery rule to save his case from dismissal for failure to comply with

the filing requirements of Iowa Code section 216.15(13). It appears in

March 2014, Mormann had knowledge of facts sufficient to support a

prima facie case of age discrimination. He knew he was a member of the

protected class, he was qualified for the job, he suffered an adverse

employment action, and a younger worker was hired to replace him. In

short, he knew facts that provided him with a prima facie case of age

discrimination. See Bearden, 529 F.3d at 832 (finding inference of age

discrimination if plaintiff can prove younger person hired for job); Lewis,

591 F.3d at 1038 (same).

       When a plaintiff is on notice of a prima facie case of discrimination,

the discovery rule is not available to toll the running of the filing

requirements in civil rights statutes. See Dring, 58 F.3d at 1329; Pruet

Prod., 784 F.2d at 1279–80. Later discovery of facts may make the claim

stronger, 5 but even under a relatively robust approach to the discovery

        5The plaintiff maintains the later discovery of the statements by Wahlert that

she was concerned about Mormann’s retirement plans supports an age discrimination
claim in this case. In an excerpt from her deposition in the Godfrey matter, Wahlert
stated concern about “[t]he statements that [Mormann] had made to people and during
his interview that he thought he was going to retire.” In Ware v. Howard University,
Inc., the court found age discrimination where the vice president told the plaintiff that
he had not been considered for the promotion “because he was too close to retirement.”
816 F. Supp. 737, 745–46 (D. D.C. 1993). In Hawley v. Dresser Industries, Inc., the
Sixth Circuit held a jury could infer that the defendants fired the plaintiff because of his
age when the plaintiff’s boss testified that he believed plaintiff was close to retirement
                                           40

rule, the knowledge of facts sufficient to make a prima facie case of

discrimination is sufficient to trigger the running of the filing limitations.

Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1988) (holding

plaintiff need not know all evidence in order for the filing limitation to

begin to run). As a result, the district court did not err in refusing to

apply the discovery rule to toll the running of the filing limitation in this

case.

        However, even when a party has knowledge of a prima facie case,

misrepresentations by the employer that the employer knows or should

have known would lull the employee into inaction may provide a vehicle

to toll the running of the filing limitation under the equitable estoppel

doctrine. Pruet Prod., 784 F.2d at 1280.

        3. Equitable estoppel. We now turn to the question of equitable

estoppel. We begin by noting that before the district court, Mormann did

not attack the March 7, 2014 letter from Godfrey as containing

affirmatively misleading statements and as part of the scheme of IWD to



_____________________
and would not mind being terminated, and in light of the fact that younger employees
who were also discharged were placed in other positions in the organization. 958 F.2d
720, 723–24 (6th Cir. 1992). In Schaffner v. Hispanic Housing Development Corp., the
court held a reasonable jury could conclude that there was direct evidence of age
discrimination when, among other things, the plaintiff’s immediate supervisor averred
that she was directed to downgrade the plaintiff’s performance reviews because the
plaintiff was close to retirement. 76 F. Supp. 2d 881, 881, 883 (N.D. Ill. 1999). Another
federal district court found there was a genuine issue of material fact as to whether age
was a motivating or determinative cause in the plaintiff’s firing when, among other
things, the plaintiff asserted that management told him to investigate which other
employees were close to retirement in an effort to reduce staff. Martin v. Gen. Elec. Co.,
891 F. Supp. 1052, 1058 (E.D. Penn. 1995). Other courts, however, have held
employers are entitled to consider the long term potential of employees when making
business decisions. See Cox, 163 F.3d at 498; Roberts v. Design & Mfg. Servs., Inc., 167
F. App’x 82, 84–85 (11th Cir. 2006); Woythal, 112 F.3d at 247; Young v. Hobart W. Grp.,
897 A.2d 1063, 1071 (N.J. Super. Ct. App. Div. 2005). We take no position on if and
when statements related to potential retirement may be considered evidence of age
discrimination.
                                          41

hide the real reason for his discharge. 6 Instead, Mormann simply noted

that “nothing contained within this letter gave the plaintiff the

impression that he was passed over for the position based upon his age.”

Before the district court, the theory was one of omission—IWD omitted

from the letter a statement of the true reason for his discharge, namely,

that he was not hired because of age discrimination. The concealment of

the asserted bias of Wahlert is the only equitable estoppel claim

preserved for appellate review. See Meier v. Senecaut, 641 N.W.2d 532,

540 (Iowa 2002).

       An omission theory of equitable estoppel, however, simply is

insufficient in the context of this case. Unlike cases involving intentional

and material misstatements in which the employer knew or should have

known would cause the employee to delay filing a complaint, omission

cases cut too deeply into the 300-day statutory requirement. As noted

by the reasoning in Cada, the 300-day limitation cannot be tolled simply

because the defendant omits to state that age discrimination was the

true reason for dismissal.         See 920 F.2d at 451.           Allowing equitable

estoppel to apply where an employer merely remains silent regarding its

discriminatory motive would essentially eliminate the 300-day filing

       6The  caselaw considering whether equitable estoppel may be invoked when an
employer offers encouragement about other jobs in a letter announcing an adverse
employment action is mixed. For example, in Franci v. Avco Corp., the court found a
letter that suggested that the employee might be eligible for other jobs might toll the
filing requirement because the employee should not be expected to jeopardize his
chances by filing a complaint. 538 F. Supp. 250, 254 (D. Conn. 1982); see also Labus
v. Navistar Int’l Transp. Corp., 740 F. Supp. 1053, 1058–59 (D. N.J. 1990) (filing
requirement equitably tolled where employee might have been lulled into deferring filing
of complaint by employer’s representations that he would look for another position for
employee within the company). On the other hand, in Cole v. CBS, Inc., the court
rejected equitable tolling where the employer encouraged a terminated employee to
explore other employment opportunities within the company. 634 F. Supp. 1558, 1564
(S.D.N.Y. 1986); see also Sharpe v. Phila. Hous. Auth., 693 F.2d 24, 26–28 (3d Cir. 1982)
(rejecting equitable tolling where terminated employee was permitted to appeal
employer’s decision to terminate and employer held out hope of reemployment).
                                    42

limitation. Instead, in order to state a claim for equitable estoppel in the

context of a filing limitation, the plaintiff must show an affirmative

misrepresentation that the employer knew or should have known would

delay the filing of a timely claim.        Mormann did not meet this

requirement and, as a result, the district court did not err in dismissing

the petition.

      IV. Conclusion.

      For the above reasons, the judgment of the district court in this

case is affirmed.

      AFFIRMED.

      All justices concur except Hecht, J., who takes no part.
