IN THE COURT OF APPEALS OF IOWA

No. 22-0801

Filed February 22, 2023

DAVID ALAN SCHMITZ,

Plaintiff-Appellant,

vs.

NEVADA COMMUNITY SCHOOL DISTRICT and DR. STEVE GRAY, 

SUPERINTENDENT,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Story County, Amy M. Moore, Judge.

A former school district employee appeals the district court’s dismissal of 

his whistleblower claim. AFFIRMED.

Kellie L. Paschke and Kelly Verwers Meyers of Skinner & Paschke, PLLC, 

West Des Moines, for appellant.

Benjamin P. Roach and Haley Y. Hermanson of Nyemaster Goode, P.C., 

Des Moines, for appellees.

Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
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CHICCHELLY, Judge.

David Schmitz appeals the dismissal of his claim for violation of Iowa’s 

whistleblower statute, codified at Iowa Code section 70A.29 (2019). The district 

court granted a motion for summary judgment filed by the defendants: the Nevada 

Community School District and its superintendent, Dr. Steve Gray. Schmitz 

contends summary judgment was improper because there were genuine issues of 

material fact as to the validity of the parties’ separation agreement and the reasons 

for his termination. Finding the separation agreement was valid and enforceable, 

we affirm the district court’s order.

I. Background Facts and Proceedings.

The school district hired Schmitz to serve as its food service director in July 

2014. Schmitz’s responsibilities involved menu planning, food ordering, inventory, 

supervising employees, and meeting the budget set for the district’s nutrition 

department. While Schmitz inherited a deficit in the nutrition fund budget, the 

parties dispute whether that deficit worsened during his tenure. 

In October 2016, Dr. Gray met with Schmitz and sent a follow-up letter 

detailing his concerns with the increasing budget deficit. Schmitz’s performance 

evaluation for the 2016–17 school year also indicated that corrective action on the 

budget deficit was needed. In a December 2017 meeting, Schmitz committed to 

cutting $168,000 from the 2019 fiscal year budget. Schmitz’s 2017–18 

performance evaluation indicated concerns not only with the budget, but also with 

the overall morale of food service staff regarding Schmitz’s leadership.

In October 2018, the district received an anonymous tip alleging Schmitz

had been stealing from the food services program for over two years. The district 
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contacted the Nevada Police Department for investigation. The state auditor’s 

office also became involved due to the potential theft of public goods. The auditor’s 

office found that it could not determine whether any items were improperly 

removed or if collections were not properly deposited because inadequate records 

were maintained. As a result, the police department determined it would probably 

not be able to prove theft beyond a reasonable doubt and closed its case in 

November 2019.

While the theft investigation was still ongoing, Dr. Gray and the school board 

met in February 2019 to discuss the nutrition fund deficit and need for new 

leadership in the food service department. Despite the overall budget deficit, there 

was progress being made with a nearly $40,000 surplus incurred during the 2017–

18 school year. However, on March 1, Dr. Gray informed Schmitz of the district’s 

decision to terminate his employment and presented him with a letter outlining his 

options: (1) allow the letter to serve as two weeks’ notice of his termination, 

pending a vote by the school board at its next meeting on March 11, or (2) accept 

a separation agreement and be placed on paid administrative leave through the 

remainder of his current contract (through June 30, 2019). The district maintains 

that it opted not to wait until the end of Schmitz’s current contract because it wished 

to participate in the most common hiring time for school employees and use those 

final months of the school year to transition leadership. 

Schmitz signed and returned the separation agreement on Monday, March 

4, thereby releasing any claims he might have against the district or its employees 

arising out of his employment. Schmitz was represented by an attorney during the 

theft investigation but did not seek out any legal counsel prior to signing the 
4

agreement. He received his salary and benefits through the remaining four months 

of his term.

On October 6, 2020, Schmitz filed a petition against the district and Dr. 

Gray, alleging (1) wrongful termination in violation of public policy, (2) violation of 

Iowa’s whistleblower statute, codified at Iowa Code section 70A.29, and 

(3) defamation. The defendants filed a motion for summary judgment in February 

2022. The parties agreed to an unreported hearing, after which the district court 

granted summary judgment on all three counts and dismissed Schmitz’s petition 

in its entirety. Schmitz timely appeals the ruling only as to the second count—that 

of his statutory claim for whistleblower protection.

II. Review.

We review the district court’s ruling on the defendants’ motion for summary 

judgment for correction of errors at law. Wermerskirchen v. Canadian Nat’l R.R., 

955 N.W.2d 822, 827 (Iowa 2021). We view the facts in the light most favorable 

to the nonmoving party, and

[t]he burden is on the moving party to demonstrate the nonexistence 

of a material fact question. However, the nonmoving party may not 

rely on mere allegations in the pleadings but must set forth specific 

facts showing a genuine issue for trial. If the nonmoving party cannot 

generate a prima facie case in the summary judgment record, the 

moving party is entitled to judgment as a matter of law.

Id. (citation omitted). “The requirement of a ‘genuine’ issue of fact means the 

evidence is such that a reasonable jury could return a verdict for the nonmoving 

party.” Fees v. Mut. Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992) (citation 

omitted). “An issue of fact is ‘material’ only when the dispute is over facts that 
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might affect the outcome of the suit, given the applicable governing law.” Id. 

(citation omitted).

III. Discussion.

Schmitz argues his separation agreement is voidable because he executed 

it under economic duress. See id. at 58 (“A contract is voidable by the victim ‘if the 

party’s manifestation of assent is induced by an improper threat by the other party 

that leaves the victim no reasonable alternative.’” (citation omitted)). If valid and 

enforceable, the unambiguous terms of the separation agreement fully release the 

school district and Dr. Gray from any and all claims arising from Schmitz’s 

employment with the district, which would bar Schmitz’s statutory claim for 

whistleblower protection.

“Economic duress can serve as a basis for invalidating a release when the 

releasor involuntarily accepted the terms of the release, the circumstances allowed 

only that alternative, and such circumstances were the results of the coercive acts 

of the releasee.” Id. (citation omitted). As to the first element, Schmitz asserts his 

acceptance of the agreement was involuntary due to the parties’ unequal 

bargaining power and the terms being one-sided, unreasonable, and oppressive. 

See In re Marriage of Shanks, 758 N.W.2d 506, 515 (Iowa 2008) (explaining in the 

context of unconscionability that “gross inequality of bargaining power, together 

with terms unreasonably favorable to the stronger party, . . . may show that the 

weaker party had no meaningful choice, no real alternative, or did not in fact assent 

or appear to assent to the unfair terms”). Schmitz points out the agreement forced 

him to (1) forfeit his available vacation, personal days, and sick leave, (2) forfeit all 

pay and benefits remaining under his contract if he obtained other employment
6

during its term, and (3) waive his right to seek unemployment benefits after the 

term concluded.

1

However, Schmitz acknowledges that he read and understood the contract, 

did not seek to negotiate its terms or request additional time, and returned the 

agreement two days prior to its deadline. Schmitz stated that he chose to return 

the agreement early and not attempt to contact an attorney because he knew he 

was going to sign it regardless in order to be paid. Therefore, despite the short 

timeframe afforded, Schmitz’s “state of mind upon signing the contract cannot be 

attributed to the defendants.” Hosier v. Hosier, No. 00-1225, 2001 WL 1451137, 

at *5 (Iowa Ct. App. Nov. 16, 2001). Although we caution parties against providing 

minimal opportunity to consider an agreement and seek legal counsel, these 

particular circumstances do not support a finding that Schmitz’s assent was 

involuntary. See Fees, 490 N.W.2d at 59–60 (finding no fact issue generated on 

the voluntariness of an executed settlement agreement when the releasor 

understood its unambiguous terms, received substantial consideration, and 

consulted with an attorney); State v. Baldon, 829 N.W.2d 785, 801 (Iowa 2013) 

1 Schmitz asserts the requirement that he waive his right to seek unemployment 

benefits violates Iowa Code section 96.15 and thereby renders the contract void. 

Although true that section 96.15 voids “[a]ny agreement by an individual to waive, 

release, or commute the individual’s rights to benefits or any other rights under this 

[unemployment compensation] chapter,” Schmitz failed to secure a decision on 

this point before the district court. He asserted this statutory violation only in 

passing to support his claim for economic duress but not to void the contract 

outright. The district court did not address the validity of the contract in this context, 

and Schmitz filed no motion to reconsider and secure such a ruling. See Meier v. 

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of 

appellate review that issues must ordinarily be both raised and decided by the 

district court before we will decide them on appeal.”). Accordingly, we find this 

argument is not preserved for our review.
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(“We appreciate that the bargain under a contract can, at times, involve a choice 

between two unpalatable alternatives, which does not defeat the voluntariness of 

the consent.”).

Schmitz furthermore admits that he chose the separation agreement over 

the alternative option to treat the letter as two weeks’ notice of termination, pending 

a hearing before the school board. Whether accepting the letter as a notice of 

termination constituted a reasonable alternative may be answered by turning to 

the merits of Schmitz’s whistleblower claim.2 As the district court found, summary 

judgment is proper here because the record is devoid of any indication that 

Schmitz’s termination by the school district was in any way related to his 

communication with the Iowa Department of Education. In fact, the email 

communications from the department, which were sent to Schmitz and copied Dr. 

Gray: (1) reference audit findings, (2) express thanks to Schmitz and Schaeffer for 

meeting to follow up on an administrative review of the National School Lunch 

Program, and (3) discuss a corrective action plan instituted based on incorrect 

charges discovered during the administrative review. The details of the corrective 

action plan do not suggest any accusations of wrongdoing but include steps to 

increase transparency from Schmitz and Schaeffer. Schmitz claims that he 

2 Although we opt to address the whistleblower claim here, we leave open the 

question of whether such a statutory violation, and the opportunity to pursue a legal 

remedy, could be a reasonable alternative in the context of economic duress. 

Here, accepting termination would have conferred Schmitz’s contractuallyobligated two-weeks’ notice, and the record does not detail Schmitz’s financial 

state. See Fees, 490 N.W.2d at 60 (noting that the question of reasonable 

alternatives “is a practical one under which we take in the exigencies of the victim, 

and the mere availability of a legal remedy is not controlling if it will not afford 

effective relief to one in the victim’s circumstances”). 
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reached out to the department first and met with representatives alone, but there 

is no evidence of such interaction, and Schmitz says he did not tell anyone else at 

the district about the meeting. 

Although Schmitz claims he disclosed budget inaccuracies and financial 

mismanagement to the department, there is no record evidence to indicate the 

district or its employees knew or should have known that Schmitz’s 

communications were anything more than regular communication pertaining to 

standard administrative procedure. Schmitz argues the district’s belief as to why 

Schmitz was disclosing information is irrelevant and immaterial, but it is necessary 

to connect Schmitz’s disclosure with a retaliatory action. Because this nexus is an 

essential element to the whistleblower statute, we affirm the district court’s ruling 

in this regard. See Iowa Code § 70A.29 (“A person shall not discharge an 

employee . . . as a reprisal for a disclosure of any information . . . .” (emphasis 

added)). With that matter resolved, we cannot say there is a genuine dispute of 

material fact as to whether the circumstances allowed any other reasonable 

alternative. 

Finally, “[t]o satisfy the third element, the record must show the plaintiffs’

financial troubles were the result of the defendants’ wrongful or coercive acts.” 

Fees, 490 N.W.2d at 60. Since we have already addressed that the termination 

was not a violation of Iowa’s whistleblower statute, and an employer exercising its 

right to terminate an employee on two weeks’ notice is not a wrongful act, there is 

no need to consider whether the defendants’ acts caused financial trouble for 

Schmitz. Accordingly, Schmitz has failed to demonstrate a fact issue on the third 

element of economic duress.
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Because Schmitz needed to generate a material fact issue as to all three 

elements of economic duress and failed to do so, we find the district court properly 

held the settlement agreement was valid and constituted a complete defense to 

Schmitz’s claim. 

Although Schmitz failed to establish any element of economic duress, we 

note the agreement’s enforceability is further supported by Schmitz’s ratification. 

Schmitz accepted the benefits of the contract and filed suit over one year later 

without any interceding act to repudiate the agreement. See Turner v. Low Rent 

Hous. Agency, 387 N.W.2d 596, 599 (Iowa 1986) (“[A]n alleged victim of duress 

may not obtain part of the benefits of an agreement and disavow the rest.”). “A 

party, who is entitled to avoid a contract on the ground of duress should repudiate 

it promptly after the duress has been removed.” Hosier, 2001 WL 1451137, at *5 

(citation omitted). “Silence and acquiescence for a considerable period thereafter, 

action in accord with it, and acceptance of benefits under it, amount to a 

ratification.” Id. (citation omitted). No reasonable fact-finder could conclude that 

Schmitz timely repudiated the agreement. Because his actions amount to 

ratification, Schmitz waived any claim for economic duress he may have otherwise 

had. We affirm the ruling of the district court with respect to the validity of the 

separation agreement and do not reach the underlying whistleblower claim 

released by the parties’ contract. See Terry v. Dorothy, 950 N.W.2d 246, 250–51 

(Iowa 2020) (finding underlying claim extinguished by application of general 

contract principles to parties’ settlement agreement).

AFFIRMED.