Dagel v. City of Great Falls

No. 91-069

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

CARLENE DAGEL,
Plaintiff and Appellant,
v.
CITY OF GREAT FALLS,
Defendant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Elizabeth A. Best, Best Law Offices; Great Falls,
Montana
For Respondent:
J. Dennis Moreen, Chronister, Driscoll & Moreen,
P.C.; Helena, Montana

Submitted on briefs: June 6, 1991

Filed:
ocr r; ii !%I Decided: October 10, 1991

Ci"
Justice Fred J. Weber delivered the Opinion of the Court.

Plaintiff, Carlene Dagel, brought this action alleging
harassment by her supervisor which forced her to resign from her
job. She sued the City of Great Falls under theories of violation
of constitutional rights under 42 U.S.C. 1 1983, wrongful
discharge, and both negligent and intentional infliction of
emotional distress. Plaintiff also filed a motion to join Charlis
Manzer, her supervisor, as a party defendant; and also filed a
motion for summary judgment on a number of grounds. The City also
filed a motion for summary judgment. The District Court for the
Eighth Judicial District, Cascade County, denied plaintiff's
motions and granted summary judgment in favor of the City of Great
Falls. Plaintiff appeals. We affirm in part and reverse in part.
The issues are:
1. Did the District Court properly conclude that the City
of Great Falls is not liable under 4 2 U.S.C. 1 1983?
2. Did the District Court properly hold that the City of
Great Falls is immune from plaintiff's state law claims under 5 2-
9-111, MCA?
3. Did the District Court properly conclude that plaintiff
was covered by a written collective bargaining agreement at the
time of her discharge, thus preempting suit under the Wrongful
Discharge From Employment Act?
4. Did the District Court properly conclude that plaintiff's
claims of violation of the implied covenant of good faith and fair
dealing and for infliction of emotional distress are barred by the
2
Wrongful Discharge From Employment Act?
5. Did the District Court properly deny plaintifftsmotion
to join Ms. Manzes under Rules 19 and 20, M.R.Civ.P.?
Plaintiff, Carlene Dagel, was hired on August 16, 1984, by the
City of Great Falls Public Works Department (City) as a "Clerk TI1'.
Plaintiff's duties included taking phone messages, doing reports,
billing, filing and some typing for various divisions within the
Public Works Department. Her immediate supervisor was Charfis
Manzer (Ms. Manzer). Ms. Manzer was an administrative assistant
who also supervised one or two other clerks and a secretary.
Ms. Manzer disciplined plaintiff for poor performance of her
duties with disciplinary actions ranging from oral counselling to
suspension for a period of days. Plaintiff maintains that only one
reprimand was contained in her personnel file when she was
terminated but that Ms. Manzer kept other information concerning
plaintiff in her own separate file. In November 1987, plaintiff
resigned her employment following the last of these disciplinary
actions because she felt her treatment by Ms. Manzer was causing
her emotional problems. Plaintiff stated under oath:
.
. . it was three years, 1 have been so frustrated, and
I have tried five times to commit suicide within the last
few years. . .
. And I decided, well, hey maybe that
isn't the way that should be. If she's getting to me
that much, maybe I should just get out of there. And so
I drew up my letter of resignation after the last
reprimand she gave me. I just felt that was so far out
of line, and it just really, really upset me.
During most of her employment plaintiff was a member of a
union, the Montana Public Employeesl Association, a collective
bargaining unit, which had contracted with the City. The union
contract with the City expired on June 30, 1986; plaintiff resigned
in November 1987; and a new contract was executed December 1, 1987.
Both plaintiff and the union attempted to file a grievance
under the procedure set forth in the union contract. The City
refused that request, as set forth in the following letter
submitted as an exhibit in the summary judgment proceeding:
City of GREAT FALLS Montana
P.O. BOX 5021
December 17, 1987
Mr. Jim Adams
Montana Public Employees Association
P 0 Box 5600
Helena MT 59604
Re: Carlene Daqel
Dear Mr. Adams:
I have your letter of December 11, 1987, where for the first time
you attempt to assert the grievance procedure in this matter under
a contract negotiated with the City.
In response, it is the City's position that the union lacks
jurisdiction to initiate the grievance procedure for the following
reasons:
1. The dates of Dagel's suspension, November 3,
4, 5, 1987, occurred after the expiration of
the former contract which terminated on June
30, 1986 and before the date of the current
contract, December 1, 1987. In other words,
there was no contract and no grievance
procedure in effect or available to the union
members during the dates of suspension.
2. Dagel voluntarily terminated her employment
with the City by letter dated November 4,
1987. By terminating her employment on
November 4, 1987, Dagel severed her rights
under any grievance procedure of a collective
bargaining agreement or otherwise. No
question was raised on the disciplinary
procedure prior to Dagel's termination letter
of November 4, 1987 and we submit neither she
 nor the union has jurisdiction to pursue such
a claim now that she has voluntarily
terminated her employment.
As explained in previous correspondence, we deem the City's
disciplinary action to be proper under the circumstances and for
the reasons stated above, consider the matter closed.
Sincerely,
s/ Hal Million
Hal Million
Acting Public Works Director
Subsequently, plaintiff filed this action in District Court to
recover damages for wrongful discharge, violation of her
constitutional rights, and intentional and negligent infliction of
emotional distress. Plaintiff claimed that throughout her
employment with the City, she was subjected to continual harassment
by Ms. Manzer in the form of "purported counsellings and
reprimands".
Plaintiff moved for summary judgment and to join Ms. Manzer,
as a defendant. The City responded by filing a cross-motion for
summary judgment. The District Court adopted the City's proposed
findings of fact and conclusions of law and granted the City's
motion for summary judgment. Plaintiff moved to amend judgment or
grant a new trial, which motion was denied. This appeal followed.
I
Did the District Court properly conclude that the City of
Great Falls is not liable under 42 U.S.C. 5 1983?
Plaintiff sought recovery under 42 U.S.C. 5 1983 which

provides :
Every person who, under color of any statute, ordinance,
5
 regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress. ...
The District Court concluded:
Carlene's allegations in her complaint are, in effect,
that the defendant City of Great Falls is responsible for
any alleged acts of Charlis Manzer because it is the
employer. In other words, that the City is liable under
Respondeat Superior. It is settled that a municipality
cannot be liable for money damages in an action under 42
U.S.C. 1 1983 based upon the theory of Respondeat
Superior. Monell v. New-~ork. 436 U.S.-658, 694 (1978):
City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985).
Plaintiff's 1983 claims aaainst the Citv are therefore
2

without merit.
...
If a plaintiff can establish the existence of a
widespread practice that, although not authorized by
written law or express policy, is so permanent and well
settled as to constitute a custom or usage with the force
of law a municipality may be liable for the actions of
its employees. Praprotnik, suDra. 99 L. Ed. at 120.
However, plaintiff has failed to allege either in her
complaint or in her briefs any such widespread practice
regarding harassment of employees.
Plaintiff has no valid cause of action under 42
U.S.C. 5 1983 against the defendant City of Great Falls.
Plaintiff maintains that the City was responsible for the
individual acts of its agent, Ms. Manzer, and adopted them as its
own. She also maintains that under 5 2-9-305, MCA, governmental
employees have a responsibility beyond respondeat superior. She
further argues Ms. Manzer was a policy maker for the City.
The City maintains that plaintiff's 5 1983 claim must fail
because the facts established by the plaintiff demonstrate that the
City's liability under g 1983 is based upon respondeat superior,
which is not a valid basis for recovery under 5 1983. We agree.
 The United States Supreme Court has held that respondeat
superior or vicarious liability will not attach under 5 1983.
Monell v. New York City Dept. of Social S e n . (l978), 436 U.S. 658;
City of Canton, Ohio v. Harris (1989), 489 U.S. 378. In Monell the
Supreme Court held that 5 1983 authorizes suit "for constitutional
deprivations visited pursuant to governmental 'custom1 even though
such a custom has not received formal approval through the body's
official decisionmaking channelsn. Monell, 436 U.S. at 690-691.
In City of Saint Louis v. Praprotnik (1988), 485 U.S. 112,
the Court further explained Monell, outlining four guiding
principles for holding a municipality liable under 5 1983:
(1) Municipalities may be held liable under 5 1983 only for
acts for which the municipality itself is actually responsible -
those which the municipality has officially sanctioned or ordered;

(2) Only officials who have final policy making authority may

by their actions subject the government to 1 1983 liability;
(3) Whether a particular official has final policymaking
authority is a question of state law; and
(4) The challenged action must have been taken pursuant to a
policy adopted by the official or officials responsible under state
law for making policy in that area of the city's business.
The City of Saint Louis Court went on to state:
If the mere exercise of discretion by an employee could
give rise to a constitutional violation, the result would
be indistinguishable from respondeat superior liability.
If, however, a city's lawful policy makers could insulate
the government from liability simply by delegating their
policymaking authority to others, 5 1983 could not serve
its intended purpose.
 [A] plaintiff may be able to prove the existence of a
widespread practice that, although not authorized by
written law or express municipal policy, is so permanent
and well settled as to constitute a custom or usage with
the force of law. ...
[Tlhe authority to make municipal policy is necessarily
the authority to make final policy. When an official's
discretionary decisions are constrained by policies not
of that official's making, those policies, rather than
the subordinate's departures from them, are the act of
the municipality. Similarly, when a subordinate's
decision is subject to review by the municipality's
authorized policymakers, they have retained the authority
to measure the official's conduct for conformance with
their policies. If the authorized policymakers approve
a subordinate's decision and the basis for it, their
ratification would be chargeable to the municipality
because their decision is final.
Citv of Saint Louis, 485 U.S. at 126, 127. (Citations omitted.)
However,
[slimply going along with discretionary decisions made
by one's subordinates, ... is not a delegation to them
of the authority to make policy. (Emphasis added).

- at 129.
Id.
Such is the case here. Plaintiff contends that Ms. Manzer
harassed her and that Ms. Manzer discussed some of her disciplinary
actions of plaintiff with her superiors. Plaintiff has failed to
present facts establishing any delegation of policymaking authority
to Ms. Manzer. At most the facts presented by the plaintiff
establish that the City went along with the discretionary decisions
made by Ms. Manzer. Further, plaintiff presented facts to
establish that she was singled out by Ms. Manzer and harassed
unfairly. Such facts contradict her contention that the behavior
of Ms. Manzer was policy on the part of the City. We agree with
the conclusion of the District Court that the factual basis for
plaintiff's complaint under 5 1983 is founded on a theory of

respondeat superior which is not a sufficient basis for recovery
under 5 1983.
We hold that the District Court was correct in concluding that
the City is not liable under 42 U.S.C. 5 1983.
IT
Did the District Court properly hold that the City of Great
Faf1s is immune from plaintiff's state law claims under 5 2-9-111,
MCA?

The District Court held that the city is immune from all state
law claims under Peterson v. Great Falls School ~ i s t .No. 1 (1989),
237 Mont. 376, 733 P.2d 316, and Eccleston v. Third Judicial Dist.
Ct. (1990), 240 Mont. 44, 783 P.2d 363. Plaintiff maintains that
the City is not immune under § 2-9-111, MCA, and even if it was
that such immunity was waived under this Court's holding in Crowell
v. School Dist. No. 7 of Gallatin County (Mont. 1991), 805 P.2d
522, 48 St-Rep. 81, by the City's purchase of liability insurance.
Section 2-9-111, MCA, was significantly amended by the 1991
Legislature. On May 24, 1991, Governor Stephens signed into law
Senate Bill No. 154. The purpose of the act is stated as:
AN ACT CLARIFYING THAT STATUTORY LEGISLATIVE IMMUNITY
EXTENDS ONLY TO LEGISLATIVE BODIES OF GOVERNMENTAL
ENTITIES AND ONLY TO LEGISLATIVE ACTIONS TAKEN BY THOSE
BODIES; CLARIFYING THAT GOVERNMENTAL ENTITIES ARE NOT
IMMUNE UNDER THE LEGISLATIVE IMMUNITY STATUTE FOR
NONLEGTSLATIVE ACTIONS; CLARIFYING THAT THE ACQUISITION
OF INSURANCE DOES NOT WAIVE IMMUNITY; AMENDING SECTION
2-9-111, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE
AND A RETROACTIVE APPLICABILITY DATE.
Section 2-9-111, MCA (1991), now reads:
2-9-111. Immunity from suit for legislative acts and
omissions. (1) As used in this section:

(a) the term "governmental entity" means only the state,
counties, municipalities, schooldistricts, and any other
local government entity or local political subdivision
vested with legislative power by statute;

(b) the term legislative bodyv means only the
legislature vested with legislative power by Article V
of The Constitution of the State of Montana and that
branch or portion of any other local governmental entity
or local political subdivision empowered by law to
consider and enact statutes, charters, ordinances,
orders, rules, policies, resolutions, or resolves;
(c)(i) the term lllegislativeact" means:
(A) actions by a legislative body that result in
creation of law or declaration of public policy;
(B) other actions of the legislature authorized by
Article V of The Constitution of the State of Montana;
or
(C) actions by a school board that result in
adoption of school board policies pursuant to 20-3-
323 (1);

(ii) the term legislative act does not include
administrative actions undertaken in the execution of a
law or public policy.
(2) A governmental entity is immune from suit for a
legislative act or omission by its legislative body, or
any member or staff of the legislative body, engaged in
legislative acts.
(3) Any member or staff of a legislative body is immune
from suit for damages arising from the lawful discharge
of an official duty associated with legislative acts of
the legislative body.
(4) The acquisition of insurance coverage, including
self-insurance or group self-insurance, by a governmental
entity does not waive the immunity provided by this
section.
(5) The immunity provided for in this section does not
extend to any tort committed by the use of a motor
vehicle, aircraft, or other means of transportation.
The act was given retroactive applicability within the meaning of
g 1-2-109, MCA, to causes of action that have not been reduced to
final judgment on or before the effective date of May 24, 1991.
The amended statute controls in this case.
Section 2-9-111, MCA (1991), significantly changedthe statute
and therefore modified the theories expressed in the various
immunity cases as well as in Crowell with regard to insurance.
First, under the new statute, a legislative body is not immune from
the negligent acts of its employees. 3 2-9-lll(1) (c), MCA (1991).
Second, the purchase of insurance does not waive immunity. 3 2-
9-111(4), MCA (1991).
Thus, the pertinent question here is whether harassment by a
supervisor is considered a "legislative actt'. Clearly it is not.
Plaintiff's claim of constructive discharge is not related to
action by a legislative body which resulted in the creation of law
or declaration of public policy under I 2-9-lll(1) (c)(i)(A), MCA
(1991).
The District Court's decision predated the adoption of the
amended statute. Because of the retroactive applicability of the
immunity statute to the present case, we conclude the City is not
immune from plaintiff's state law claims under 5 2-9-111, MCA
(1991). We reverse on this issue.
I11

Did the District Court properly conclude that plaintiff was
covered by a written collective bargaining agreement at the time
of her discharge, thus preempting suit under the Wrongful Discharge
From Employment Act?
plaintiff contends that because the City took the position in
its letter of December 17, 1987, that there was Ifno contract and
no grievance procedure in effect or available to the union members
during the dates of suspension," the City should be precluded from
arguing on appeal that the wrongful discharge claim of the
plaintiff was barred and preempted because she was a union member
covered by a collective bargaining agreement. The District Court
did not rule upon plaintiff's contention. The District Court did
adopt the theory of the City that the suit under the Wrongful
Discharge from Employment Act was barred.
Clearly the City's position that there was no contract and no
grievance procedure available to the plaintiff contradicts its
later position that there was a collective bargaining agreement
which bars her right to sue. Our question is whether such
contradictory positions are barred under statute or case law.
We have reviewed the Montana case law with regard to equitable
estoppel as well as the applicable statute on conclusive
presumption. Unfortunately our cases have not been consistent in
consideration of either the principles of equitable estoppel or
conclusive statutory presumption.
In Howeth v. D.A. Davidson and Co. (19731, 163 Mont. 355, 517
P.2d 7 2 2 , this Court stated the following with regard to the
equitable principle of estoppel:
The estoppel and waiver contention is grounded upon
the equitable principle of estoppel. That doctrine is
set out in section 93-1301-6 (3) , R.C.M. 1947, which
provides :
 "Whenever a party has, by his own
declaration, act or omission, intentionally
and deliberately led another to believe a
particular thing true, and to act upon such
belief, he cannot, in any litigation arising
out of such declaration, act, or omission, be
permitted to falsify it."
This Court has further defined estoppel and its
essential elements in Hustad v. Reed, 133 Mont. 211,
223, 321 P.2d 1083: . ..
The Court then described six essential elements which it concluded
were necessary to constitute an equitable estoppel. We do not set
forth the six essential elements in detail because the cases have
not consistently followed them.
In In re Marriage of Adams v. Adams (1979), 185 Mont. 63, 604
P.2d 332, we set forth five principles which were stated to be
required in order that equitable estoppel would exist. Again we
will not set forth these elements in detail as the cases have not
consistently applied them.
In Sweet v. Colborn School Supply (1982), 196 Mont. 367, 639
P.2d 521, this Court set forth six essential elements which it held
to be necessary to constitute an equitable estoppel, without
specific reference to the elements described in Howeth and Adams.
Sweet describes the elements of equitable estoppel as follows:
Six essential elements have been held necessary to
constitute an equitable estoppel:
"(1) there must be conduct, acts, language, or
silence amounting to a representation or a
concealment of material facts; (2) these facts
must be known to the party estopped at the
time of his conduct, or at least the
circumstances must be such that knowledge of
them is necessarily imputed to him; (3) the
truth concerning these facts must be unknown
 to the other party claiming the benefit of the
estoppel at the time it was acted upon by him;
(4) the conduct must be done with the
intention, or at least with the expectation,
that it will be acted upon by the other party,
or under the circumstances that it is both
natural and probable that it will be so acted
upon; (5) the conduct must be relied upon by
the other party, and, thus relying, he must be
led to act upon it, and (6) he must in fact
act upon it in such a manner as to change his
position for the worse." (Citations omitted.)
the aim of eliminating confusion, we expressly reverse the
holdings on the essential elements of equitable estoppel as
contained in Howeth and Adams, and expressly reaffirm and readopt
the six essential elements of equitable estoppel as above set forth
in Sweet. Unfortunately Sweet failed to refer to the statutory
provision described in the following paragraph which also should
have been considered.
In 1983 the legislature adopted general revisions of the laws
relating to evidence and as a part of those revisions, amended 5
26-1-601, MCA (1989), to read in pertinent part as follows:
26-1-601. List of conclusive presumptions. The
following presumptions are conclusive:
(1) the truth of a declaration, act, or omission of
a party, as against that party in any litigation arising
out of such declaration, act or omission, whenever he
has, by such declaration, act, or omission, intentionally
led another to believe a particular thing true and to act
upon such belief; ...
We are required to consider the foregoing statute on the issues
before us.
In Kenneth D. Collins Agency v. Hagerott (1984), 211 Mont.
303, 310, 684 P.2d 487, 490, this Court set forth the following
general principles regarding estoppel:
 Estoppel is a principle of equity .. . equity will grant
relief sought when in view of all the circumstances to
deny it would permit one of the parties to suffer a gross
wrong at the hands of the other party who brought about
the condition. . . . Estoppel is not favored and will
only be sustained upon clear and convincing evidence .
We caution the user that the foregoing general statement of
estoppel may be properly subject to the holdings of this case with
regard to the elements of equitable estoppel as well as the above
quoted statutory provision.
In Safeco Insurance Co. v. Ellinghouse (1986), 223 Mont. 239,
725 P.2d 217, this Court made specific reference to the above cited
5 26-1-601, MCA, and pointed out that Safeco had failed to mention
the controlling statute.
We come now to the present case. We conclude that 1 26-1-
601, MCA (1989), and the Sweet statement of the six essential
elements of equitable estoppel are the controlling principles of
law to be applied. We have previously quoted the position of the
City in its December 17, 1987 letter. The deposition of the
plaintiff establishes her position regarding the letter and her
reliance upon that letter. In analyzing the provisions of g 26-
1-601(), MCA (1989), we conclude that the City's letter of
December 17, 1987, constituted a declaration or act, which
intentionally led the plaintiff to believe that the facts set forth
in the letter were true and caused her to act upon that belief.
As a result, under the statute, the truth of the dated letter has
been established conclusively as against the City. The
requirements of 9 26-1-601(1), MCA (1989), have been met.
 We next analyze the facts of this case to determine if the six
essential elements of equitable estoppel as set forth in Sweet have
been met. We conclude as follows: (1) there was conduct by the
City which amounted to a representation of a material fact; (2)
the facts set forth in the December 17 letter were known to the
City as the writer of the letter; (3) the truth concerning the
December 17 letter was unknown to the plaintiff at the time; (4)
the City acted with the intention that the plaintiff in turn would
also act; (5) the plaintiff relied upon the letter of December 17
and was led to do so by the wording of the letter; and (6) she in
fact acted in such a manner as to change her position for the
worse. We conclude that the facts in this case clearly meet the
required six elements of equitable estoppel contained in Sweet.
We reverse the District Court on this issue. We hold that the
City may not contend the plaintiff was covered by a written
collective bargaining agreement at the time of her discharge. As
a result we hold that the plaintiff may proceed with her suit under
the Wrongful Discharge from Employment Act.
IV
Did the District Court properly conclude that plaintiff's
claims of violation of the implied covenant of good faith and fair
dealing and for infliction of emotional distress are barred by the
Wrongful Discharge From Employment Act?
The District Court held that plaintiff's claims for violation
of the covenant of good faith and fair dealing and for infliction
of emotional distress are not allowed by the Wrongful Discharge
From Employment Act. It also held that even if her claims could
otherwise have survived summary judgment, the City was immune from
such claims under 5 2-9-111, MCA (1989). The District Court
dismissed those claims.
Under Issue I1 of this opinion, we concluded that the City
was not immune from the plaintiff's claims under amended 5 2-9-
111, MCA (1991). As a result, the immunity theory is not
controlling on this issue.
The District Court was correct in holding that no claim for
discharge may arise from tort or express or implied contract under
the provisions of the Wrongful Discharge From Employment Act.
5 39-2-913, MCA, Section 39-2-904, MCA, provides that a
discharge is wrongful only if:
(1) it was in retaliation for the employee's refusal to
violate public policy or for reporting a violation of
public policy;
(2) the discharge was not for good cause and the
employee had completedthe employer's probationary period
of employment; or
(3) the employer violated the express provisions of its
own written personnel policy.
The City maintains that plaintiff failed to properly state a
cause of action under the Wrongful Discharge From Employment Act.
Plaintiff's complaint contained the following pertinent
allegations:
6. That Plaintiff's immediate supervisor, Charlis
Manzer, continually and repeatedly harassed Plaintiff and
treated her in a different fashion than she treated other
employees in like circumstances, and created such an
environment that the Plaintiff found it so intolerable
that voluntary termination was her only reasonable
alternative.
 7. That the City discharged Plaintiff without warning,
without written notice or valid reason, and contrary to
the City's own articulated policies and procedures.
8. By reason of Plaintiff's satisfactory service and
the performance of her duties, her employer's assurances,
policies, and procedures, salary increases, and the
absence of criticism of her performance, there was an
implied promise by the City that Plaintiff's employment
would not be terminated and she would not be discharged
except for just cause. In terminating Plaintiff's
employment as alleged, the City wrongfully, unreasonably,
and tortiously violated its implied promise and its duty
implied in the employment relationship to deal fairly and
in good faith with Plaintiff. (Emphasis added).
As plaintiff argues, the Complaint clearly states a cause of
action for claims under the Wrongful Discharge From Employment Act.
She also sets forth a claim for breach of the implied covenant of
good faith and fair dealing and for infliction of emotional
distress.
Section 39-2-905(3), MCA, provides that under the Act there
is no right to damages for wrongful discharge for pain and
suffering, emotional distress, or punitive damages. Thus,
plaintiff cannot bring claims for breach of the implied covenant
>
of good faith and fair dealing and emotional distress under the
Act. However, plaintiff claims that many of the acts occurred
prior to July 1987, the effective date of the Wrongful Discharge
From Employment Act. It may be that plaintiff will desire to amend
her complaint in order to more clearly allege acts which occurred
prior to the effective date of the Act, which would allow a pre-
Act claim for those damages otherwise excluded by the Act.
We hold that the District Court incorrectly concluded that
plaintiff's claims of violation of the implied covenant of good
faith and fair dealing and for infliction of emotional distress
which occurred prior to the effective date of the Wrongful
Discharge From Employment Act were barred by the Act. We reverse
on this issue and remand to the District Court, pointing out that
the District Court may properly allow the plaintiff to amend her
complaint to conform to the facts as she contends them to be,
pursuant to Rule 15 (b), M.R. Civ.P.

Did the District Court properly deny plaintiff's motion to
join Ms. Manzer under Rules 19 and 20, M.R.Civ.P.?
Plaintiff sought to join as a defendant her supervisor, Ms.
Manzer, pursuant to Rules 19 and 20, M.R. Civ.P. The District Court
denied plaintifffsmotion, holding:
7. Plaintiff attempts to avoid summary judgment against
her by moving pursuant to Rule 19 of the Montana Rules
of Civil Procedure to join [Ms.] Manzer as a party
defendant. She has filed no proposed amended complaint
naming Manzer as defendant and her argument to do so does
not change the basis of her claims. In fact it appears
plaintiff continues to affirmatively argue that Manzer
was acting within the course and scope of her employment.
Plaintiff argues that since the Montana Tort Claims Act
indemnified a sued employee who acts within the course
and scope of employment, Manzer can be joined without
prejudice to her and that this will save plaintiff's
claims.
Rule 20(a), M.R.Civ.P., provides:
All persons may join in one action as plaintiffs if they
assert any right to relief jointly, severally, or in the
alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to
all these persons will arise in the action. A 1 1 persons
may be joined in one action as defendants if there is
asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising
out of the same transaction, occurrence or series of
transactions or occurrences and if nay question of law
or fact common to all defendants will arise in the
action. ...
As plaintiff points out, she has filed a separate complaint against
Ms. Manzer in her official and personal capacities. Clearly, both
actions arise out of the same "transaction, occurrence, or series
of transactions or occurrences". In the interest of judicial
economy, plaintiff should be allowed to join Ms. Manzer as a party
defendant, individually and officially.
We hold that the District Court improperly denied plaintiff's
motion to join Ms. Manzer under Rules 19 and 20, M.R.Civ.P.
We affirm the holding of the District Court that the City is
not liable under 42 U.S.C. 1 1983. We reverse as to the remaining
issues and remand for further proceedings consistent with this
opinion.

We Concur:

Justices
Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority opinion. However,
I cannot agree with all that is said therein.
Specifically, I do not feel it is necessary to reconcile the
past 18 years of inconsistent decisions on the subject of equitable
estoppel, and in the process reverse two prior decisions, when that
issue was never briefed, argued, nor raised by the parties.
The majority's dissertation on the history of equitable
estoppel is especially unnecessary to this opinion in light of
5 26-1-601, MCA, which seems to clearly resolve the third issue on
appeal.
Defendant argues, and the District Court concluded, that
plaintiff's wrongful discharge suit was preempted by a collective
bargaining agreement which defendant now contends was in effect at
the time plaintiff terminated her employment. However, as pointed
out by the majority, when plaintiff sought to avail herself of the
grievance procedure provided for under the collective bargaining
agreement, defendant denied that such an agreement existed and
refused her the opportunity to do so. Hal Million, the acting
public works director for the City of Great Falls, plainly stated
that:
[Tlhere was no contract and no grievance procedure in
effect or available to the union members during the dates
of suspension.
Because of defendant's representation as set forth above,
plaintiff was denied the opportunity to pursue the grievance
21
process and as a result filed this litigation. Therefore, the
truth of Mr. Million's earlier statement is conclusively presumed
pursuant to 5 26-1-601, MCA, and there was no grievance procedure
available to claimant which could preempt her claim under the
Wrongful Discharge From Employment Act.
I agree with the result arrived at by the majority. However,
I would wait for another day, after the issue had been raised and
briefed, before trying to reconcile and rewrite Montana's decisions
on the law of equitable estoppel.
 October 10. 1991

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Elizabeth A. Best
Best Law Offices
P.O. Box 2114
Great Falls, MT 59403

J. Dennis Moreen
Chronister, Driscoll & Moreen
208 No. Montana Ave.
Helena, MT 59601

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA

BY:
Deput