NO. 96-261
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
DUANE C. MARTENS, MARK PINKERTON,
DONALD P. BAILEY, individually and
as Public Officers, and ROSEBUD COUNTY,
a Montana Political Subdivision,
Defendants and Respondents.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. D. Peterson; Peterson & Schofield, Billings,
Montana
For Respondents:
Steven J. Lehman; Crowley, Haughey, Hanson, Toole
& Dietrich, Billings, Montana
Submitted on Briefs: August 15, 1996
Decided: November 14, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Patricia Mysse (Mysse) appeals from the order of the Sixteenth
Judicial District Court, Rosebud County, granting Defendants'
motion for summary judgment on all counts. We affirm.
We consider the following issues on appeal:
1. Did the District Court err in dismissing Mysse's due
process claims under 42 U.S.C. § 1983?
2. Did the District Court err in dismissing Mysse's
wrongful discharge claim under the Montana Wrongful Discharge Act?
3. Did the District Court err in dismissing Mysse's age
discrimination claim under 29 U.S.C. § 623?
4. Did Mysse raise any valid tort claims or a valid claim
for breach of the covenant of good faith and fair dealing?
Factual and Procedural Backqround
Mysse's claims arise out of her termination from her position
as Coordinator for the Rosebud County Council on Aging. Mysse was
originally hired by Rosebud County in 1972 for a six-month pilot
program to provide transportation for senior citizens in Rosebud
County. She was 49 years old when she was hired. At the end of
the six-month period she was hired to continue the program for an
indefinite term. In 1978 she received her job description from an
organization entitled Action for Eastern Montana which works with
senior citizens in the seventeen counties situated in eastern
Montana. She operated under two separate job descriptions, one for
Coordinator and one for Transportation.
The Coordinator job description contained a requirement that
Mysse create a transportation schedule. It also required the
employee to carry out other assignments at the direction of the
County Commission on Aging. The Transportation job description
contained a requirement that the employee make the schedule
available to the public through newspaper and radio advertising.
Both job descriptions required that the employee possess an
acceptable mode of transportation, a Montana chauffeur's license,
and freedom to travel. Both job descriptions contained methods for
mileage reimbursement.
For nineteen years Mysse transported senior citizens in her
own automobile upon request. She never transported more than three
senior citizens at one time. She never established a schedule but,
instead, advertised in the paper that transportation was available
upon request and arranged transportation accordingly.
In 1990, the Rosebud County Board of Commissioners (Board)
surveyed senior citizens on their transportation needs in
consideration of using grant monies to purchase a bus. Mysse
believed that the Senior Citizen program did not need the bus. She
voiced her opposition to the purchase of the bus to the Board.
Mysse later testified that she explained to the Board that she was
never able to get more than three persons together at any one time
and she believed that the bus, which held twelve people, could not
be used or coordinated effectively. Although the Board purchased
the bus in 1990, Mysse continued to transport senior citizens in
her own automobile without making a set schedule.
On January 24, 1992, at a Rosebud County Board meeting, the
Board informed Mysse about complaints received from senior citizens
regarding her non-use of the bus. At least one representative of
Action for Eastern Montana was at the meeting and indicated that if
the bus was not used for the transportation of seniors, the County
could lose the bus due to the fact that it was purchased with
specific grant monies. The Board informed Mysse that arranging a
bus schedule and driving the bus were conditions of her job in
general, and significant responsibilities of her job as
Transportation Coordinator.
Mysse was given an opportunity to respond at the meeting. She
stated that she would not drive the bus and that she would not
create a schedule as she did not think a schedule would work. The
Board told her she would either have to drive the bus or she would
lose her job. Thereafter, Mysse informed the Board she was
quitting. The Board then asked her to reconsider and to either try
driving the bus herself, or to find volunteers willing to drive the
bus.
The Board sent Mysse a letter the same day giving her notice
that she had to arrange a regular bus schedule and drive the bus or
that she would be discharged from her employment with Rosebud
County. The letter further informed her that she had three days to
respond either in person or by written response. Mysse did not
respond and on January 29, 1992, the Board sent her a termination
letter setting out the specific reasons for the dismissal. The
stated reasons were her refusal to comply with the terms of her job
description in scheduling and driving the senior citizen bus. The
letter informed her that if she thought she had been treated
unfairly she could discuss the problem further with the Board. If
no resolution could be reached she was to submit a written
complaint within five days and she would be afforded an opportunity
to be heard and produce witnesses. These procedures were pursuant
to Rosebud County's Personnel Policy on Grievance.
Mysse filed a complaint with the Board and approximately
thirty days after her termination she appeared at a post-
termination hearing. At the hearing Mysse alleged that her
termination was illegal and she requested monetary compensation for
the balance of her employment through her twenty-year milestone
with Rosebud County and for retirement benefits she would have
received if she had remained employed for twenty years. Mysse
presented various witnesses who testified to her exemplary service
throughout her years as Senior Citizen Coordinator. The record is
silent as to whether Mysse received any benefits beyond what she
earned in her nineteen years of employment with Rosebud County.
Mysse originally filed an age discrimination claim with the
Human Rights Commission. Subsequently, Mysse filed a complaint
with the Sixteenth Judicial District Court, Rosebud County,
alleging deprivation of rights or, in the alternative, wrongful
discharge. On September 21, 1993, the Human Rights Commission
dismissed her case and issued a right to sue letter. The District
Court granted Mysse's motion to file an amended complaint and Mysse
filed the amended complaint. The amended complaint alleged
deprivation of rights or, in the alternative, discrimination or, in
the second alternative, wrongful discharge
Rosebud County moved for summary judgment. The Honorable Joe
L. Hegel, Judge of the Sixteenth Judicial District Court, granted
Rosebud County's motion for summary judgment and dismissed all of
Mysse's claims. Judgment was entered February 8, 1996. Mysse
filed a timely Notice of Appeal.
All of Mysse's claims involve the issue of whether she was
terminated for good cause or because of some wrongful action on the
part of the Rosebud County Board of Commissioners. The District
Court granted summary judgment to the County and the individual
Board members because it found that Mysse was discharged for good
cause, namely, refusing to obey lawful directives of the Rosebud
County Board of Commissioners
Our standard of review in appeals from summary judgment
rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465,
470, 872 P.2d 782, 785. When we review a district court's grant of
summary judgment, we apply the same evaluation as the district
court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County
(1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903. In Bruner, we
set forth our inquiry:
The movant must demonstrate that no genuine issues of
material fact exist. Once this has been accomplished,
the burden then shifts to the non-moving party to prove,
by more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues
of fact do not exist, the court must then determine
whether the moving party is entitled to judgment as a
matter of law. We review the legal determinations made
by a district court as to whether the court erred.
Bruner, 900 P.2d at 903 (citations omitted).
Issues
1. Did the District Court err in dismissing Mysse's due
process claims under 42 U.S.C. 5 1983?
42 U.S.C. § 1983 provides a cause of action for persons
deprived of constitutional rights by another person acting under
color of state or federal law. The Fifth and Fourteenth Amendments
to the United States Constitution and Article 11, Section 17 of the
Montana Constitution, prohibit a government entity from depriving
persons of property without due process of law. Mysse claims that
she was deprived of her constitutional rights to due process when
the Board terminated her employment without a pre-termination
hearing. Before Mysse is entitled to due process for the loss of
her job she must first demonstrate that she has a protected
property interest in her employment.
In Boreen v. Christensen (1994), 267 Mont. 405, 884 P.2d 761,
this Court held that administrative regulations of the Department
of Military Affairs, mandating that disciplinary action including
discharge be taken only for "just cause," created a property
interest in employment for the discharged employee. This Court
limited its decision in Boreen to only those employees who "can
point to some written contract, state law, or regulation which
states or otherwise provides a specified term of employment and,
hence, a property interest in continued employment." Boreen, 884
P.2d at 770.
In the instant case the parties and the District Court have
assumed that the Rosebud County Personnel Policy created a property
7
interest for Mysse. Mysse was hired for an indefinite term after
the expiration of her six-month probationary period. The record
does not contain the Rosebud County Personnel Policy setting forth
the conditions of termination or discharge thus precluding this
Court from knowing whether the policy included a "just cause"
provision or other term of employment, which would give Mysse a
property interest in her employment with Rosebud County. Assuming,
arguendo, that Mysse possessed a property interest in her continued
employment, the next inquiry is whether she was afforded
constitutional due process before that property interest was taken
away.
In Boreen, this Court examined the United States Supreme
Court's analysis of the extent of process due a person who has been
terminated from their employment in which he or she enjoyed a
property interest. The Court in Cleveland Bd. of Educ. v.
Loudermill (19851, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494,
concluded that due process simply required oral or written notice
to the employee of the reasons for the termination, including an
explanation of the employer's evidence and the opportunity for the
employee to respond in "something less" than a full evidentiary
hearing before termination, coupled with a full post-termination
hearing "at a meaningful time." Loudermill, 470 U.S. at 545-46.
The Supreme Court went on to say that the pre-termination hearing
need not definitively resolve the propriety of the discharge. It
should be an initial check against mistaken decisions--essentially,
a determination of whether there are reasonable grounds to believe
that the charges against the employee are true and support the
proposed action. Loudermill, 470 U.S. at 545-46.
While Mysse has a right to due process, Boreen does not give
her a right to a full blown hearing prior to termination. The
undisputed facts show that Mysse was afforded written notification
of her impending discharge and a pre-termination hearing. At the
January 24, 1992, meeting with the Rosebud County Board of
Commissioners, Mysse was informed that she would have to create a
schedule for the bus and either drive the bus herself or find
volunteers to drive the bus or she would be fired. Mysse refused
to do either and stated that she would quit. The Commissioners
asked her to reconsider and advise them within a few days if she
would perform her job duties as requested. This meeting clearly
meets the Loudermill requirements of avoiding "mistaken decisions"
and ascertaining whether the complaints against the employee are
true.
Mysse also was provided a full evidentiary post-termination
hearing at which she was allowed to call witnesses on her behalf.
The District Court did not err in holding that the Rosebud County
Board of Commissioners afforded Mysse her constitutional rights to
due process upon termination of her employment. We therefore
affirm the dismissal of Mysse's 42 U.S.C. § 1983 claim.
2. Did the District Court err in dismissing Mysse's
wrongful discharge claim under the Montana Wrongful Discharge Act?
A discharge is wrongful under the Act only if:
(1) it was in retaliation for the employee's
refusal to violate public policy or for reporting a
violation of public policy;
9
(2) the discharge was not for good cause and the
employee had completed the employer's probationary period
of employment; or
(3) the employer violated the express provisions of
its own written personnel policy.
Section 39-2-904, MCA.
Mysse alleged that her discharge was wrongful under 5 39-2-
904(2), MCA. The Wrongful Discharge Act defines "good cause" as
"reasonable job-related grounds for dismissal based on a failure to
satisfactorily perform job duties . . . . " Section 39-2-903(5),
MCA .
In order for an employee to defeat a motion for summary
judgment on the issue of good cause, this Court requires the
employee to prove that the given reason for the discharge, such as
failure to perform the services the employee was hired to perform,
is a pretext and not the honest reason for the discharge. See
Coombs v. Gamer Shoe Co. (1989), 239 Mont. 20, 778 P.2d 885, and
Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 797 P.2d 232.
"Mere denial or speculation will not suffice, the non-moving party
must show facts sufficient to raise a genuine issue." Cecil, 797
P.2d at 235.
The Board determined that Mysse was not meeting her job
responsibilities as described in the job descriptions. She refused
to create a transportation schedule and she refused to drive the
bus. Although driving the bus was not made an explicit duty in
either of the job descriptions it was a reasonable directive given
by her employer as part of her overall responsibilities as
Transportation Coordinator. No evidence was presented indicating
that the purchase of the bus and the requirement that Mysse drive
the bus and set up a regular schedule was done for any reason other
than to attempt to better serve the senior citizens of Rosebud
County.
Mysse's allegations that she was made a "scapegoat" for the
County's improvident purchase of the bus is unsupported by any
factual basis in the record. Mysse may be inferring that her
termination saved money thereby vitiating the Board's "improvident"
decision to purchase the bus. However, the fact that the bus was
purchased with grant monies and the fact that the Board hired
another person to fill Mysse's position after her termination
defeats this inference. Mysse's allegations that she was made a
"scapegoat" for the County's improvident purchase of the bus is
"mere speculation" which does not rise to the level of a "pretext"
as defined in Cecil. Mysse's termination was the direct result of
her refusal to drive the bus or create a transportation schedule.
The Board terminated Mysse because she refused to satisfactorily
perform her job duties. This meets the Wrongful Discharge Act's
definition of good cause and therefore defeats Mysse's wrongful
discharge claim. The District Court did not err in dismissing
Mysse's wrongful discharge claim and we therefore affirm the
dismissal of this claim
3. Did the District Court err in dismissing Mysse's age
discrimination claim under 29 U.S.C. § 6 2 3 ?
According to the Age Discrimination in Employment Act (ADEA),
"it shall be unlawful for an employer . . . to discharge any
individual . . . because of such individual's age." 29 U.S.C. §
11
This Court defined the standard for analyzing summary
judgment motions on discrimination in Heiat v. Eastern Mont.
College (1996), 275 Mont. 322, 331-32, 912 P.2d 787, 793. The
plaintiff must first allege a prima facie case'. Following the
plaintiff's prima facie case:
If the employer comes forward with a legitimate non-
discriminatory reason, the plaintiff must then, in
addition to having alleged a prima facie case in the
complaint, produce evidence that establishes her prima
facie case as well as evidence which raises an inference
that the employer's proffered reason is pretextual.
Of course, this does not mean that a plaintiff in a
discrimination action always survives summary judgment
when the plaintiff calls the employer's proffered
explanation into question. Rather than having to
demonstrate with specific facts that the employer's
explanation "is a pretext," she need only introduce
evidence which raises an inference that the employer's
proffered reason is pretextual. To create a genuine
issue of material fact as to pretext, the plaintiff must
not only introduce evidence from which a reasonable
person could infer that she is qualified, she must also
introduce evidence that casts doubt on the defendant's
contention that there was a legitimate business
justification for defendant's action.
Heiat, 912 P.2d at 793 (citations omitted; emphasis added)
Assuming that Mysse alleged a prima facie case of age
discrimination in her complaint, Rosebud County, as the moving
party on a summary judgment motion, must prove that it had a
legitimate nondiscriminatory reason for terminating Mysse.
Even though Mysse may have felt that the purchase of the bus
in 1990 was a pretext for terminating her due to her age, the Board
had legitimate reasons to purchase the bus. The Board conducted a
survey of senior citizens and discovered a need for greater
transportation opportunities for the seniors. Moreover, so long as
the employer's proffered reason for an adverse employment decision
is both honest and nondiscriminatory, its business judgment, no
matter how erroneous, cannot be challenged in an age discrimination
action. Morton v. Associated Dry Goods Corp. (S.D. Ind. 1992), 792
F.Supp. 1136.
The Board asked Mysse, in her capacity as Transportation
Coordinator, to establish a schedule and drive the bus. Mysse
refused to do either. Failure to satisfactorily perform job duties
(in Mysse's case failure to perform certain duties at all) is a
legitimate nondiscriminatory reason for termination of an employee.
See Schultz v. General Elec. Capital Corp. (7th Cir. 1994), 37 F.3d
329; Frazer v. KFC Nat'l Management Co. (D.C. Ga. 1980), 491
F.Supp. 1099 (holding that the ADEA neither prevents employer's
from changing job responsibilities of older employees nor does it
allow older employees to walk out on their jobs and sue the
employer for age discrimination because they dislike their changed
job responsibilities).
It is undisputed that Mysse was terminated because she refused
to follow the directive of the Board to drive the bus and because
she refused to perform the explicit duty of setting and advertising
a regular schedule for the bus. As the moving party on a motion
for summary judgment, Rosebud County met its burden of offering a
legitimate nondiscriminatory reason for the discharge.
According to the Heiat test, in order to survive a summary
judgment motion in a discrimination case, Mysse had to establish a
prima facie case of age discrimination. To establish a prima facie
case of age discrimination under the ADEA, a plaintiff must either
provide direct evidence of discrimination or produce evidence that:
(1) she was in the protected age group; (2) she was
performing her job satisfactorily; (3) she was
discharged; and (4) she was replaced by a substantially
younger person. [Citations omitted.]
Tonack v. Montana Bank of Billings (19931, 258 Mont. 247, 253, 854
P.2d 326, 330. In the present case Mysse failed to make out a
prima facie case of age discrimination. Although she was in the
protected age group pursuant to the ADEA when she was discharged,
(Mysse was 69 when she was terminated) and replaced by a younger
person, she was not performing her job satisfactorily. Since Mysse
was not able to establish that she was performing her job
satisfactorily, she failed to make out a prima facie case of age
discrimination.
Furthermore, Mysse failed to raise an inference that Rosebud
County's proffered reason was a pretext for the discharge. The
only inference of "pretext" offered by Mysse is that the Board
"attempted to make her the scapegoat for their improvident
spending." Not only was the bus purchased with grant monies, but
the Board hired another person to fill Mysse's position after
Mysse's termination. This Court fails to see any logical nexus
between the Board's "improvident" purchase of the bus and its
decision to discharge Mysse . This "scapegoat1'theory does not
raise an inference of pretext as to the Board's contention that it
fired Mysse for legitimate business reasons (Mysse's refusal to
perform reasonable job duties) . See Heiat, 912 P.2d at 793.
Mysse also alleges that previous to the January 24, 1992,
14
meeting with the Board, one Commissioner asked her if she were
going to retire. Mysse concedes that this question arose during
casual conversation. This question alone does not give rise to an
inference that she was fired for her age rather than fired for
refusing to drive the bus. &g Bolton v. Scrivener, Inc. (10th
Cir. 1994), 36 F.3d 939 (finding that a single comment from a
supervisor calling an employee an "old £art1'did not show pretext
in the employer's decision not to rehire the employee absent a
showing of nexus between those comments and the employer's decision
not to rehire).
Mysse further alleges that she overheard other senior citizens
discussing that she may be too old to drive the bus and that the
Board should hire a man to drive the bus. The truthfulness of
these allegations is irrelevant as the senior citizens had no part
in the decision to discharge Mysse from her job. Age related
comments by non-decision makers are not material in showing that an
employer's actions are based on age discrimination. Snoey v.
Advanced Forming Technology, Inc. (D. Colo. 1994), 844 F.Supp.
1394.
Even if Mysse had made out a prima facie case of age
discrimination, she failed to raise an inference that the Board's
decision to discharge her for refusing to drive the bus was a
"pretext" for discharging her because of her age. We hold that the
District Court did not err in granting Rosebud County's motion for
summary judgment and therefore we affirm the dismissal of Mysse's
age discrimination claim.
4. Did Mysse raise any valid tort claims or a valid claim
for breach of the covenant of good faith and fair dealing?
Mysse alleges that the District Court erred by failing to
consider or decide other claims and torts alleged by her in her
amended complaint. Mysse claims that her complaint sets forth
various tort claims including breach of the covenant of good faith
and fair dealing, emotional stress, harassment, humiliation,
impairment of reputation, pain and suffering, and punitive damages.
Rosebud County and the individual defendants claim that Mysse
did not raise any of these issues as separate claims in her amended
complaint, except possibly the claim for breach of the covenant of
good faith and fair dealing which, according to Rosebud County, is
prohibited from being raised as a separate claim under the Montana
Wrongful Discharge Act, § 39-2-902, MCA. Rosebud County further
alleges that Mysse's failure to bring these issues to the District
Court's attention in her brief in opposition to their summary
judgment motion, or at any other time, forbids her from bringing
the issues before this Court for the first time on appeal.
While this Court follows the general rule that complaints are
to be construed in a light most favorable to the plaintiff,
Kleinhesselink v. Chevron, U.S.A. (Mont. 1 9 9 6 ) , 9 2 0 P.2d 1 0 8 , 1 1 0 ,
53 St.Rep. 668, this Court also recognizes that:
a complaint must state something more than facts which,
at most, would breed only a suspicion that plaintiffs
have a right to relief. Liberality does not go so far as
to excuse omission of that which is material and
necessary in order to entitle relief.
Treutel v. Jacobs ( l 9 8 9 ) , 2 4 0 Mont. 4 0 5 , 4 0 7 , 7 8 4 P.2d 9 1 5 , 9 1 6 .
Mysse's amended complaint alleged the following violations:
16
procedural and substantive due process rights as
guaranteed by the Fourteenth Amendment of the United
States Constitution, the Constitution of the State of
Montana as contained in Article 11, S3, Inalienable
Rights, S4 Individual Dignity, and S17 Due Process of
Law.
Mysse alleges, in her opening brief to this Court, that the above
violations stated in her amended complaint, encompass the "Montana
constitutional tort claims" that she raises on appeal. While
Montana adheres to the notice pleading requirements of "a short and
plain statement of the claim showing that the pleader is entitled
to relief . . ." (Rule 8(a), M.R.Civ.P.), the claim must give
notice to the other party of the facts which the pleader expects to
prove, and the facts must disclose the presence of all the elements
necessary to make out a claim. See Butte Country Club v.
Metropolitan Sanitary & Storm Sewer Dist. No. 1 et al. (1974), 164
Mont. 74, 77, 519 P.2d 408, 409; Story Gold Dredging Co. v. Wilson
(1935), 99 Mont. 347, 42 P.2d 1003; Union Bank & Trust Co. v.
Himmelbauer et al. (1923), 68 Mont. 42, 216 P. 791; accord Jones v.
Community Redevelopment Agency of the City of Los Angeles (9th Cir.
1984), 733 F.2d 646 (interpreting Federal Rule 8(a)(2),
.
Fed.R.Civ.P.)
Mysse in no way indicated in the complaint how her discharge
from Rosebud County formed the basis of any of the specific torts
she refers to in her appellate brief and claims to have raised in
the complaint. Mysse's indication that certain of her federal and
state constitutional rights were violated did not give the
defendants notice that Mysse was claiming intentional infliction of
emotional distress, tortious interference with contract, or any
17
other tort claim. We hold, therefore, that Mysse's complaint did
not adequately aver the tort claims of intentional infliction of
emotional distress, tortious interference with employment, or any
other tort claim. Because Mysse did not adequately raise the
claims of intentional infliction of emotional distress, tortious
interference with contract, or any other tort claim in her
complaint or at any time to the District Court, these claims are
barred from being raised for the first time on appeal. See Deist
v. Wachholz (1984), 208 Mont. 207, 678 P.2d 188.
The only claim set out specifically in the complaint which
Mysse alleges the District Court improperly ignored is the claim
for breach of the implied covenant of good faith and fair dealing.
Rosebud County alleges that Mysse's claim of breach of the covenant
of good faith and fair dealing was either necessarily a part of her
claim under 42 U.S .C. § 1983, or if asserted as an independent
claim, that it was prohibited by the Montana Wrongful Discharge
From Employment Act (WDFEA), § § 39-2-901 et seq., MCA.
The WDFEA is the exclusive remedy for a wrongful discharge in
Montana. See § 39-2-902, MCA. The WDFEA provides that no claim
for discharge may arise from common-law remedies such as tort or
express or implied contract. See § 39-2-913, MCA. However, the
WDFEA does not limit a claimant's right to plead an independent
cause of action in conjunction with a claim under the Act. See
Beasley v. Semitool, Inc. (1993), 258 Mont. 258, 853 P.2d 84
(holding that an employee's claim for breach of the covenant of
good faith and fair dealing arising out of compensation-related
agreements was not barred by the WDFEA because the claims were not
for damages caused by an asserted wrongful discharge); see also
Dagel v. City of Great Falls (1991), 250 Mont. 224, 819 ~ . z d
186
(holding that the employee's claims for breach of the covenant of
good faith and fair dealing, accruing after the effective date of
the WDFEA, and arising out of the discharge, were barred by the
WDFEA) .
As in Daqel, Mysse alleges no separate circumstances apart
from her discharge to support a claim of breach of the implied
covenant of good faith and fair dealing. Mysse's only complaint
against Rosebud County that could constitute a breach of the
implied covenant of good faith and fair dealing is that she was
wrongfully discharged after nineteen years of satisfactory
performance. This claim is not separate and distinct from her
claim of wrongful discharge. Consequently, Mysse's claim for
breach of the implied covenant of good faith and fair dealing is
barred by § 39-2-913, MCA, of the WDFEA. Furthermore, because
Mysse did not allege any damages arising from this breach separate
from the damages arising out of her discharge, the complaint is
insufficient to indicate a separate claim. See Beaslev, 853 P.2d
at 86. Therefore, the District Court did not err in granting
summary judgment.
Conclusion
The District Court's summary judgment order dismissing Mysse's
42 U.S.C. § 1983 claim, the wrongful discharge claim, and the age
discrimination claim is affirmed. We further hold that Mysse's
c l a i m f o r a breach of t h e implied covenant of good f a i t h and f a i r
dealing was not only insufficiently pled but is barred by § 39-2-
913, MCA, of t h e WDFEA.
W concur.;
e