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 

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

Filed: 

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 42 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 plaintiffts motion 

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 2 are therefore 

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 Sen. (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). 

- Id. at 129. 

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 

Faf 1s 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 ~ist. 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 lllegislative act" 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 722, 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 preAct 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 plaintifffs motion, 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. A11 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 

2 1 
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