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

Filed: Submitted on Briefs: August 15, 1996 Decided: November 14, 1996Justice W. William Leaphart delivered the Opinion of the Court.

Patricia Mysse (Mysse) appeals fromthe orderof 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 wrongfuldischarge claimunder the Montana Wrongful DischargeAct? 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 forbreach of the covenant of good faith and fairdealing? Factual and Procedural Backqround Mysse's claims arise out of her termination from her position

as Coordinator for the Rosebud County Council onAging. Mysse was originally hired by Rosebud County in 1972 for a six-monthpilot 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-monthperiod she was hired to continue the program for an indefinite term. In 1978 she received her job description froman organization entitled Action for Eastern Montana which works with senior citizens in the seventeen counties situated in eastern Montana. She operated under two separate jobdescriptions,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 jobdescriptions contained methods for mileage reimbursement. For nineteen years Mysse transported senior citizens in her own automobileupon request. Shenever transported more than three senior citizensat one time. Shenever establisheda schedulebut, 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 programdid not need thebus. 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 threepersons together at any one time and shebelieved that the bus,which held twelvepeople, 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 complaintsreceived from senior citizens regarding her non-useof the bus. At least one representative of Action forEastern Montana was at themeeting and indicated that if the bus was not used for the transportationof seniors,the County could lose the bus due to the fact that it was purchased with specific grant monies. The Board informedMysse 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 givenan opportunity to respond at themeeting. 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 shewould either have to drive the bus or shewould lose her job. Thereafter, Mysse informed the Board she was quitting. The Board then asked her to reconsiderand to either try driving thebus herself,or to find volunteers willing to drive the bus. The Board sent Mysse a letter the same day giving her notice that shehad to arrange a regularbus scheduleand drive the bus or that she would be discharged from her employment with Rosebud County. The letter further informedher that shehad threedays 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 reasonswere her refusal to complywith the terms of her jobdescription in schedulingand driving the senior citizen bus. The letter informed her that if she thought she had been treated unfairly she could discuss the problem furtherwith the Board. If

no resolution could be reached she was to submit a written complaint within five days and shewould 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 posttermination hearing. At the hearing Mysse alleged that her termination was illegaland sherequestedmonetary compensation for the balance of her employment through her twenty-yearmilestone 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 grantedMysse's motion to fileanamended complaintandMysse filed the amended complaint. The amended complaint allegeddeprivationof rights or,inthe alternative,discriminationor, in the second alternative,wrongful discharge Rosebud County moved for summary judgment. The HonorableJoe 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 forgood cause orbecause of somewrongful 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.2d782,785. When we reviewa 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, theburden then shifts to the non-movingparty to prove, by more thanmere 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 Fifthand Fourteenth Amendments to theUnited States ConstitutionandArticle 11,Section 17of the Montana Constitution,prohibit a government entity from depriving persons of propertywithout 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. InBoreen 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 theRosebud CountyPersonnel Policy createdaproperty 7interest for Mysse. Mysse was hired for an indefinite term after the expiration of her six-monthprobationary 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 inher employment with RosebudCounty. Assuming, arguendo,thatMysse possessed aproperty interest inher continued employment, the next inquiry is whether she was afforded constitutional dueprocess before thatproperty interest was taken away.In Boreen, this Court examined the United States Supreme Court's analysis of the extent of process due apersonwho hasbeen 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.2d494, 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-terminationhearing need not definitively resolve the propriety of the discharge. It should be aninitial checkagainstmistakendecisions--essentially,

a determinationof whether there are reasonable grounds to believethat 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 affordedwrittennotification 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 requirementsof 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 affordedMysse 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 claimunder the Montana Wrongful DischargeAct? 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 employeehad completed theemployer'sprobationary period of employment; or (3) theemployerviolated theexpress provisions of its own writtenpersonnel 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 "reasonablejob-relatedgrounds for dismissal based ona 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 forthe discharge, such as failure to perform the services the employeewas 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 Cecilv.Cardinal Drilling Co. (1990),244Mont. 405,797 P. 2d 232. "Meredenial or speculationwill not suffice, the non-movingparty must show facts sufficient to raise a genuine issue." Cecil, 797 P.2dat 235. The Board determined that Mysse was not meeting her job responsibilitiesasdescribed in the jobdescriptions. 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 TransportationCoordinator. No evidence was presented indicatingthat the purchase of the bus and the requirement that Mysse drive the bus and set up a regular schedulewas 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 savedmoney therebyvitiating theBoard'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 "merespeculation"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. § 623? According to theAge Discrimination inEmploymentAct (ADEA), "it shall be unlawful for an employer



### . . . to discharge any individual



### . . . because of such individual's age.

### " 29 

### U.S.C. § 11This Court defined the standard foranalyzing 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 nondiscriminatory 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 aswell as evidencewhich raisesan inference that the employer's proffered reason ispretextual. 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 ofmaterial factas topretext, theplaintiff must not only introduce evidence from which a reasonable person could infer that she is qualified, shemust 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 (citationsomitted; 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 apretext for terminatingher 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 asthe employer's profferedreason for an adverse employment decision is both honest and nondiscriminatory, its business judgment, no matterhow erroneous,cannotbe challenged inanagediscrimination action. Mortonv.AssociatedDry 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 jobduties

(inMysse's case failure to perform certain duties at all) is a legitimate nondiscriminatory reasonfortermination of an employee. See Schultzv.General Elec. Capital Corp. (7thCir. 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 responsibilitiesof older employees nor does it allow older employees to walk out on their jobs and sue the employer forage discriminationbecause theydislike their changed job responsibilities)



### . It isundisputed thatMysse was terminatedbecause she refused to follow the directive of the Board to drive the bus and because sherefused toperform the explicit duty of settingand 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 discriminationcase,Mysse had to establish 

### a prima facie caseof agediscrimination. Toestablish aprima faciecase of age discriminationunder the ADEA, aplaintiff must either provide direct evidenceofdiscrimination 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. [Citationsomitted.] 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,

(Myssewas 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, 14meeting 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 showingof nexus between those comments and the employer's decision not to rehire). Mysse further allegesthat 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 commentsby non-decisionmakers arenotmaterial 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, impairmentof reputation,painand suffering,andpunitive damages. Rosebud County and the individual defendants claim that Mysse did not raiseany of these issues as separate claims inher amended complaint,except possibly the claim for breach of the covenant of good faith and fair dealing which,according to Rosebud County, is prohibited frombeing raised as a separate claimunder 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 issuesbefore 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, Kleinhesselinkv. Chevron,U.S.A. (Mont.1996), 920 P.2d 108, 110, 53 St.Rep. 668, this Court also recognizes that:

a complaintmust state something more than facts which, at most, would breed only a suspicion that plaintiffs have a right to relief. Liberalitydoes not go so faras to excuse omission of that which is material and necessary in order to entitle relief. Treutel v. Jacobs (l989), 240 Mont. 405, 407, 784 P.2d 915, 916. Mysse's amended complaint alleged the followingviolations: 16procedural 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 inher amended complaint, encompass the "Montana constitutional tort claims" that she raises on appeal. While Montana adheres to the notice pleading requirementsof "ashort 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 otherparty of the factswhich thepleader expects to prove,and the factsmust disclose thepresence of all the elements necessary to make out a claim. See Butte Country Club v. Metropolitan Sanitary & Storm SewerDist.No. 1 et al. (1974),164 Mont. 74, 77,519 P.2d408,409;Story Gold Dredging Co. v.Wilson

(1935),99 Mont. 347, 42 P.2d 1003; Union Bank & Trust Co. v. Himmelbauer et al. (1923),68Mont. 42,216 P. 791;accord Jonesv. Community RedevelopmentAgency of the City of LosAngeles (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 inher appellatebrief 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 defendantsnotice thatMyssewas claiming intentional inflictionof emotional distress, tortious interference with contract, or any 17other 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 forbreach of the implied covenant of good faith and fair dealing. Rosebud County alleges thatMysse's claimof breach of the covenant of good faithand fairdealingwas 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 EmploymentAct (WDFEA), §§ 39-2-901et seq.,MCA. The WDFEA is the exclusive remedy fora 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-relatedagreements was not barred by the WDFEA because the claimswere not for damages caused by an asserted wrongful discharge); see also Dagel v. City of Great Falls (1991),250 Mont. 224, 819 ~.zd 186 (holdingthat 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 TheDistrictCourt's summary judgmentorderdismissingMysse's 42 U.S.C. § 1983 claim, the wrongful discharge claim,and the age discrimination claim is affirmed. We further hold that Mysse'sclaim for a breach of the implied covenant of good faith and fair 

### dealing was not only insufficiently pled but 

### is barred by § 39-2- 913, MCA, of the WDFEA.

We concur.;