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, 1996 
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 posttermination 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 j ob-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. § 623? 

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 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 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. 1996), 920 P.2d 108, 110, 

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 (l989), 240 Mont. 405, 407, 784 P.2d 915, 916. 

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 ~.zd 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 
claim 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.;