Hawkins v. Peoples Federal Sav. & Loan Ass'n, 79404

• Citation: 155 Mich.App. 237,399 N.W.2d 484
• Decision Date: 02 February 1987
• Docket Number: No. 79404,79404
• Court: Court of Appeal of Michigan (US)
• Parties: , 107 Lab.Cas. P 55,796 Durwood HAWKINS, Plaintiff-Appellee, v. PEOPLES FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant-Appellant.

Page 484

399 N.W.2d 484

155 Mich.App. 237, 107 Lab.Cas. P 55,796

Durwood HAWKINS, Plaintiff-Appellee, v. PEOPLES FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant-Appellant.

No. 79404.

Court of Appeals of Michigan.

Submitted Oct. 7, 1985.

Decided Oct. 7, 1986.

Released for Publication Feb. 2, 1987.

Allen, Friedman & O'Toole (by Raymond L. Feul and Roger J. O'Toole), Bloomfield, for plaintiff-appellee.

Dykema, Gossett, Spencer, Goodnow & Trigg (by Robert L. Duty and Mark S. Demorest), Detroit, for defendant-appellant.

Before MAHER, P.J., and WAHLS and HOOD, JJ.

PER CURIAM.

Defendant appeals by leave granted from the denial of its motion for summary judgment in this employment termination case.

Plaintiff was employed by defendant in April, 1977, as Vice President/Loan Officer. His performance was regularly evaluated as satisfactory and he was annually reappointed by defendant's board of directors. On February 26, 1982, plaintiff received a termination letter stating that his position was being eliminated due to "a change in the direction of our organization with more emphasis being placed on money investment and less on lending."

On September 1, 1982, plaintiff filed a five-count complaint alleging breach of contract, age discrimination, malicious and bad faith termination, interference with employment opportunities and failure to objectively evaluate plaintiff's performance. Defendant responded with a motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3). As to Count I, defendant asserted that its bylaws, mandated by federal law, governed over any express or implied contract and, further, that plaintiff's termination was justified for economic reasons. As to Count II, defendant indicated that a young officer had also been terminated and plaintiff was not replaced, as his termination had been for economic reasons. As to Counts III and IV, defendant contended that plaintiff failed to allege tortious conduct independent of the alleged breach of contract. As to Count V, defendant noted that plaintiff was not terminated for poor performance and that plaintiff had admitted that the evaluations were not negligently done.

Plaintiff responded to the motion by arguing that defendant's "economic reasons" were pretextual, that defendant should be estopped from relying on its bylaws, and that the termination was contrary to public policy. Plaintiff has asserted that his two predecessors were both laid off after a couple years, before their pensions vested and allegedly for unsatisfactory performance. Acknowledging that in 1981 the mortgage lending market had declined considerably, plaintiff nevertheless has claimed that defendant remained in strong financial condition and did not need to eliminate its chief mortgage loan officer. Plaintiff asserts that defendant's action was unique amongst savings and loan institutions, most of which were in a weaker financial condition then defendant.

On appeal, plaintiff develops the theory of his termination as follows. John Cherpak, defendant's executive vice president, desired to succeed William Kaper as president. Plaintiff's age and experience made him a threat to Cherpak's plans. Therefore, Cherpak and Kaper decided to eliminate plaintiff's position, and the board of directors rubber stamped the decision. Simultaneously, Cherpak, whose area of expertise was money investments, directed defendant in that direction and also assumed responsibility for the loan department. When Kaper died, Cherpak was the obvious choice as successor and became president of defendant.

I

Plaintiff's breach of contract claim is based on Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), reh. den. 409 Mich. 1101 (1980). Plaintiff alleges that he was promised that he would not be terminated as long as he did satisfactory work. Plaintiff claims this promise was orally given by Kaper and by Dr. Robert Scott, chairman of the board of directors. Defendant denies that such a promise was made, although Scott has not submitted an affidavit to that affect and Kaper died without being deposed.

More significantly for purposes of this case, a "just cause" or satisfaction contract, if one existed, is at odds with defendant's by-laws, which provided in part:

"5. Officers, employees, and agents Annually at the meeting of the board of directors of the association next following the annual meeting of the members of the association, the board of directors shall elect a president, one or more vice-presidents, a secretary, and a treasurer: ... The term of office of all officers shall be one year or until their respective successors are elected and qualified; but any officer may be removed at any time by the board of directors....

"7. Powers of the board--The board of directors shall have power--

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"(c) To fix the compensation of directors, officers, and employees; and to remove any officer or any employee at any time with or without cause." (Emphasis added.)

The above provisions track 12 C.F.R. Sec. 544.5, which require federal mutual associations to operate under such provisions until amended by proper procedure. The regulation adopted by the Federal Home Loan Bank Board is authorized by the Home Owners' Loan Act of 1933, 12 U.S.C. Sec. 1461 et seq., and has the same pre-emptive effect on state law as a federal statute. Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982).

In Ambro v. The American National Bank & Trust Co. of Michigan, 152 Mich.App. 613, 394 N.W.2d 46 (1986), this Court considered a similar question with respect to the National Bank Act and concluded that state contract law was preempted.

"12 USC 24 sets forth the authority of directors of national banks with regard to employment of bank officers:

" 'Upon duly making and filing articles of association and an organization certificate a national banking association shall become, as from the date of the execution of its organization certificate, a body corporate, and as such, and in the name designated in the organization certificate, it shall have power--

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" 'Fifth. To elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.' (Emphasis added.)

"This provision has been consistently construed by state and federal courts to preempt state law governing employment relations between a national bank and its officers and to deprive a national bank of the power to employ its officers other than 'at pleasure'. Wiskotoni v. Michigan National Bank--West, 716 F2d 378, 387 (CA 6, 1983), citing Bollow v Federal Reserve Bank of San Francisco, 650 F2d 1093, 1097, n 3 (CA 9, 1981); Westervelt v Mohrenstecher, 76 F 118, 121 (CA 8, 1896); Kemper v First National Bank in Newton, 94 Ill App 3d 169; 418 NE2d 819 (1981). See also, Alfano v First National Bank of Highland, 111 AD2d 960; 490 NYS2d 56 (1985). In McGeehan v Bank of New Hampshire, NA, 123 NH 83, 86; 455 A2d 1054 (1983), the New Hampshire Supreme Court stated:

" 'The case law uniformly interprets this section and substantially similar provisions as rendering unenforceable, as against public policy, all contractual provisions which do not allow a national banking association to discharge its officers at will without incurring liability for breach of contract.'

We hold that the National Bank Act preempts state law in the area of wrongful discharge and precludes plaintiff from making a Toussaint -based claim for damages against the bank. Accordingly, plaintiff's breach of contract claim against the bank must fail." 152 Mich.App. 617, 618, 394 N.W.2d 46.

As to Ambro's remaining claims, the Court went on to state:

"We then turn to plaintiff's tort claims for negligence and failure to exercise good faith. With respect to the cause of action for negligence, plaintiff states in his complaint:

" '16. Defendants, having established the policies and undertaken the obligations owed to plaintiff as terms and conditions of his employment, as previously set forth in this First Amended Complaint, owed to plaintiff a duty to perform such policies and such obligations in a reasonably prudent manner.'

With respect to the cause of action for failure to exercise good faith, plaintiff states in his complaint:

" '17. Defendants, having established the policies and undertaken the obligations owed to plaintiff as terms and conditions of his employment, as previously set forth in this First Amended Complaint, owed to plaintiff a duty to perform such policies and such obligations in good faith towards plaintiff.'

We held above that the bank could not contract to employ its officers other than at the pleasure of the bank's board of directors. It follows, therefore, that the bank could not assume a duty to perform a contract calling for discharge only for causer. Accordingly, plaintiff's remaining claims against the bank must also fail. The trial court properly granted summary judgment in favor of the bank, pursuant to GCR 1963, 117.2(1)." 152 Mich App 618-619.

The analysis and result of Ambro is applicable here, and accordingly we conclude that defendant is entitled to judgment as a matter of law on Counts I, III, IV and V. Plaintiff makes an effort to...