Marques v. Bank of America

• Decision Date: 19 November 1997
• Docket Number: A074529,Nos. A073882,s. A073882
• Citation: 59 Cal.App.4th 356,69 Cal.Rptr.2d 154
• Court: California Court of Appeals Court of Appeals
• Parties: , 75 Fair Empl.Prac.Cas. (BNA) 743, 97 Cal. Daily Op. Serv. 8774, 97 Daily Journal D.A.R. 14,157 Virginia M. MARQUES, Plaintiff and Appellant, v. BANK OF AMERICA, NT & SA, Defendant and Respondent.

Page 154

69 Cal.Rptr.2d 154

59 Cal.App.4th 356, 75 Fair Empl.Prac.Cas. (BNA) 743,

97 Cal. Daily Op. Serv. 8774,

97 Daily Journal D.A.R. 14,157

Virginia M. MARQUES, Plaintiff and Appellant, v. BANK OF AMERICA, NT & SA, Defendant and Respondent.

Nos. A073882, A074529.

Court of Appeal, First District, Division 2, California.

Nov. 19, 1997.

Review Denied March 11, 1998. ^*

The Lucas Law Firm, Kathleen M. Lucas, Elizabeth M. Miller and Jeanne M. Darrah, and Patricia A. Murphy, San Francisco, for Appellant.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, for Amicus Curiae Fair Employment and Housing Commission in support of Appellant.

Christopher Ho, San Francisco, for Amicus Curiae Employment Law Center in support of Appllant.

Douglas A. Hedin, Minneapolis, MN, Andrea F. Rubinstein, New York City, Joseph Posner, Encino, for Amicus Curiae National Employment Lawyers Association and California Employment Lawyers Ass'n in Support of Appellant.

Patricia K. Gillette, Cynthia J. Griffith, San Francisco, Kenneth D. Hoffman, Los Angeles, Jay J. Price, San Francisco, for Respondent.

Paul, Hastings, Janofsky & Walker, Paul W. Cane, Barbra L. Davis, Los Angeles, for Amicus Curiae California Bankers Association in support of Respondent.

HAERLE, Associate Justice.

I. INTRODUCTION

Virginia M. Marques appeals from a summary judgment in favor of her former employer, Bank of America, NT & SA. She contends the trial court erred in finding that all her claims were preempted by the National Bank Act.

II. FACTUAL AND PROCEDURAL BACKGROUND

On December 29, 1994, Marques filed a wrongful discharge complaint alleging that she was a 57-year-old Hispanic woman who had worked for Bank of America for 38 years, was promoted to Vice President in 1992, and terminated in 1994. She alleged causes of action for unlawful discrimination based on age, sex, and national origin under California's Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), as well as for violation of the state's Equal Pay Act (Lab.Code, § 1197.5), wrongful termination in violation of public policy (FEHA; Unemp. Ins.Code, § 2070 et seq.), breach of contract, and breach of the covenant of good faith and fair dealing. In its answer, the Bank asserted as an affirmative defense that all Marques's claims were preempted by section 24 (Fifth) of the National Bank Act (12 U.S.C. § 21 et seq.). On January 8, 1996, the Bank filed a motion for summary judgment on preemption grounds. After a hearing, the court granted the motion and entered judgment accordingly.

Thereafter, the Bank filed a memorandum of costs. After filing a timely notice of appeal from the judgment, Marques filed a motion to strike or tax costs, and a motion for sanctions (Code Civ. Proc., § 128.5). After a hearing, the trial court denied both motions. Marques's appeal from the postjudgment order has been consolidated with her appeal from the judgment.

III. DISCUSSION

"A defendant may show entitlement to summary judgment either by showing one or more elements of each cause of action cannot be established, or by establishing an affirmative defense. (Code Civ. Proc., § 437c, subd. (n).)" (Marquez v. Mainframe (1996) 42 Cal.App.4th 881, 884, 50 Cal.Rptr.2d 34.) "[O]n appeal of a summary judgment the proper standard is independent review--we examine the facts as presented to the trial court on a summary judgment motion and independently determine their effect as a matter of law. [Citations.]" (Id. at pp. 884-885, 50 Cal.Rptr.2d 34.)

A. National Bank Act Preemption

The National Bank Act (NBA) gives a national banking association the power "[t]o 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." (12 U.S.C. § 24 (Fifth), italics added.) The trial court found that undisputed evidence showed Bank of America is a national banking association of which Marques was an officer whose termination was ratified by the Board of Directors (see Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1103, 282 Cal.Rptr. 841, 811 P.2d 1025 (Wells Fargo)). It therefore ruled that all her claims were preempted by section 24 (Fifth). On appeal, Marques's main contention is that the NBA's "at pleasure" provision does not preempt claims based on a state antidiscrimination statutory scheme such as FEHA.

"Pre-emption may be either expressed or implied, and 'is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.' [Citations.]" (Gade v. National Solid Wastes (1992) 505 U.S. 88, 98, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73.) Congressional intent to preempt state law is implicit in an actual, irreconcilable conflict between state and federal statutes, such that "state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' [Citations.]" (Ibid., see also Barnett Bank of Marion Cty., N.A. v. Nelson (1996) 517 U.S. 25, 31, 116 S.Ct. 1103, 1108, 134 L.Ed.2d 237.) "Nevertheless, pre-emption is not to be lightly presumed. [Citation.]" (California Federal S. & L. Assn. v. Guerra (1987) 479 U.S. 272, 281, 107 S.Ct. 683, 689, 93 L.Ed.2d 613.) On the contrary, a party claiming preemption has the burden of overcoming the presumption against it. (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 937, 216 Cal.Rptr. 345, 702 P.2d 503; Chemical Specialties Mfrs. Ass'n., Inc. v. Allenby (9th Cir.1992) 958 F.2d 941, 943.) "The 'controlling principle' ... is that 'any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause.' [Citation.]" (Aalgaard v. Merchants Nat. Bank, Inc. (1990) 224 Cal.App.3d 674, 688, 274 Cal.Rptr. 81 (Aalgaard ).) ¹

In Aalgaard, the court held that a FEHA action alleging age discrimination by a national banking association with fewer than 20 employees was preempted by section 24 (Fifth). (Id. at p. 677, 274 Cal.Rptr. 81.) In so doing, it rejected plaintiff's contention that the preemption doctrine was not applicable to his claim because Congress had enacted a comparable statute, the Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.), banning age discrimination by employers of more than 20 persons, not excepting national banks (29 U.S.C. §§ 623, 630(a) & (b)). (Aalgaard, supra, 224 Cal.App.3d at pp. 693-694, 274 Cal.Rptr. 81.) "By implication," the court admitted, "Congress arguably has decreed that national banks with 20 or more employees are bound by the federal age discrimination statute," but no such repeal by implication can be asserted as to smaller national banks. (Id. at p. 694, 274 Cal.Rptr. 81.) Thus, the Aalgaard case does not foreclose the possibility that state discrimination claims against larger banks might not be preempted by the NBA to the extent they are cognizable under federal law. ² The California Supreme Court has subsequently noted the issue, but said "we need not and do not decide this important and difficult question. [Citation.]" (In so doing, it summarized Aalgaard's holding as "state age discrimination preempted by section 24 discharge.") (Wells Fargo, supra, 53 Cal.3d at p. 1104, 282 Cal.Rptr. 841, 811 P.2d 1025.)

As noted in Mardula, supra, 43 Cal.App.4th at page 793, 51 Cal.Rptr.2d 63, federal courts have considered the preemptive effect of federal dismissal-at-pleasure provisions (see ante, fn. 2) on state discrimination claims with varying results. For example, in Ana Leon T. v. Federal Reserve Bank of Chicago (6th Cir.1987) 823 F.2d 928, 931 (Ana Leon T.), the court held the Federal Reserve Act's dismissal-at-pleasure provision preempted plaintiff's discriminatory discharge claim under Michigan's statutory scheme, although she could have brought it under Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.). (See also Osei-Bonsu v. Federal Home Loan Bank of New York (S.D.N.Y.1989) 726 F.Supp. 95, 97-98 [dismissal-at-pleasure provision of Federal Home Loan Bank Act deprives New York State Division of Human Rights of jurisdiction over discriminatory discharge claims]; Kispert v. Federal Home Loan Bank (S.D.Ohio 1991) 778 F.Supp. 950, 952-953 [following Ana Leon T.].)

On the other hand, in Moodie v. Federal Reserve Bank of New York (S.D.N.Y.1993) 831 F.Supp. 333, 336 (Moodie ), the court disagreed with Ana Leon T. because "the Sixth Circuit's pronouncement gives no basis for its opinion and sets forth no policy reasons for its holding." The district court found nothing in the Federal Reserve Act to support the view that Congress considered employment discrimination at the time of its enactment (Moodie, supra, 831 F.Supp. at p. 336), and nothing in the language of its dismissal-at-pleasure provision to support the view "that Congress intended that section to exempt the Federal Reserve Banks, in the area of employment discrimination, from statutes or regulations of the states in which they operate, particularly when the state statutory scheme is consistent with federal legislation." (Id. at p. 337.) The court held, therefore, that section 24 did not preempt New York State Human Rights Law claims. (Ibid.; see also White v. Fed. Res. Bank (1995) 103 Ohio App.3d 534, 660 N.E.2d 493, 495-496 [following Moodie ].)

Marques would have us adopt the Moodie analysis, and hold that FEHA does not conflict with the National Bank Act's dismissal-at-pleasure provision, to the extent of its repeal by implication ³ by federal antidiscrimination law. She points out that not only do FEHA and Title VII have identical objectives (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316, 237 Cal.Rptr. 884), but their "procedures and remedies" are "wholly...