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Pereira v. Bank of America2/13/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Kenneth P. Pereira sued defendant Bank of America N.T. & S.A. for breach of contract (constructive wrongful termination), violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (age and gender discrimination), breach of the implied convenient of good faith and fair dealing, intentional infliction of emotional distress, and negligent infliction of emotional distress. The trial court granted defendant's motion for summary judgment on the basis that the causes of action were preempted by section 24, Fifth, of the National Bank Act. (12 U.S.C. § 21 et seq.) It also granted the motion on the basis that plaintiff suffered a demotion, which is insufficient as a matter of law to constitute a constructive termination. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238.) And finally it granted the motion on the basis that plaintiff failed to submit substantial evidence that defendant's stated reasons for the demotion were pretextual or motivated by discriminatory animus. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997.) Plaintiff appeals and reiterates his arguments. Since we agree with the preemption point, we decline to reach the secondary issues. We affirm the judgment.
Undisputed Material Facts
Defendant hired plaintiff in 1962. Its board of directors appointed him a vice-president in 1982. He became a branch manager in 1984. He managed several branches over the years. The last was in Carmel from 1993 to 1996.
Since 1985, supervisors had recommended to plaintiff that he improve his managerial skills. In 1995, plaintiff's district manager ordered two human resource audits after receiving several complaints about plaintiff from plaintiff's subordinates, one of whom said that she was quitting, in part, because of plaintiff. After the audits, the district manager counseled plaintiff about improving his behavior. In March 1996, one of plaintiff's subordinates requested a job transfer because she could not work with plaintiff. On May 13, 1996, plaintiff's district manager removed plaintiff as the Carmel branch manager and reassigned him to the Seaside branch in a senior level sales position. Plaintiff's grade level, salary, officer title, and supervisor (the district manager) were unaffected by the reassignment. Plaintiff did not report to the Seaside branch because his physician advised that he risked a second heart attack. He took a medical disability leave. Defendant's policy was that employment would be terminated if a medical leave extended beyond two years. In November 1998, defendant notified plaintiff that he was subject to termination but that it would delay the termination until March 1999 because plaintiff would be eligible to retire then and the termination could be considered retirement. On March 17, 1999, defendant terminated plaintiff for retirement. On May 24, 1999, defendant's board of directors ratified the termination.
Discussion
"Section 8 of the National Bank Act of 1864, as later incorporated as amended in section 5136 of title 62 of the Revised Statutes of 1878, and as presently codified at section 24, paragraph Fifth, of title 12 of the United States Code (hereafter sometimes section 24, Fifth), which is its common designation, grants a national bank the power to `dismiss' any of its officers `at pleasure' by its boar
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