Metropolitan News-Enterprise


Tuesday, October 2, 2007


Page 1


C.A. Revives Claim of Discrimination by Bank ‘Vice President’

Worker’s Job Duties, Not Merely Title, Determine Whether Suit Is Preempted by Federal Law, Justices Rule




A national bank employee who holds the title of vice president but whose duties are not among those normally associated with that position is not barred from bringing an employment-related suit under state law, the First District Court of Appeal has ruled.

Div. Three last week certified for publication its Aug. 30 opinion reversing an Alameda Superior Court judge’s grant of summary judgment in favor of Bank of America.

Judge Steven A. Brick held Padmanabhan Ramanathan’s action for racial, national-origin, and religious discrimination in violation of the state Constitution and Fair Employment and Housing Act; retaliation in violation of FEHA; wrongful termination in violation of public policy; and infliction of emotional distress to be preempted by Sec. 24(Fifth) of the bank act.

Banking Act

The section grants 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.”

The statute has been interpreted by a number of courts around the country, including the California Supreme Court, as precluding members of the affected class of employees from bringing employment claims under state law, although some courts have held that anti-discrimination claims may be brought if the conduct barred by state law is also barred by federal law.

Bank of America contends that Ramanathan cannot sue because he was a vice president of the bank when his employment was terminated in February 2003. Ramanathan argues that because he was a computer programmer, not a banker or supervisor, the bank could not fire him “at pleasure.”

In his declaration, Ramanathan explained that he had no employees working under his supervision, had no control over anyone else’s employment, was primarily involved in the design and development of software applications, and had nothing to do with banking operations or customer service.

Title ‘Insignificant’

When he asked his supervisor why he was called a “vice president,” he was told the title was “insignificant” and had no effect on his wages or responsibilities, but that use of the title was common in the corporate world, he declared.

Alameda Superior Court Judge Jeffrey W. Horner, writing on assignment for the Court of Appeal, cited +Wells Fargo Bank v. Superior Court+ (1991) 53 Cal.3d 1082. The court in that case held that three former branch managers who had the title “assistant vice-president,” and were responsible for executing contracts and supervising transactions involving significant amounts of money, were “other officers” and among those barred from bringing state-law claims.

Horner concluded that giving Ramanathan the title “vice president” did not, in and of itself, insulate the bank from state-based legal claims he might bring in connection with employment. In a footnote, he derided the bank’s “startling assertion” at oral argument that it could designate all of its employees, “including janitors, maintenance workers, everyone” as vice presidents whose claims would be subject to preemption under the banking act.

Only when a person meets the definition of an officer under Wells Fargo—someone whose position was created by the bank’s board, whose appointment was made by the board or someone authorized by the board to make the selection, who has the express authority to bind the bank in transactions with third parties, and who has decision-making authority over banking operations—are state-law claims by that person preempted by the National Bank Act, Horner said.

If the averments of Ramanathan’s declaration are accurate, Horner said, the “limited, non-banking nature of his duties and responsibilities” places him outside the class of persons to whom Sec. 24(Fifth) applies. 

The case is Ramanathan v. Bank of America, 07 S.O.S. 6041.


Copyright 2007, Metropolitan News Company