Kroske v. U.S. Bancorp ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHY KROSKE, an individual,  No. 04-35187
Plaintiff-Appellant, D.C. No.
v.
 CV-02-00439-RHW
US BANK CORP., a foreign ORDER AND
corporation; dba US Bank AMENDED
Defendants-Appellees.
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
July 15, 2005—Seattle, Washington
Filed December 23, 2005
Amended February 13, 2006
Before: A. Wallace Tashima, Richard A. Paez, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Paez
1633
1636 KROSKE v. US BANK CORP.
COUNSEL
Christine M. Weaver & Sean D. Jackson, Miller, Devlin,
McLean & Weaver, P.S., Spokane, Washington, for the
plaintiff-appellant.
Thomas Bassett & Angel Rains, Lukins & Annis P.S., Spo-
kane, Washington, for the defendant-appellant.
ORDER
The opinion filed December 23, 2005 is amended as fol-
lows:
1. Footnote six is deleted in its entirety.
2. The first sentence of Part I (“Background”) is
deleted in its entirety and replaced with the fol-
lowing sentence: “U.S. Bank Corp., a Delaware
corporation, owns U.S. Bank National Associa-
tion, which is a federally chartered National
Banking Association that was formed in accor-
dance with the National Bank Act, 12 U.S.C.
§ 21.”
With these amendments, Appellees’ petition for panel
rehearing is DENIED.
The full court has been advised of Appellees’ petition for
rehearing en banc, and no active judge of the court has
requested a vote on whether to rehear the case en banc. Fed.
R. App. P. 35(b). Therefore the petition for rehearing en banc
is DENIED.
No further petitions for panel rehearing or rehearing en
banc shall be filed.
KROSKE v. US BANK CORP. 1637
OPINION
PAEZ, Circuit Judge:
Kathy Kroske appeals the district court’s order granting
Defendant U.S. Bank Corp.’s motion for summary judgment,
dismissing Kroske’s age discrimination claim under the
Washington Law Against Discrimination (“WLAD”), Wash.
Rev. Code §§ 49.60.010-.400. Kroske first contends that the
district court erroneously concluded that the amount in con-
troversy exceeded $75,000 and therefore improperly deter-
mined that it had diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a)(1). Kroske further argues that the district court erro-
neously concluded that the National Bank Act, 12 U.S.C.
§§ 21-216d, preempts her age discrimination claim under the
WLAD. We have jurisdiction under 28 U.S.C. § 1291. We
conclude that diversity jurisdiction is proper and that Kroske’s
age discrimination claim under the WLAD was not pre-
empted. Accordingly, we reverse and remand.
I. Background
U.S. Bank Corp., a Delaware corporation, owns U.S. Bank
National Association, which is a federally chartered National
Banking Association that was formed in accordance with the
National Bank Act, 12 U.S.C. § 21. The Bank is governed by
a board of directors, which is empowered by the Bank’s
bylaws to elect and discharge officers.
Kathy Kroske began working for the Bank in 1977 as a
teller. On April 20, 1993, the Bank’s board of directors
elected Kroske as an officer in the role of Assistant Vice Pres-
ident. During restructuring due to a merger, the Bank changed
Kroske’s position from retail market manager to manager of
the Manito bank branch in Spokane, Washington. As man-
ager, Kroske was notified that her branch was not meeting the
Bank’s goals and quotas for business activity. Although
Kroske contends that her branch was the smallest in the area
1638 KROSKE v. US BANK CORP.
with the fewest employees, and that she was short-staffed, the
Bank continued to insist that her branch meet fixed business
activity levels and warned that she would be disciplined if it
did not. Ultimately, in July 2002, the Bank terminated Kroske
for allegedly failing to meet the daily performance goals. The
board of directors subsequently ratified Kroske’s termination
in a meeting convened in Minneapolis, Minnesota.
Kroske filed suit in Washington State Superior Court
against the Bank. She alleged that at the time of her termina-
tion, the other branch managers in the region were in their
twenties and thirties, while Kroske was fifty-one years old.
Further, the Bank allegedly gave these younger managers a
reasonable opportunity to meet the business activity goals and
denied Kroske such an opportunity. In addition, Kroske con-
tended that she was replaced by an employee who was in his
mid-twenties and possessed less experience than Kroske.
Kroske therefore alleged that the Bank had terminated her on
the basis of her age in violation of the WLAD, and sought
damages, as well as attorney’s fees and costs. In her com-
plaint, Kroske did not allege any federal causes of action.
The Bank removed the case to federal court and, once in
federal court, filed a motion for summary judgment arguing
that Kroske’s state discrimination claim was preempted by the
National Bank Act, specifically 12 U.S.C. § 24(Fifth), which
grants national banks the power to dismiss officers “at plea-
sure.” Kroske opposed the motion, contending that she was
not an officer under § 24(Fifth) and, in the alternative, that the
National Bank Act did not preempt her age discrimination
claim under the WLAD.
The district court granted the Bank’s motion for summary
judgment. The court held that Kroske qualified as an “officer”
under the National Bank Act. Further, the district court con-
cluded that § 24(Fifth) preempts the field of law regulating
the Bank’s employment practices and therefore preempted
Kroske’s age discrimination claim under the WLAD. Kroske
KROSKE v. US BANK CORP. 1639
timely appealed, challenging the district court’s jurisdiction
and the grant of summary judgment.
II. Amount In Controversy
Kroske first contends that removal of her case to federal
court was improper because the district court lacked diversity
jurisdiction under 28 U.S.C. § 1332.1 She argues that the Bank
did not meet its burden of establishing that the amount in con-
troversy exceeded $75,000. “We review de novo a district
court’s determination that diversity jurisdiction exists.” Breit-
man v. May Co. Cal., 37 F.3d 562, 563 (9th Cir. 1994). The
factual determinations necessary to establish diversity juris-
diction are reviewed for clear error. Co-Efficient Energy Sys.
v. CSL Indus., Inc., 812 F.2d 556, 557 (9th Cir. 1987).
[1] Where, as here, “the complaint does not demand a dol-
lar amount, the removing defendant bears the burden of prov-
ing by a preponderance of evidence that the amount in
controversy exceeds $[75],000.” Singer v. State Farm Mut.
Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997); Cohn v.
Petsmart, Inc., 281 F.3d 837, 839 (9th Cir. 2002). The amount
in controversy includes the amount of damages in dispute, as
well as attorney’s fees, if authorized by statute or contract.
See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th
Cir. 1998). When the amount is not “facially apparent” from
the complaint, “the court may consider facts in the removal
petition, and may ‘require parties to submit summary-
judgment-type evidence relevant to the amount in controversy
at the time of removal.’ ” Singer, 116 F.3d at 377 (quoting
Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335-36 (5th
Cir. 1995)).
1
28 U.S.C. § 1332(a)(1) provides, in relevant part, “The district courts
shall have original jurisdiction of all civil actions where the matter in con-
troversy exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between . . . citizens of different States.”
1640 KROSKE v. US BANK CORP.
Here, Kroske’s complaint alleged that “she suffered and
continues to suffer economic and emotion [sic] injuries and
other damages, with specific amounts to be proven at the time
of trial.” In response to the Bank’s interrogatories, Kroske
further identified the following categories of damages: lost
wages, benefits including but not limited to health and mental
insurance, 401(k) contributions, value of life insurance poli-
cies, stock options, and emotional distress damages, as well
as attorney’s fees and costs. Kroske did not, however, allege
the amount of damages or fees she sought.
[2] In determining the amount in controversy, the district
court properly considered Kroske’s interrogatory answers and
emotional distress damage awards in similar age discrimina-
tion cases in Washington. See De Aguilar v. Boeing Co., 11
F.3d 55, 58 (5th Cir. 1993). Based upon a preponderance of
the evidence, the court concluded that Kroske’s lost wages
amounted to at least $55,000, that her 401(k) contribution
amounted to at least $1000, and that her emotional distress
damages would add at least an additional $25,000 to her
claim. Therefore, even without including a potential award of
attorney’s fees, the district court found that the amount in
controversy exceeded $75,000. This finding was not clearly
erroneous; diversity jurisdiction properly exists in this case.
III. Preemption
Kroske contends that the district court erred in concluding
that her age discrimination claim under the WLAD, Wash.
Rev. Code § 49.60.180, was preempted by the National Bank
Act. The National Bank Act provides that a national bank
shall have 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) (emphasis added). Kroske con-
cedes that she was appointed and terminated by the board of
KROSKE v. US BANK CORP. 1641
directors and does not challenge the district court’s determina-
tion that she was an “officer” under 12 U.S.C. § 24(Fifth).
Kroske contends, however, that the district court erred in
determining that her state law age discrimination claim is pre-
empted by the dismiss-at-pleasure provision of § 24(Fifth).
We agree.
“We review a district court’s grant of summary judgment
de novo.” Winterrowd v. Am. Gen. Annuity Ins. Co., 321 F.3d
933, 937 (9th Cir. 2003). Further, federal preemption is an
issue of law, which we review de novo. Id.
A.
Under Article VI of the Constitution, the laws of the United
States “shall be the supreme Law of the Land; . . . any Thing
in the Constitution or Laws of any state to the Contrary not-
withstanding.” U.S. Const. art. VI, cl. 2. Accordingly, it is
axiomatic “that state law that conflicts with federal law is
‘without effect.’ ” Cipollone v. Liggett Group, Inc., 505 U.S.
504, 516 (1992) (quoting Maryland v. Louisiana, 451 U.S.
725, 746 (1981)).
Federal law may preempt state law under the Supremacy
Clause in three ways. English v. Gen. Elec. Co., 496 U.S. 72,
78 (1990). First, Congress may state its intent through an
express preemption statutory provision. Id. at 78-79. Second,
“in the absence of explicit statutory language, state law is pre-
empted where it regulates conduct in a field that Congress
intended the Federal Government to occupy exclusively.” Id.
at 79.
Such an intent may be inferred from a “scheme of
federal regulation . . . so pervasive as to make rea-
sonable the inference that Congress left no room for
the States to supplement it,” or where an Act of Con-
gress “touch[es] a field in which the federal interest
is so dominant that the federal system will be
1642 KROSKE v. US BANK CORP.
assumed to preclude enforcement of state laws on
the same subject.”
Id. (alterations in original) (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)). Finally, state law that actu-
ally conflicts with federal law is preempted. Id. “Thus, the
Court has found pre-emption where it is impossible for a pri-
vate party to comply with both state and federal requirements,
or where state law stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of
Congress.” Id. (citation and quotation omitted). In considering
whether any of these three categories of preemption apply,
however, “ ‘[t]he purpose of Congress is the ultimate touch-
stone’ of pre-emption analysis.” Cipollone, 505 U.S. at 516
(quoting Malone v. White Motor Corp., 435 U.S. 497, 504
(1978)).
[3] Further, “[w]here federal law is said to bar state action
in fields of traditional state regulation . . . we have worked on
the assumption that the historic police powers of the States
were not to be superseded by the Federal Act unless that was
the clear and manifest purpose of Congress.” DeBuono v.
NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 813
n.8 (1997) (internal quotations omitted); Rice, 331 U.S. at
230. The presumption of non-preemption does not apply,
however, “when the State regulates in an area where there has
been a history of significant federal presence.” United States
v. Locke, 529 U.S. 89, 108 (2000); see also Air Conditioning
& Refrigeration Inst. v. Energy Res. Conservation & Dev.
Comm’n, 410 F.3d 492, 496 (9th Cir. 2005). Here, although
we recognize that there is a significant federal presence in the
regulation of national banks, see Bank of Am. v. City &
County of San Francisco, 309 F.3d 551, 559 (9th Cir. 2002),
WLAD was enacted pursuant to the State’s historic police
powers to prohibit discrimination on specified grounds. See
Wash. Rev. Code § 49.60.010. Thus, we begin with the pre-
sumption that Congress did not intend the National Bank Act
to preempt the WLAD. Cf. PG&E Co. v. California, 350 F.3d
KROSKE v. US BANK CORP. 1643
932, 943 (9th Cir. 2003) (holding that presumption against
preemption of generally applicable state law applies in bank-
ruptcy area); Fla. E. Coast Ry. Co. v. City of W. Palm Beach,
266 F.3d 1324, 1328-29 (11th Cir. 2001) (“Although the fed-
eral government through the ICCTA has legislated in an area
where there has been a history of significant federal presence,
. . . West Palm Beach is acting under the traditionally local
police power of zoning and health and safety regulation.”
(footnote, citation and quotation omitted)).
B.
The at-pleasure provision of § 24(Fifth) is part of the
scheme of federal laws governing the duties and powers of
federally chartered banks. “Congress has legislated in the
field of banking from the days of M’Culloch v. Maryland, 17
U.S. (4 Wheat.) 316 . . . (1819), creating an extensive federal
statutory and regulatory scheme.” Bank of Am., 309 F.3d at
558. The purpose of this scheme was “to facilitate what Rep-
resentative Hooper termed a ‘national banking system,’ ”
Marquette Nat’l Bank v. First of Omaha Serv. Corp., 439 U.S.
299, 315 (1978) (footnote and citation omitted), and “to pro-
tect national banks against intrusive regulation by the States,”
Bank of Am., 309 F.3d at 561. Accordingly, the history of
national banking law is “one of interpreting grants of both
enumerated and incidental ‘powers’ to national banks as
grants of authority not normally limited by, but rather ordinar-
ily preempting, contrary state law.” Barnett Bank, N.A. v. Nel-
son, 517 U.S. 25, 32 (1996).
[4] Nonetheless, “[s]ince shortly after the Bank Act was
enacted in 1864, the Supreme Court has oft reiterated that fed-
eral substantive authority over national banks is not exclu-
sive.” Wells Fargo Bank N.A. v. Boutris, 419 F.3d 949, 963
(9th Cir. 2005) (citation and footnote omitted). Rather, “regu-
lation of banking has been one of dual control [with the
states] since the passage of the first National Bank Act.” Nat’l
State Bank v. Long, 630 F.2d 981, 985 (3d Cir. 1980).
1644 KROSKE v. US BANK CORP.
Accordingly, federal banking statutes and regulations do not
“deprive States of the power to regulate national banks, where
. . . doing so does not prevent or significantly interfere with
the national bank’s exercise of its powers.” Barnett Bank, 517
U.S. at 33. State laws regulating the conduct of national banks
are void only “if they conflict with federal law, frustrate the
purposes of the National Bank Act, or impair the efficiency
of national banks to discharge their duties.” Bank of Am., 309
F.3d at 561; see also Barnett Bank, 517 U.S. at 33-37 (hold-
ing that a federal statute granting national banks authority to
sell insurance conflicts with and therefore preempts state law
forbidding banks from selling insurance); Franklin Nat’l Bank
v. New York, 347 U.S. 373, 377-79 (1954) (holding that
national banks’ power to receive deposits conflicts with and
therefore preempts a state statute prohibiting use of the word
“savings” in banking advertisements); Anderson Nat’l Bank v.
Luckett, 321 U.S. 233, 248-49 (1944) (holding that a state
statute providing for transfer of abandoned bank deposits was
not preempted because “national banks are subject to state
laws, unless those laws infringe the national banking laws or
impose an undue burden on them”).
In light of the historic dual regulation of banks by state and
federal law, we conclude that the district court erred in deter-
mining that the dismiss-at-pleasure provision of the National
Bank Act preempts the entire field of law governing national
banks’ employment practices. Indeed, the at-pleasure provi-
sion is not accompanied by a pervasive regulatory scheme
that governs the dismissal of bank officers, “ ‘the mere vol-
ume and complexity’ ” of which “demonstrate[s] an implicit
congressional intent to displace all state law.” Bank of Am.,
309 F.3d at 558 (quoting Geier v. Am. Honda Motor Co., 529
U.S. 861, 884 (2000)). Rather, the National Bank Act simply
contains one undefined clause—“dismiss such officers or any
of them at pleasure.” 12 U.S.C. § 24(Fifth). This clause does
not reflect that Congress’s clear and manifest purpose was
preemption of the entire field of state law.
KROSKE v. US BANK CORP. 1645
We therefore must determine the intended purpose and
scope of the at-pleasure provision and, given that scope,
whether the WLAD “conflict[s] with federal law, frustrate[s]
the purposes of the National Bank Act, or impair[s] the effi-
ciency of national banks to discharge their duties.” Bank of
Am., 309 F.3d at 561.2 The meaning and scope of the at-
pleasure provision is not defined by statute, regulations, or
legislative history. In fact, the only evidence of congressional
intent regarding the purpose and scope of the National Bank
Act provision is provided by case law.
An early leading case addressing the at-pleasure clause
explained the purpose of the provision as follows:
Observation and experience alike teach that it is
essential to the safety and prosperity of banking
institutions that the active officers, to whose integrity
and discretion the moneys and property of the bank
2
In determining the intended scope of § 24(Fifth), we also consider the
judicial constructions of the virtually identical dismiss-at-pleasure provi-
sions in the Federal Reserve Act, 12 U.S.C. § 341(Fifth), and the Federal
Home Loan Bank Act, 12 U.S.C. § 1432(a).
Under the Federal Reserve Act, a Federal Reserve Bank has the power
“[t]o appoint by its board of directors a president, vice presidents, and
such officers and employees as are not otherwise provided for in this chap-
ter, to define their duties, require bonds for them and fix the penalty
thereof, and to dismiss at pleasure such officers or employees.” 12 U.S.C.
§ 341(Fifth) (emphasis added).
Similarly, under the Federal Home Loan Bank Act, the board of direc-
tors of each Federal Home Loan Bank has the power “to select, employ,
and fix the compensation of such officers, employees, attorneys, and
agents as shall be necessary for the transaction of its business, to define
their duties, require bonds of them and fix the penalties thereof, and to dis-
miss at pleasure such officers.” 12 U.S.C. § 1432(a) (emphasis added).
Courts that have considered these provisions have interpreted them con-
sistently with each other and with the at-pleasure clause of the National
Bank Act. See, e.g., Mele v. Fed. Reserve Bank, 359 F.3d 251, 255 (3d
Cir. 2004); Arrow v. Fed. Reserve Bank, 358 F.3d 392, 394 (6th Cir.
2004); Inglis v. Feinerman, 701 F.2d 97, 98 (9th Cir. 1983).
1646 KROSKE v. US BANK CORP.
and its customers are intrusted, should be subject to
immediate removal whenever the suspicion of faith-
lessness or negligence attaches to them. High credit
is indispensable to the success and prosperity of a
bank. Without it, customers cannot be induced to
deposit their moneys. When it has once been
secured, and then declines, those who have deposited
demand their cash, the income of the bank dwindles,
and often bankruptcy follows. It sometimes happens
that, without any justification, a suspicion of dishon-
esty or carelessness attaches to a cashier or a presi-
dent of a bank, spreads through the community in
which he lives, scares the depositors, and threatens
immediate financial ruin to the institution. In such a
case it is necessary to the prosperity and success—to
the very existence—of a banking institution that the
board of directors should have power to remove such
an officer, and to put in his place another, in whom
the community has confidence. In our opinion, the
provision of the act of congress to which we have
referred was inserted, ex industria, to provide for this
very contingency.
Westervelt v. Mohrenstecher, 76 F. 118, 122 (8th Cir. 1896).
Thus, “[t]he original congressional intent behind the at-
pleasure provision of the Bank Acts was to ensure the finan-
cial stability of the banking institutions by affording them the
means to discharge employees who were felt to compromise
an institution’s integrity.” Sharon A. Kahn & Brian McCar-
thy, At-Will Employment in the Banking Industry: Ripe for a
Change, 17 Hofstra Lab. & Emp. L.J. 195, 215 (1999).
Accordingly, courts uniformly have concluded that a bank’s
power to “dismiss at pleasure is analogous to dismiss at will,
implying the absence of a contractual relationship between
employer and employee.” Katsiavelos v. Fed. Reserve Bank,
1995 WL 103308, at *2 (N.D. Ill. Mar. 3, 1995); see also
Mele, 359 F.3d at 255; Booth v. Old Nat’l Bank, 900 F. Supp.
836, 843 (N.D.W. Va. 1995); Mueller v. First Nat’l Bank, 797
KROSKE v. US BANK CORP. 1647
F. Supp. 656, 663 (C.D. Ill. 1992); White v. Fed. Reserve
Bank, 660 N.E.2d 493, 496 (Ohio Ct. App. 1995); Sargent v.
Cent. Nat’l Bank & Trust Co., 809 P.2d 1298, 1303 (Okla.
1991).3
Similarly, we have concluded that the at-pleasure provision
of the National Bank Act bars contract claims challenging a
bank’s dismissal of an officer. See Mackey v. Pioneer Nat’l
Bank, 867 F.2d 520, 524 (9th Cir. 1989) (holding that
§ 24(Fifth) “has been consistently interpreted to mean that the
board of directors of a national bank may dismiss an officer
without liability for breach of the agreement to employ”). We
further have concluded that “the National Bank Act raise[s] a
defense to both . . . contract and tort claims.” Id. at 525. In
Mackey, we explained,
it would make little sense to allow state tort claims
to proceed, where a former bank officer’s contract
claims are barred by Section 24 (Fifth). The effect
would be to substitute tort for contract claims, thus
subjecting the national bank to all the dangers atten-
dant to dismissing an officer. The purpose of the pro-
vision in the National Bank Act was to give those
institutions the greatest latitude possible to hire and
fire their chief operating officers, in order to main-
tain the public trust.
3
One commentator has argued, however, that in light of the employment
law principles that were in force at the time of the enactment of the
National Bank Act, the courts have erred in concluding that the at-pleasure
provisions were intended to render state contractual claims void. See
M.B.W. Sinclair, Employment At Pleasure: An Idea Whose Time Has
Passed, 23 U. Tol. L. Rev. 531 (1992). At the time Congress enacted the
National Bank Act, “if an employment contract was not for a definite
term, then it was presumed to be for a year.” Id. at 540. Thus, the “original
purpose of the ‘at pleasure’ language of the . . . National Bank Act was
to enable banks to remove officers who otherwise would be entitled, by
law, to remain at least until the end of the year.” Id. at 541. According to
this argument, as at-will employment became the norm, the at-pleasure
provisions became superfluous. Id.
1648 KROSKE v. US BANK CORP.
Id. at 526.
We also have held that the at-pleasure provision in the Fed-
eral Home Loan Act, 12 U.S.C. § 1432(a), bars state tort
wrongful discharge claims. See Inglis, 701 F.2d at 97. In
Inglis, we considered a wrongful discharge claim based upon
the California law exception to at-will termination under
Tameny v. Atl. Richfield Co., 610 P.2d 1330 (Cal. 1980).
Inglis, 701 F.2d at 99. We held that the plaintiff’s claim,
which alleged that “the reason for his termination was his
insistence that the Bank conform its practices to federal law,”
was preempted by the Federal Home Loan Act, 12 U.S.C.
§ 1432(a). Id.; see also Bollow v. Fed. Reserve Bank, 650
F.2d 1093 (9th Cir. 1981) (holding that Federal Reserve Bank
employee’s claims alleging a right to a hearing before termi-
nation under state law conflicted with and were preempted by
the at-pleasure provision in 12 U.S.C. § 341(Fifth)).
We again addressed a bank’s authority to dismiss a bank
officer under an at-pleasure provision in Walleri v. Fed. Home
Loan Bank, 83 F.3d 1575 (9th Cir. 1996). In Walleri, we con-
cluded that the Federal Home Loan Bank Act at-pleasure pro-
vision, 12 U.S.C. § 1432(a), preempted a state wrongful
discharge claim alleging that the bank wrongfully terminated
the plaintiff because she prepared a report critical of the
bank’s lack of compliance with the federal banking laws.
Walleri, 83 F.3d at 1578-79, 1582. We also held that Wal-
leri’s emotional distress claim was preempted. Although we
recognized that the bank’s power to dismiss “at pleasure”
would not “necessarily preempt[ ] claims based on an
employer’s wrongful act directed at the employee outside of
the employment relationship . . . , the conduct complained of
[in the plaintiff’s emotional distress allegations] relate[d]
solely to the employment relationship.” Id. at 1582. We there-
fore affirmed the dismissal of the emotional distress claim,
concluding “[w]hen § 1432(a) vested power in the Federal
Home Loan Banks to ‘select, employ, and fix the compensa-
tion of . . . [their] employees . . . to define their duties . . . and
KROSKE v. US BANK CORP. 1649
to dismiss [them] at pleasure . . .’ it left no room for oversight
under state law over the manner in which that power is exer-
cised.” Id. (alterations in original).
C.
In light of our past holdings delineating the preemptive
scope of the banking laws’ dismiss-at-pleasure provisions, the
Bank argues that § 24(Fifth) also preempts Kroske’s claim
under the WLAD. To support this contention the Bank cites
the Sixth Circuit’s ruling in Leon v. Fed. Reserve Bank, 823
F.2d 928 (6th Cir. 1987). In Leon, the Sixth Circuit concluded
that the Elliott-Larsen Act, Michigan’s anti-discrimination
statute, Mich. Comp. Laws Ann. §§ 37.2101-.2804, was pre-
empted by the Federal Reserve Act’s at-pleasure provision, 12
U.S.C. § 341(Fifth). Leon, 823 F.2d at 931. With little analy-
sis of the issue, the court concluded that the at-pleasure provi-
sion “preempts any state-created employment right to the
contrary,” including the plaintiff’s claim under the state anti-
discrimination law. Id; see also Arrow, 358 F.3d at 393
(applying Leon and holding that a state anti-discrimination
claim was preempted).
[5] We disagree with the Sixth Circuit’s summary conclu-
sion that state anti-discrimination statutes enacted under a
state’s police powers are preempted by the banking laws sim-
ply because they are part of a general category of “state-
created employment right[s].” Unlike the cases involving state
common law employment claims, here we are confronted
with a state statute prohibiting discrimination, which is mod-
eled after and incorporated into the federal anti-discrimination
laws. Thus, federal preemption of the WLAD must be consid-
ered in light of Congress’s enactment of relevant federal
employment discrimination laws and the cooperative state-
federal anti-discrimination scheme.4
4
We note that in Moodie v. Fed. Reserve Bank, 831 F. Supp. 333, 337
(S.D.N.Y. 1993), the district court similarly rejected the Sixth Circuit’s
holding in Leon, 823 F.2d at 932. In Moodie, the district court concluded,
1650 KROSKE v. US BANK CORP.
Federal anti-discrimination statutes are relevant to our
inquiry because federally chartered banks are not exempt
from liability under these laws. See Cooper v. Fed. Reserve
Bank, 467 U.S. 867 (1984) (holding that members of a class
of black employees of a Federal Reserve Bank could maintain
separate actions against the bank under Title VII); see also
Enforcement Guidance on Coverage of Federal Reserve
Banks, EEOC Decision No. N-915-002 (1993) (concluding
that Federal Reserve Banks are not executive agencies and are
covered by Title VII, the ADEA, the Equal Pay Act (“EPA”),
and the Americans with Disabilities Act (“ADA”) as private
employers). Indeed, courts that have addressed the issue con-
sistently have held that banks are subject to liability for dis-
crimination under federal anti-discrimination laws
irrespective of the bank’s right to dismiss an officer (or
employee) “at pleasure.” See, e.g., Leon, 823 F.2d at 931 (not-
ing that plaintiff could have brought her discrimination claim
under Title VII); Diniz v. Fed. Reserve Bank, 2004 WL
2043127, at *2 (N.D. Cal. Sept. 13, 2004) (holding that the
Federal Reserve Bank may be sued for violations of Title
VII); Mueller, 797 F. Supp. at 663 (holding that § 24(Fifth)
does not bar a discrimination claim under the ADEA).
[n]othing in the plain language of [12 U.S.C.] § 341[, which
authorizes Reserve Banks to dismiss certain officers and employ-
ees “at pleasure,”] supports the Bank’s 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.
831 F. Supp. at 337. The court held that “[t]he New York State Human
Rights Law, with provisions analogous to Title VII, creates no additional
employment rights in conflict with the Bank’s status as an employer at
will, nor does it place additional constraints on the Bank’s exercise of its
statutory powers.” Id.; see also Moodie v. Fed. Reserve Bank, 835 F.
Supp. 751, 753 (S.D.N.Y. 1993) (denying motion to reargue motion for
summary judgment, concluding that “Congress did not intend 12 U.S.C.
§ 341(5) to preempt state anti-discrimination laws that are consistent with
federal anti-discrimination legislation”).
KROSKE v. US BANK CORP. 1651
Here, because Kroske has alleged age discrimination under
the WLAD, we are particularly concerned with the congres-
sional intent expressed in the enactment of the ADEA, which
prohibits discrimination in employment on the basis of age.
See 29 U.S.C. § 623. The ADEA is part of “an ongoing con-
gressional effort to eradicate discrimination in the workplace,
[and] reflects a societal condemnation of invidious bias in
employment decisions.” McKennon v. Nashville Banner
Publ’g Co., 513 U.S. 352, 357 (1995). Accordingly, the
ADEA shares a common purpose with Title VII,5 the para-
mount federal anti-discrimination statute: to eliminate dis-
crimination in employment and to remedy the effects of such
discriminatory conduct. Id. at 358. Because the anti-
discrimination laws are part of a consistent remedial scheme,
“[t]he substantive, anti-discrimination provisions of the
ADEA are modeled upon the prohibitions of Title VII.” Id. at
357; see also Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 121 (1985).
[6] The anti-discrimination provisions of the ADEA con-
flict with the banks’ authority to dismiss officers “at plea-
sure.” As a result, we must give effect to the congressional
intent expressed in the ADEA by limiting the power granted
to banks through § 24(Fifth). We recognize that “when two
statutes are capable of co-existence, it is the duty of the
courts, absent a clearly expressed congressional intention to
the contrary, to regard each as effective.” Morton v. Mancari,
417 U.S. 535, 551 (1974). We have held, however, that
§ 24(Fifth) grants banks “the greatest latitude possible to hire
and fire their chief operating officers.” Mackey, 867 F.2d at
526. In light of the broad power extended to banks to dismiss
officers “at pleasure” without limitation, we are not able to
harmonize § 24(Fifth) with the ADEA’s prohibition against
discrimination.
5
Title VII prohibits discrimination in employment on the basis of race,
color, religion, sex, or national origin. 42 U.S.C. § 2000e-2.
1652 KROSKE v. US BANK CORP.
Rather, we conclude that the two provisions are in irrecon-
cilable conflict with regard to the banks’ power to dismiss an
officer on the basis of age. “There is no ambiguity as to the
nature of the remedial scheme Congress enacted in [the
ADEA], and that scheme simply cannot work if [§ 24(Fifth)]
is allowed to operate concurrently.” Kee Leasing Co. v.
McGahan (In re Glacier Bay), 944 F.2d 577, 583 (9th Cir.
1991). Although “repeals by implication are not favored,”
Morton, 417 U.S. at 549 (quoting Posadas v. Nat’l City Bank,
296 U.S. 497 (1936)), where “ ‘provisions in the two acts[,
such as the provisions at issue,] are in irreconcilable conflict,
the later act to the extent of the conflict constitutes an implied
repeal of the earlier one.’ ” Radzanower v. Touche Ross &
Co., 426 U.S. 148, 154 (1976) (quoting Posadas, 296 U.S. at
503).
[7] However, when, as here, “two statutes are partially in
conflict, ‘[r]epeal is to be regarded as implied . . . only to the
minimum extent necessary.’ ” In re Glacier Bay, 944 F.2d at
582 (first alteration in original) (quoting Silver v. N.Y. Stock
Exch., 373 U.S. 341, 357 (1963)). We therefore conclude that
the dismiss-at-pleasure provision of § 24(Fifth) is repealed by
implication only to the extent necessary to give effect to the
ADEA; accordingly, the authority to dismiss officers “at plea-
sure” does not encompass the right to terminate an officer in
a manner that violates the prohibitions against discrimination
enumerated in the ADEA.
[8] It follows that the provision of the WLAD prohibiting
age discrimination does not conflict with the at-pleasure pro-
vision of the National Bank Act. The WLAD provides that it
is an unfair practice for any employer “[t]o discharge or bar
any person from employment because of age.” Wash. Rev.
Code § 49.60.180(2). This provision mirrors the substantive
provisions of the ADEA and is interpreted consistently with
the ADEA. See Anderson v. Pac. Mar. Ass’n, 336 F.3d 924,
926 n.1 (9th Cir. 2003) (“Washington’s Law Against Discrim-
ination tracks federal law . . . .”); Grimwood v. Univ. of Puget
KROSKE v. US BANK CORP. 1653
Sound, Inc., 753 P.2d 517, 520 (Wash. 1988) (holding that
because Wash. Rev. Code § 49.60.180 “does not provide any
criteria for establishing an age discrimination case,” Washing-
ton courts look to federal cases construing the ADEA). Thus,
in the absence of clear congressional intent to the contrary, we
hold that Kroske’s claim of age discrimination under the
WLAD is not preempted by § 24(Fifth), as limited by the
ADEA. Cf. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 101-06
(1983) (holding that state anti-discrimination laws are not
expressly preempted by ERISA insofar as they are consistent
with Title VII); Aloha Islandair Inc. v. Tseu, 128 F.3d 1301,
1303 (9th Cir. 1997) (concluding that state disability law is
not preempted by the Airline Deregulation Act based, in part,
on the fact that pilots are not exempt from the Americans with
Disabilities Act).
Our conclusion is buttressed by the “importance of state
fair employment laws to the federal enforcement scheme.”
Shaw, 463 U.S. at 102. Certainly, “many States look to Title
VII[, the model for the ADEA,] as a matter of course in defin-
ing the scope of their laws.” Id. at 106. Moreover, parallel
state anti-discrimination laws are explicitly made part of the
enforcement scheme for the federal laws. See Oscar Mayer &
Co. v. Evans, 441 U.S. 750, 755-56 (1979); Prudential Ins.
Co. of Am. v. Lai, 42 F.3d 1299, 1303 n.1 (9th Cir. 1994). Not
only does the ADEA disclaim any preemptive effect on state
laws, see 29 U.S.C. § 633(a), it also incorporates consistent
state anti discrimination laws to serve as the primary enforce-
ment mechanism of the enumerated rights, see id.
§§ 626(d)(2), 633(b).
Indeed, the ADEA, like Title VII, provides that, in states
with anti-discrimination laws that prohibit the conduct the
complainant alleges, the state administrative agency has
exclusive jurisdiction over a charge of discrimination for the
first sixty days after the charge is filed. See id. § 633(b); see
also Oscar Mayer & Co., 441 U.S. at 755 (stating that § 14(b)
of the ADEA, 29 U.S.C. § 633(b), was “patterned after and is
1654 KROSKE v. US BANK CORP.
virtually in haec verba with § 706(c) of Title VII,” 42 U.S.C.
§ 2000e-5(c)). Congress intended for these provisions “to
screen from the federal courts those problems of civil rights
that could be settled to the satisfaction of the grievant in ‘a
voluntary and localized manner.’ ” Id. (quoting 110 Cong.
Rec. 12725 (1964) (remarks of Sen. Humphrey)). They were
“intended to give state agencies a limited opportunity to
resolve problems of employment discrimination and thereby
to make unnecessary, resort to federal relief by victims of the
discrimination.” Id.
Here, Kroske brought her suit under the WLAD, which,
pursuant to the State’s police powers,
declares that practices of discrimination against any
of [Washington’s] inhabitants because of race, creed,
color, national origin, families with children, sex,
marital status, age, or the presence of any sensory,
mental, or physical disability or the use of a trained
dog guide or service animal by a disabled person are
a matter of state concern, that such discrimination
threatens not only the rights and proper privileges of
its inhabitants but menaces the institutions and foun-
dation of a free democratic state.
Wash. Rev. Code § 49.60.010 (emphasis added). It further
creates the Washington Human Rights Commission, a desig-
nated Fair Employment Practices (“FEP”) agency under 29
C.F.R. § 1601.74, and grants the agency general jurisdiction
and necessary “powers with respect to elimination and pre-
vention of discrimination.” Wash. Rev. Code. § 49.60.010.
Specifically, as discussed, Kroske alleges that the Bank ter-
minated her in violation of the WLAD, id. § 49.60.180(2),
which provides that it is an unfair practice for any employer
“[t]o discharge or bar any person from employment because
of age.”6 This provision is consistent with the substantive pro-
6
Wash. Rev. Code § 49.44.090 further provides, in relevant part:
It shall be an unfair practice (1) For an employer or licensing
KROSKE v. US BANK CORP. 1655
visions of the ADEA and plays an integral role in the enforce-
ment of the federal anti-discrimination scheme. See Oscar
Mayer & Co., 441 U.S. at 756. The nature of the collaborative
anti-discrimination scheme and the WLAD’s function in it
supports our conclusion that Kroske’s age discrimination
claim, which is substantively the same as a claim of age dis-
crimination under the ADEA, is not preempted by the Bank’s
power to dismiss officers “at pleasure” under § 24(Fifth).
We are mindful, however, of Congress’s intent to create a
national banking system with “uniform and universal opera-
tion through the entire territorial limits of the country.” Tal-
bott v. Bd. of Comm’rs, 139 U.S. 438, 443 (1891). We
therefore recognize that state law prohibitions against dis-
criminatory termination that are not consistent with federal
anti-discrimination laws may frustrate the congressional pur-
pose of uniform regulation reflected in the National Bank Act.
Nonetheless, the fact that some state law provisions prohibit
termination on grounds that are more expansive than the
grounds set forth in federal law does not undermine our con-
clusion that Kroske’s age discrimination claim under the
WLAD, which substantively mirrors a claim under the
ADEA, is not preempted. Cf. Shaw, 463 U.S. at 101-06 (hold-
ing that New York’s Human Rights Law is not preempted
under ERISA insofar as it prohibits practices that are covered
under Title VII).
agency, because an individual is forty years of age or older, to
refuse to hire or employ or license or to bar or to terminate from
employment such individual, or to discriminate against such indi-
vidual in promotion, compensation or in terms, conditions or
privileges of employment: PROVIDED, That employers or
licensing agencies may establish reasonable minimum and/or
maximum age limits with respect to candidates for positions of
employment, which positions are of such a nature as to require
extraordinary physical effort, endurance, condition or training,
subject to the approval of the executive director of the Washing-
ton state human rights commission or the director of labor and
industries through the division of industrial relations.
1656 KROSKE v. US BANK CORP.
[9] In sum, we conclude that the congressional enactment
of the ADEA has placed limits on the Bank’s authority to dis-
miss officers “at pleasure” under § 24(Fifth). In light of the
ADEA’s prohibition against age discrimination and the inte-
gral role of state anti-discrimination laws in the federal anti-
discrimination scheme, we conclude that Congress did not
intend for § 24(Fifth) to preempt the WLAD employment dis-
crimination provisions, at least insofar as they are consistent
with the prohibited grounds for termination under the ADEA.
Thus, Kroske’s claim of age discrimination under the WLAD
is not barred.
IV. Conclusion
We conclude that diversity jurisdiction is proper. We also
conclude that Kroske’s age discrimination claim under the
WLAD is not preempted by the National Bank Act. We there-
fore reverse the district court’s grant of summary judgment in
favor of U.S. Bank Corp. and remand for further proceedings
consistent with this opinion.
REVERSED and REMANDED.