testimony about Defendant's current net worth and financial
condition and that of its parent company, First of America. If
Defendant attempts to make a "failing bank defense," evidence
of Defendant's current net worth and financial condition will
8. Evidence Regarding Front Pay. The court reserves until
trial its ruling on the exclusion of all evidence regarding the
issue of front pay from the jury, or, alternatively, whether
front pay, if appropriate, should be determined by the court
and not the jury.
9. Testimony Regarding Other Lawsuit and Plaintiff's Exhibit
26. The court denies Defendant's motion regarding testimony
concerning the complaint and lawsuit, First National Bank of
the Quad Cities, as Trustee Under Land Trust Agreement No. 1746
v. Petersen, Harned, Von Maur, No. 833-000836, and Plaintiff's
Exhibit 26, with the provision that each party may submit a
limiting jury instruction.
10. Plaintiff's Testimony as an Expert. The court denies
Defendant's motion regarding exclusion of testimony by
Plaintiff as an expert witness on lending practices. The court
will allow Plaintiff to testify as an expert with the provision
that each party may submit a cautionary jury instruction.
11. Testimony Regarding Defendant's Calculation of Pension
Benefits. The court denies Defendant's motion to exclude
testimony and documents regarding the Defendant Board's
executive committee meeting on April 15, 1986 involving
instructions to President Clark to calculate Plaintiff's
pension and fringe benefit entitlements. However, the court
requests that Plaintiff advise the court before introducing
12. Whitmore Statement. The court grants Defendant's motion
regarding "Charles Whitmore's 1984 early retirement" statement.
The court will allow the Whitmore Outline into evidence but the
"early retirement" statement must be redacted.
13. Testimony Regarding Abstract Age Comments or
Generalities. The court grants Defendant's motion regarding the
exclusion of abstract age comments or generalities involving or
referring to Defendant's former Chairman, Lewis B. Wilson, with
the further provision that if Plaintiff intends to elicit
testimony about age comments involving other persons,
Plaintiff's counsel will first inform that court of that
intended testimony. No reference to abstract age comments or
generalities will be allowed by the parties during opening
14. Bank Documents Reflecting Ages and Salaries of Bank
Officers. The court denies Defendant's motion regarding the
exclusion of testimony or evidence pertaining to Bank documents
containing the ages and salaries of Bank officers. Defendant
may rebut this evidence by introduction of documents which the
Comptroller of the Currency required the Bank to file.
15. Evidence Regarding Post-Termination Settlement. The court
grants Defendant's motion regarding settlement or compromise
offers made by Defendant to Plaintiff after his termination.
16. Expert Deposition Testimony of Bill Frymoyer or Joseph
Beres. The court grants Defendant's motion regarding the
exclusion of any testimony or evidence about or in reliance on
the expert deposition testimony of Bill Frymoyer or Joseph
Beres. Plaintiff concedes this point as not such testimony is
Defendant's Second Supplemental Motion for Summary Judgment.
This lawsuit arises out of the termination by Defendant First
National Bank of the Quad Cities ("Bank"), of Plaintiff
Theodore Mueller ("Mueller"), a former Executive Vice President
in charge of lending for the Bank. In his complaint, Mueller
alleged that the Bank (1) violated the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), when
it discharged him on May 1, 1986; (2) interfered with his
rights under the Employee Retirement Income and Security Act of
1974, 29 U.S.C. § 1001 et seq. ("ERISA"),
by discharging him 28 months before he was eligible for early
retirement; (3) discharged him in breach of both an alleged
oral contract to employ him until he found another job, and an
implied contract created pursuant to an employee handbook; (4)
defamed him; and (5) committed the tort of "willful and wanton
conduct." Mueller later voluntarily dismissed his defamation
and willful and wanton conduct allegations.
On September 2, 1988, the Bank moved for summary judgment as
to each of Mueller's remaining statutory and contract claims.
In an order entered on March 20, 1989, this court granted
partial summary judgment in favor of the Bank, dismissing
Mueller's contract claims because they were preempted by the
"at pleasure" provision of the National Bank Act ("the Act"),
12 U.S.C. § 24 (Fifth), and, in any event, did not constitute
viable contract claims based on either a written contract or
promissory estoppel theory. This court found that (1) the
Defendant is a national bank subject to the National Bank Act;
(2) Mueller was an "officer" of a national bank and otherwise
subject to dismissal "at pleasure" within the meaning of §
24 (Fifth) of that Act; and (3) the Bank complied with the
procedural requirements of the Act in connection with Mueller's
dismissal. See, March 20, 1989 order, pp. 2, 15-18. However,
this court denied summary judgment with respect to Mueller's
statutory ADEA and ERISA claims, finding genuine issues of
material fact as to the merits of these claims. On December 17,
1990, this court denied the Bank's first supplemental motion
for summary judgment raising additional arguments concerning
the merits of Mueller's federal statutory claims.
On August 8, 1991, the Bank filed its second supplemental
motion for summary judgment, asserting that the prohibitions
contained in the ADEA and ERISA, to the extent that they limit
or constrain the dismissal of national bank officers, conflict
with the "at pleasure" discharge provision of the National Bank
Act. The Bank further argued that neither the ADEA nor ERISA
expressly or impliedly repealed the more specific National Bank
Act "at pleasure" provision.
The issue in this case is whether there is a conflict between
the "at pleasure" language in § 24 (Fifth) of the National Bank
Act and provisions contained in the ADEA and ERISA regarding
the conditions under which a national bank governed by the Act
may terminate a bank officer. If a conflict does exist between
the statutes, the court must decide whether 12 U.S.C. § 24
preempts the provisions of the ADEA and ERISA. Section 24
entitled Corporate Powers of Associations, states that a
national banking association:
shall have power . . . 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 of any of them at pleasure, and appoint
others to fill their places. (Emphasis added).
The language of this provision whereby banks are given leeway
to terminate bank officers "at pleasure," must be analyzed in
conjunction with provisions of the ADEA, which purports to
"promote employment of older persons based on their ability
rather than age" and "prohibit arbitrary age discrimination,"
29 U.S.C. § 621(b), and provisions of ERISA, which purports to
"protect interstate commerce and the interests of participants
and employee benefit plans and their beneficiaries." 29 U.S.C. § 1001(b).
In support of its motion for summary judgment, Defendant
argues that 12 U.S.C. § 24 (Fifth) conflicts with the
provisions of the ADEA and ERISA. Because there is a direct
conflict, Defendant argues that § 24 should preempt the
provisions of ADEA and ERISA, thereby destroying Plaintiff's
remaining claims based on violations of the ADEA and ERISA.
Defendant argues that the statutory language contained in §
24 (Fifth), whereby a national banking association may "dismiss
such officers . . . at pleasure" should be interpreted to mean
that national bank directors are vested with unfettered
discretion to dismiss bank officers for any reason or no reason
at all. Kemper v. First National Bank, 94 Ill. App.3d 169, 49
Ill.Dec. 799, 801, 418 N.E.2d 819, 821 (5th Dist. 1981)
(provision for dismissal of officers "at pleasure" consistently
construed to allow national bank to discharge an officer
without liability); Bollow v. Federal Reserve Bank of San
Francisco, 650 F.2d 1093, 1098-1100 (9th Cir. 1981) (construing
analogous Federal Reserve Act provision); Jaffe v. Federal
Reserve Bank of Chicago, 586 F. Supp. 106, 107-08 (N.D.Ill.
1984) ("at pleasure" provision of Federal Reserve Act prevents
development of any reasonable expectation of continued
employment); Mahoney v. Crocker National Bank, 571 F. Supp. 287,
289 (N.D.Cal. 1983) (under National Bank Act, board may dismiss
officer without incurring liability for breach of contract or
Defendant argues that the breadth of 12 U.S.C. § 24 (Fifth)
goes beyond contractual rights. Defendant contends that this is
evidenced by cases where the National Bank Act has preempted
employee discrimination laws at the state level. Ana Leon T. v.
Federal Reserve Bank of Chicago, 823 F.2d 928, 931 (6th Cir.
1987) (employees rights under Michigan civil rights statute
were preempted by "at pleasure" language of Federal Reserve
Relying on general rules of statutory construction, Defendant
asserts § 24 of the Act necessarily preempts any restrictions
implemented by the ADEA and ERISA because the National Bank Act
became law in 1864 and is a narrow statute addressing the
specific rights of national banks. Defendant argues that the
ADEA and ERISA are more general statutes addressing employees'
rights in all sectors which fail to repeal or qualify the
authority granted banking employers in the National Bank Act
previously. Neither the ADEA nor ERISA make express reference
to the National Bank Act and its provision permitting dismissal
of bank officers "at pleasure." To the contrary, § 514(d) of
ERISA states that:
Nothing in this subchapter shall be construed to
alter, amend, modify, invalidate, impair or
supersede any law of the United States . . . or
any rule or regulation issued under any such law.
29 U.S.C. § 1144(d). Defendant suggests that this provision
expresses congressional intent not to disturb existing federal
law and policies where ERISA would otherwise create a conflict.
See, Allen v. Wachovia Bank & Trust Company, 470 F. Supp. 18, 21
(E.D.N.C. 1978) (relying upon § 514(d), the court ruled that
the National Bank Act venue provision controls over ERISA venue