Lavelle v. BankAmerica Corp.

NANCY LAVELLE, Plaintiff and Appellant, v. BANKAMERICA CORPORATION et al., Defendants and Respondents. No. A076936 (San Francisco County Super. Ct. No. 968512) California Court of Appeal First Appellate District Division Three Filed September 29, 1998 CERTIFIED FOR PARTIAL PUBLICATION*         Plaintiff Nancy Lavelle sued BankAmerica Corporation (BAC), Bank of America National Trust and Savings Association (Bank of America), and her supervisor, Keith Wirtz, (collectively defendants) for employment discrimination. Plaintiff alleged three causes of action: (1) age and sex discrimination in violation of California's Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.); (2) breach of the implied covenant of good faith and fair dealing in her employment contract; and (3) tortious "refusal to return Plaintiff to work following her leave of absence" in violation of public policy.
        Plaintiff challenges two separate trial court rulings granting summary judgment to the two corporate defendants. The first ruling granted summary judgment to Bank of America, which is a national banking association, on the ground the National Bank Act (Bank Act) (12 U.S.C. § 21 et seq.) preempts all of plaintiff's state law claims. The trial court concluded the Bank Act specifically permits a national banking association to dismiss its officers at pleasure, thereby preempting any and all state causes of action arising out of the termination of its officers. The second ruling granted summary judgment to BAC-a bank holding company-on the ground it has no liability to plaintiff because: (1) it was not her employer; and (2) it did not incur any liability to plaintiff as a result of its relationship with its wholly owned subsidiary (and plaintiff's true employer) Bank of America. After the trial court entered separate judgments in favor of BAC and Bank of America, plaintiff filed this timely appeal. ¹
        We partially reverse the judgment in favor of Bank America because we conclude the Bank Act does not preempt plaintiff's statutory cause of action for employment discrimination under the FEHA to the extent federal law also prohibits such discrimination (Marques v. Bank of America (1997) 59 Cal.App.4th 356). However, we agree the Bank Act preempts plaintiff's non-FEHA contract and tort claims against Bank of America. We also agree with the trial court that, as a matter of law, plaintiff was not an employee of BAC, and BAC is not derivatively liable to plaintiff. Consequently, we permit plaintiff to proceed with her FEHA claim against Bank of America only, but otherwise affirm the summary judgments.

I FACTS         Plaintiff was hired by Security Pacific National Bank (Security Pacific) in 1980. She worked there as an Investment Officer.
        In April 1992, Security Pacific merged with Bank of America. At that point Security Pacific ceased to exist and all employees of Security Pacific, including plaintiff, became employees of Bank of America.
        Both before and after the merger, plaintiff was a Senior Portfolio Manager or Section Manager in the Financial Management & Trust Services Department (Trust Services Department) for Security Pacific and then later Bank of America. Her primary duties were to manage the investment portfolios of numerous trust accounts, and to supervise other portfolio managers. During her entire tenure with Bank of America, Bank of America (not BAC) was responsible for paying plaintiff's salary, deducting federal, state and social security taxes from her wages, paying unemployment taxes on her behalf, and providing plaintiff with workers' compensation insurance.
        On May 21, 1992, the board of directors made plaintiff a vice-president of Bank of America. At that time, plaintiff was a senior portfolio manager in Bank of America's Trust Services Department. Plaintiff held this position until September 9, 1992, when she announced her intention to begin an extended leave of absence the next day due to job related stress, allegedly as a result of sex and age discrimination.
        When plaintiff returned to work on October 27, 1993, she was told that another employee had filled her former position. Although plaintiff believed there were open positions that were the same or similar to those she had held, her supervisor, Keith Wirtz, refused to place her in any of those positions. Plaintiff was informed she was free to look for another position with the Bank, but if she failed to find another position, her employment would be terminated. On February 4, 1994, plaintiff was formally placed in the Employee Transition Program for a 60-day period during which Bank of America paid her full salary while she looked for another position and considered whether to accept an enhanced severance package. Plaintiff did not find another position and her employment with Bank of America terminated on April 5, 1994, at the end of the 60-day transition period. Bank of America's board of directors formally ratified plaintiff's termination at its regularly scheduled meeting on May 2, 1994.
        After she was terminated, plaintiff filed a complaint for employment discrimination alleging three causes of action. The first cause of action alleged a violation of the FEHA (Gov. Code, § 12900 et seq.) in that plaintiff "has been subjected to a continuous pattern of [employment] discrimination based on her sex and age." Among other things, plaintiff, who is over forty years of age, alleged she received less pay than male employees with comparable experience, did not receive other privileges of employment granted to male and younger female workers, and was subject to a sexually hostile working environment. In addition, plaintiff alleged that as part of the continuing pattern of sex and age discrimination against her, in the Spring of 1992 her supervisor, Wirtz, devised a scheme to demote her and to install a favored male employee in her position as manager. She became despondent over the continuing discriminatory treatment and took a stress leave of absence in September of 1992. Although the defendants had taken steps to preserve the positions of male employees who were on medical leave of absence, they made no such efforts on her behalf. When plaintiff returned to work on October 27, 1993, defendants refused to appoint her to any positions, although openings existed for which she was qualified. Plaintiff alleged "the failure and refusal of Defendants to return Plaintiff to work was due in material part to her sex, age, and her opposition to being discriminated against . . . ."
        Plaintiff's second cause of action was for breach of the covenant of good faith and fair dealing in her employment contract. Here she alleged that, in addition to the facts specified above, defendants had a contractual duty to take all steps reasonably necessary to find a new position for plaintiff, but defendants failed to take reasonable steps to preserve her position or to return her to another comparable position.
        Finally, in her third cause of action, plaintiff alleged defendants had tortiously refused to find her a new position "in violation of public policy." The gist of this cause of action is that plaintiff had complained to management that the Bank was imposing excess fees on trust accounts. When management did not act on these complaints, plaintiff communicated these allegations to a reporter with the San Francisco Chronicle who wrote a series of articles challenging the fees Bank of America charged its trust customers. Plaintiff alleged "[o]ne of the motivating factors in Defendants' refusal to return Plaintiff to work after her leave of absence, despite her years of experience, the openings and needs of Defendants, and the policies of Defendants, was that Defendants believed that Plaintiff had or was potentially a source of information" to the San Francisco Chronicle reporter. ²
        Bank of America and BAC filed separate motions for summary judgment against plaintiff. Neither motion challenged the substance of plaintiff's allegations. Instead, Bank of America argued the dismissal-at-pleasure provision of the Bank Act preempted all state law causes of action arising from the termination of a bank officer. BAC, on the other hand, argued plaintiff was never its employee and that it had no liability to plaintiff as a result of its relationship with its wholly owned subsidiary-and plaintiff's true employer-Bank of America. The trial court granted both motions on the grounds stated in the motions.

II DISCUSSION         A "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant "has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . ." (Id. subd. (o)(2).) In reviewing an order granting summary judgment, we examine the facts presented to the trial court and independently determine their effect as a matter of law. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464.)

        A. The Action Against Bank of America
        We first consider plaintiff's action against Bank of America, which is a national banking association. As indicated, we conclude plaintiff may maintain her first cause of action against Bank of America, but that the Bank Act preempts her second and third causes of action.

        1. The Bank Act Does Not Bar Plaintiff's FEHA Claim For Age and Sex Discrimination.
        We first consider whether the Bank Act preempts plaintiff's state FEHA claim for age and sex discrimination. We conclude that a fired bank officer may bring a discrimination claim under the FEHA in state court, but only on grounds that would be actionable under federal law. That is, a fired bank officer may maintain an FEHA action in state court but may only seek redress for discriminatory conduct that is also prohibited under federal law. In the context of bank officer terminations, the FEHA cannot be a source of independent substantive rights separate from federal law.
        While this appeal was pending, the Court of Appeal, First Appellate District, Division Two, held in Marques v. Bank of America, supra, 59 Cal.App.4th 356, that the Bank Act does not preempt wrongful termination claims brought under the FEHA that allege sex or age discrimination. The Supreme Court denied review in Marques on March 11, 1998, and we subsequently gave the parties an opportunity to brief the issues that case raises. We have reviewed the parties' briefs, and conclude we should follow Marques. Consequently, we reverse the judgment in favor of Bank of America to the extent it dismisses plaintiff's first cause of action (the FEHA claim).
        The Bank Act 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 [hereafter § 24, Fifth].) The trial court concluded undisputed evidence showed Bank of America is a national banking association and plaintiff was an officer (vice-president) whose termination was ratified by the board of directors (see Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1103 (Wells Fargo)). It therefore ruled that section 24, Fifth preempted all of her state based claims against Bank of America.
        However, in Marques, supra, the court held that the Bank Act does not preempt wrongful termination actions brought under the FEHA to the extent they allege race, sex or age discrimination that are also prohibited under federal law. The Marques court reasoned that the FEHA parallels the federal employment anti-discrimination law (Title VII) in banning sex and race discrimination in employment and the federal Age Discrimination in Employment Act (ADEA) in banning age discrimination in employment. (59 Cal.App.4th at pp. 362-363.) The Marques court concluded that, in light of the federal anti-discrimination legislation, the FEHA does not conflict with the Bank Act's dismissal-at-pleasure provision to the extent the FEHA prohibits employer conduct that is also prohibited by the federal legislation. (Id. at pp. 361-362.) As the court put it: "The national standard enunciated by Congress in Title VII and the ADEA forbids dismissal on the basis of age, sex, and national origin, precisely the three types of discrimination alleged here. . . . [¶] . . . Since, under federal law, a national bank may no longer exercise the power to dismiss at pleasure an officer who can show her termination was discriminatory [on the basis of age or sex], state anti-discrimination statutes prohibiting such terminations are not preempted." (Id. at p. 363, italics added.)
        Nothing in this case distinguishes it from Marques. Bank of America's counsel conceded as much at oral argument. Nevertheless, Bank of America urges us not to follow Marques on the ground it was wrongly decided. We have carefully reviewed that case and its underlying authorities and conclude that Marques is correct.
        The thrust of Bank of America's attack on Marques is that the court misapplied the doctrine of repeal by implication. In a nutshell, the Bank argues that repeal by implication is disfavored; we must "harmonize" conflicting statutes whenever possible to avoid repeal by implication; we can harmonize the Bank Act's dismissal-at-pleasure provision and Title VII and the ADEA by creating the most narrow exception possible to the dismissal-at-pleasure provision (namely, an exception for federal Title VII and ADEA claims only); and it is illogical to conclude that just because Title VII and ADEA claims are allowed, parallel state (i.e. FEHA) claims are also allowed. ³ (See Astoria Federal S. & L. Assn. v. Solimino (1991) 501 U.S. 104, 109 ["[S]uperior values of harmonizing different statutes and constraining judicial discretion in the interpretation of the laws, prompt the . . . rule that legislative repeals by implication will not be recognized, insofar as two statutes are capable of co-existence, 'absent a clearly expressed congressional intent to the contrary.' "]; Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 249-250 [" '[T]he law shuns repeals by implication . . . .' [Citation.] . . . Thus, to avoid repeals by implication 'we are bound to harmonize . . . provisions' that are claimed to stand in conflict."]; Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 135 [" '[W]here two statutes treat of the same subject, one being special and the other general, unless they are irreconcilably inconsistent, the latter, although latest in date, will not be held to have repealed the former, but the special act will prevail in its application to the subject matter as far as coming within its particular provisions. . . .' "].)
        However, upon a close reading of Marques and its underlying cases-primarily Aalgaard v. Merchants Nat. Bank, Inc. (1990) 224 Cal.App.3d 674-we believe Bank of America has misconstrued the significance of the "repeal by implication" doctrine in the Marques court's analysis. In particular, we conclude that Bank of America's final assertion-that it is illogical to conclude that because Title VII and ADEA claims are allowed, parallel state claims are also allowed-is simply incorrect. This is because the present case involves more than a simple issue of "repeal by implication" between federal statutes. Here, the primary issue is whether, under current law, Congress intended to preempt state anti-discrimination laws barring age and sex discrimination in cases involving bank officers. Looking at Congress' full intent, as evidenced in Section 24, Fifth, Title VII and the ADEA, we conclude Congress did not intend to bar state law actions involving claims of age or sex discrimination.
        Although Bank of America attempts to cast Marques as primarily a "repeal by implication" case involving a conflict between federal statutes, Marques is, first and foremost, a preemption case involving a potential conflict between state and federal legislation. In preemption cases of this sort, the burden is on the party claiming preemption (i.e., Bank of America) to prove that a federal law (section 24, Fifth of the Bank Act) was intended to preempt state law (here the FEHA). (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 937.) The rules on federal preemption were set out in Aalgaard, supra, and are worth reading carefully:
        " 'The pre-emption doctrine, which has its roots in the Supremacy Clause, U.S. Const, Art VI, cl 2, requires [the reviewing court] to examine congressional intent. Pre-emption may be either express or implied, and "is compelled where Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Absent explicit pre-emptive language, Congress' intent to supersede state law altogether may be inferred because "[t]he scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," because "the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject," or because "the object sought to be obtained by federal law and the character of obligations imposed by it may reveal the same purpose." [¶] Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." ' " (Aalgaard v. Merchants Nat. Bank, Inc., supra, 224 Cal.App.3d at p. 686, quoting Fidelity Federal Sav. & Loan Assn. v. de la Cuesta (1982) 458 U.S. 141, 152-153.)
        Thus, there are three general types of preemption: (1) express preemption (where the federal legislation expressly states it is intended to preempt state legislation); (2) implied preemption through occupation of the field; and (3) implied preemption by actual conflict. We note that in the first two types of preemption, all state laws (whether consistent or inconsistent with federal legislation) are preempted. However, the third type of preemption-preemption by conflict-only preempts those state laws that actually conflict with the federal legislation by undermining its purpose.
        This case does not involve express preemption and Bank of America does not contend it does. Moreover, in Aalgaard, the court concluded that the Bank Act is not a comprehensive statutory scheme occupying the entire field relating to national banks. Consequently, state anti-discrimination statutes have not been preempted by a comprehensive federal statutory scheme that occupies the field relating to national banks. (224 Cal.App.3d at p. 688.) Bank of America does not contend otherwise. ⁴ " 'Where Congress has not preempted the entire field, a state law will be upheld if it does not conflict with, or is authorized by, the federal statute.' " (Ibid.)
        The Aalgaard court consequently turned to the issue of whether there was an actual conflict (as opposed to preemption by occupation of the field) between the Bank Act's dismissal-at-pleasure provision and the FEHA's prohibition against firing a person because of their age. The Aalgaard court noted that an actual conflict " 'will be found when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." ' (International Paper Co. v. Ouellette (1987) 479 U.S. 481, 491-492. . . .) The 'controlling principle' then is that 'any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause.' (Perez v. Campbell (1971) 402 U.S. 637, 652.)" (224 Cal.App.3d at p. 688.) ⁵ In our view, these are the central principles that guided the Aalgaard court, the Marques court, ⁶ and should guide this court in deciding the preemption issue.
        The Aalgaard court examined in detail the purpose of the Bank Act's dismissal-at-pleasure provision, since it had to determine whether the FEHA would interfere with that purpose. The court noted that "at the heart of this inviolable dismissal provision is a linkage with public policy protecting the financial stability and fiscal integrity of banks by making it beyond the powers of bank directors to enter into any contract restricting their ability to respond expeditiously to financial threats posed by bank officers. [Citations.]" (Aalgaard, supra, 224 Cal.App.3d at p. 689.)
        The Aalgaard court went on to summarize cases where bank employees had attempted to rely on state law (not just private contracts) to overcome the "dismissal-at-pleasure" provision in the Bank Act and similar laws. The Aalgaard court concluded that the cases it had summarized "support[] the proposition that employment rights of officers of national banking associations which conflict with the right of the board of directors to dismiss them at pleasure are preempted by section 24 (Fifth) whether those rights arise by virtue of an agreement or are imposed by state law, and whether framed as contractual or tortious causes of action." (224 Cal.App.3d at p. 692.)
        Thus, the court concluded that, as a general proposition the FEHA age discrimination cause of action was preempted by section 24, Fifth. (224 Cal.App.3d at p. 692.)
        Importantly, the employee in Aalgaard made a similar (though distinguishable) argument to the one the Marques court later considered. In Aalgaard, the plaintiff contended the preemption doctrine could not be applied to his state age discrimination claim because Congress had enacted a comparable anti-discrimination statute; namely, the ADEA, which only applies to employers with 20 or more employees. (224 Cal.App.3d at pp. 693-694.) The Aalgaard court admitted that "[t]he federal age discrimination act provides no exception for national banks (or any other form of federally chartered financial institution) and since it was enacted long after the National Bank Act it may well be that under 'familiar statutory interpretation, when there is such a conflict, the most recent and more specific congressional pronouncement will prevail over a prior, more generalized statute.' [Citations.] But even if preemption can no longer be applied to those large banks, it does not follow that Congress intended that small national banks exempted from the provisions of the federal age discrimination statute because of size should be bound by more sweeping state statutes. By implication, Congress arguably has decreed that national banks with 20 or more employees are bound by the federal age discrimination statute. But as to national banks with less than 20 employees, the National Bank Act and the federal discrimination statute are not irreconcilable. . . . Consequently, the extant federal statute prevails and a conflicting state statute cannot be applied to small national banks having less than 20 employees. (See, e.g., E. E. O. C. v. County of Santa Barbara (9th Cir. 1982) 666 F.2d 373, 378.)" (Id. at p. 694, italics added.)
        Thus, the Aalgaard court ultimately decided that the federal legislation did not apply to the small bank before it and thus the ADEA had no bearing on the preemption issue.
        Marques begins where Aalgaard left off. (Marques, supra, 59 Cal.App.4th at pp. 360-361.) In Marques, unlike Aalgaard, the pertinent federal anti-discrimination statutes-Title VII (sex) and the ADEA (age)-unquestionably applied to the defendant (Bank of America). (59 Cal.App.4th at p. 361, fn. 2; see fn. 3, ante.) Although the Marques court makes a reference to the doctrine of "repeal by implication," (59 Cal.App.4th at p. 362, & fn. 3, ante) this doctrine, which exists to resolve conflicts between federal statutes, was of secondary importance to the central issue before the court: whether, in light of section 24, Fifth as it has been modified by Title VII and the ADEA, Congress intended to preempt parallel state anti-discrimination actions involving bank officers. On this central issue the Marques court reasoned: "Since, under federal law, a national bank may no longer exercise the power to dismiss at pleasure an officer who can show her termination was discriminatory, state antidiscrimination statues prohibiting such terminations are not preempted. [¶] . . . The bank concedes that, of the three routes to preemption (express preemption, occupation of the field, and preemption by conflict), it can prevail only via the latter. Section 24, Fifth . . . necessarily conflicts with the FEHA, it maintains. But, at least as to the subjects of the discrimination dealt with in both Title VII and the FEHA (and we reemphasize that this case concerns only such), the enactment of Title VII in 1964 [and the ADEA subsequently] effectively vitiated any such conflict. Subsequent to that enactment, there is simply no conflict between federal law (considered in its fullest sense) and California's FEHA." (59 Cal.App.4th at pp. 363-364, italics added, footnotes omitted.)
        In other words, the Marques court found that, viewed in the light of the restrictions Title VII and the ADEA place on a bank's power to dismiss its officers on the basis of age or sex, the FEHA does not " 'stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " (International Paper Co. v. Ouellette, supra, 479 U.S. at pp. 491-492, italics added.) To determine Congress' full purpose and objectives, we must look not only at section 24, Fifth, but also at Title VII and the ADEA which modify that provision. Looking at all three federal statutes it is clear that Congress' "full purpose and objectives" are not violated by permitting state actions grounded on proscribed discriminatory dismissals that are also prohibited under federal law.
        In summary, a fired bank officer may bring a discrimination claim under the FEHA in state court, but only on grounds that would be actionable under federal law. The FEHA cannot supply an independent source of substantive law to protect bank officers who have been fired. Consequently, there is no preemption of the FEHA claim to the extent plaintiff has alleged sex and age discrimination that would also be prohibited under federal law. ⁷

        2. The Bank Act Bars Plaintiff's Contract And Public Policy Causes of Action Against Bank Of America.
        Although plaintiff may maintain her FEHA cause of action against Bank of America, the trial court properly granted summary judgment in favor of Bank of America on her contract and tortious violation of public policy causes of action. There is no question that section 24 of the Bank Act preempts all state law causes of action by a bank officer for breach of an employment agreement, including breach of the covenant of good faith and fair dealing. (Wells Fargo, supra, 53 Cal.3d 1082, 1087-1088; Inglis v. Feinerman (9th Cir. 1983) 701 F.2d 97, 99; Mardula v. Rancho Dominguez Bank, supra, 43 Cal.App.4th at p. 791.) In addition, the cases indicate section 24 also preempts an officer's cause of action alleging tortious discharge in violation of public policy. (Inglis v. Feinerman, supra, 701 F.2d at p. 99 [construing similar language under the Federal Reserve Act, court held that dismissal-at-pleasure provision preempted vice-president's claim that he was fired for "his insistence that the Bank conform its practices to federal law"]; Walleri v. Federal Home Loan Bank of Seattle (9th Cir. 1996) 83 F.3d 1575, 1582; Mardula v. Rancho Dominguez Bank, supra, 43 Cal.App.4th at p. 793 [section 24 bars officers from claiming discharge constituted "breach of a state law principle forbidding discharge on grounds that contravene public policy"]; Aalgaard v. Merchants Nat. Bank, Inc., supra, 224 Cal.App.3d at p. 692; see also, Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 888-889; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669-670.)
        Plaintiff essentially concedes that, as a general proposition, the Bank Act's dismissal-at-will provision bars an officer's action for breach of an employment agreement or tortious discharge in violation of public policy. She contends, however, that section 24 of the Bank Act does not bar her contract or tort causes of action because Bank of America failed to meet that section's procedural requirements. We reject this argument.
        In order to invoke section 24's protection, a national banking association's board of directors must take action to dismiss the bank officer. (Wells Fargo, supra, 53 Cal.3d 1082, 1103.) Thus, in Wells Fargo, the Supreme Court held that "section 24 does not preempt state law causes of action for wrongful discharge by a former national bank officer unless the officer was dismissed by the bank's board of directors itself or the discharge was approved or ratified by the board." (Id. at p. 1103.) Despite this rather clear directive, plaintiff contends section 24 does not preempt state causes of action where a lower level bank manager-such as Mr. Wirtz-makes the actual decision to terminate an officer, and the board of directors merely ratifies that decision in a subsequent meeting. She contends board of director ratification is only effective where a committee of board members, which the entire board has authorized to take such action, initially approves the discharge. We do not agree.
        Plaintiff's argument is based on a strained reading of Wells Fargo. That argument-which covers some five pages-is premised on a misinterpretation of cases that Wells Fargo cites in its discussion on the non-delagable nature of the board's ultimate decision to terminate an officer. However, to put it plainly, plaintiff's strained interpretation of those cases does not support her position that our Supreme Court concluded the board of directors (or a committee thereof) must make the initial decision to terminate the officer. To the contrary, our Supreme Court specifically stated "section 24 does not preempt state law causes of action for wrongful discharge by a former national bank officer unless the officer was dismissed by the bank's board of directors itself or the discharge was approved or ratified by the board." (53 Cal.3d at p. 1103, italics added.) ⁸ Moreover, the Supreme Court specifically rejected the argument that such ratification would be a mere "rubber stamp" of actions recommended by senior officers. The court noted "Board action of many kinds is often a ratification of recommendations by senior management. But the board remains responsible for performing its statutory [duty] and other functions. We will not presume it will undertake those duties lightly." (53 Cal.3d at p. 1100.)
        The critical error in plaintiff's analysis is her assumption that, because the board's power to dismiss is non-delagable, it must be the board that initiates the termination. However, explicit ratification of a senior management decision is sufficient to make the decision the board's own, thus satisfying the requirement that the board-not a manager-dismiss the officer. (1 Marsh & Finkle, Marsh's Cal. Corporation Law (3d ed. 1990) § 9.28, p. 650.) ⁹
        In sum, we conclude board of director ratification of a manager's decision to terminate an officer is sufficient to invoke section 24 preemption. (See also Marques v. Bank of America, supra, 59 Cal.App.4th at p. 359 ["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"].)

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        3. The Federal Court's Denial of Summary Judgment has no Collateral Estoppel Effect in this Case.
        As we noted above (ante, fn. 2), plaintiff filed a parallel action in federal court alleging causes of action for discrimination on the basis of sex (Title VII) and for age discrimination under the ADEA and for a state law claim for termination in violation of public policy. The federal district court denied Bank of America's motion for summary judgment in that action. The federal order stated only that "[f]or the reasons discussed at the telephonic hearing, the court finds that [] section 24 (Fifth) of the National Bank Act . . . does not preempt plaintiff's claims."
        Plaintiff claims this denial of a summary judgment motion has collateral estoppel effect in this case. She is mistaken.
        "The doctrine of collateral estoppel precludes relitigation of an issue previously adjudicated if: (1) the issue necessarily decided in the previous suit is identical to the issue sought to be relitigated; (2) there was a final judgment on the merits of the previous suit; and (3) the party against whom the plea is asserted was a party, or in privity with a party, to the previous suit. [Citation.]" (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910, italics added.)
        Although there are other serious problems with this argument, it is absolutely clear plaintiff's collateral estoppel argument must fail because the denial of a summary judgment motion is not a "final judgment on the merits" under state or federal law. (Code Civ. Proc., § 437c, subd. (l); 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 223; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1554; Federal Rule Civ. Proc. rules 54(a), 54(b); Robson v. Hallenbeck (1st Cir. 1996) 81 F.3d 1, 4; Moran v. Aetna Life Ins Co. (9th Cir. 1989) 872 F.2d 296, 300-301 [order denying summary judgment is interlocutory, but may be reviewed on appeal after entry of final judgment]; 10A Wright, Miller & Kane, Federal Practice & Procedure Civil (3d ed. 1998) Summary Judgment-Appealability of Grant or Denial, § 2715, pp. 253-255 [same]; compare Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 644, 648-652 [federal order granting summary judgment given collateral estoppel effect in state action].)
        Consequently, the federal district court's order denying summary judgment cannot have collateral estoppel effect in this case.

        B. The Action Against BAC.
        As indicated, plaintiff has also sued BAC, Bank of America's non-bank parent corporation. It appears plaintiff did so to avoid the preemptive effect of the Bank Act's dismissal-at-pleasure provision. That provision only applies to officers of a national banking association, not to officers of a bank holding corporation, such as BAC. ¹⁰ (Ambro v. American Nat. Bank and Trust Co. (Mich. 1986) 394 N.W.2d 46, 49.) However, the trial court concluded BAC could not be liable to plaintiff because, as a matter of law (1) BAC was never plaintiff's employer; and (2) BAC had no derivative liability to plaintiff. ¹¹
        BAC correctly points out that the mere fact it is Bank of America's parent corporation does not establish its liability for Bank of America's acts. (Walker v. Signal Companies, Inc. (1978) 84 Cal.App. 3d 982, 1001; Grywczynski v. Shasta Beverages, Inc. (N.D. Cal. 1984) 606 F.Supp. 61, 67 [summary judgment granted to parent corporation where plaintiff failed to produce evidence that parent company was involved in decision to terminate him].) Instead, to defeat BAC's summary judgment motion plaintiff must show there is a triable issue of fact (1) she was directly employed by BAC; or (2) BAC somehow incurred liability to her as a result of its relationship with her true employer.

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        1. There is No Evidence Plaintiff Was Ever Directly Employed by BAC.
        We first consider whether there is any evidence plaintiff was ever directly employed by BAC. We conclude there is none.
        For the purposes of employer liability, an employer is the person who has the right to control the employee with respect to the work to be done within the scope of employment. Evidence that a person withholds income taxes or social security taxes, pays unemployment taxes, and carries workers compensation insurance for another is sufficient to support a finding of an employer-employee relationship. Moreover, "[i]f a person is performing work and labor for another, a prima facie showing of an employer-employee relationship is established, and the person is presumed to be an employee in the absence of evidence to the contrary." (2 Wilcox, Cal. Employment Law (1997) § 30.04[1]; Corrigan v. Cox (1967) 254 Cal.App.2d 919, 924; Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 205.)
        Here, all the evidence indicates that, after the 1992 merger, Bank of America-not BAC-was plaintiff's employer. As indicated, plaintiff was made a vice-president of Bank of America, not BAC, and Bank of America paid her salary, withheld all applicable taxes, and provided her workers compensation insurance. This evidence creates a strong presumption that Bank of America, not BAC, was plaintiff's employer during all pertinent times, and thus BAC had no direct liability for plaintiff's discrimination claims. (See Frank v. U.S. West, Inc. (10th Cir. 1993) 3 F.3d 1357, 1362 ["The doctrine of limited liability creates a strong presumption that a parent company is not the employer of its subsidiary's employees, and the courts have found otherwise only in extraordinary circumstances."].)
        On appeal, plaintiff has pointed to no evidence showing, as a general matter, that BAC was her direct employer. ¹² However, she contends there is a triable issue of fact that during the 60 days she was in the Employee Transition Program, BAC, not Bank of America, was her true employer. In her words, "[t]here is a triable issue of fact whether . . . BAC stepped into the void and became for that interval, [plaintiff's] employer." We disagree.
        The Employee Transition Program (ETP) is a severance plan sponsored by BAC and available for use by all of its United States subsidiaries, including Bank of America. Contrary to plaintiff's representations, there is nothing about an employee's participation in the plan that transforms a participant into an employee of BAC.
        Plaintiff argues that because the ETP provides for automatic termination after 60 days, BAC somehow controlled the termination of her employment, and this was sufficient to make her an employee of BAC. We cannot agree. It was Bank of America, not BAC, that informed plaintiff there were no positions to which she could return in her former department, and which made the decision to place her in the ETP. Thus, Bank of America, not BAC, made the decision to terminate plaintiff, and plaintiff has presented no evidence BAC had the power or authority to change this decision. ¹³
        Moreover, the ETP brochure indicates the employee will continue to be employed by the particular subsidiary during the 60-day ETP period. It states: "The time between the date you received this brochure and the response date shown on the front page is your official notification period. During this time you will remain an employee unless you voluntarily resign or retire . . . ." (Italics added.) Nowhere does the brochure indicate the employer changes during the 60-day period. Finally, it is undisputed that Bank of America paid plaintiff's full salary during this 60-day period, and that BAC made no payments to plaintiff as a result of her participation in the ETP program.
        Equally unavailing is plaintiff's argument that because the ETP requires participating employees to adhere to the terms of "Working at BankAmerica," which is a summary of policies, rules and guidelines, that this somehow made plaintiff an employee of BAC. That document makes it absolutely clear that merely because BAC has distributed general policies for use by its subsidiaries, this does not mean individual employees who are subject to those policies are transformed into BAC employees. ¹⁴
        In sum, there is absolutely no evidence plaintiff was ever directly employed by BAC. Thus, there is no triable issue of fact on this point.

        2. Plaintiff's Claim She was an Employee of a Non-Bank Subsidiary.
        In another effort to avoid the effect of the Bank Act's dismissal-at-pleasure provision, plaintiff next claims she was actually an employee of a non-bank subsidiary, and thus not subject to the Bank Act. Plaintiff summarizes her argument as follows: "[Plaintiff] was not employed by a national bank. From 1986 on, [plaintiff] was an employee of a subsidiary of Security Pacific National Bank. At the time of the merger [plaintiff] was an employee and officer of [Security Pacific Investment Group], Inc., [SPIG] which was not a National Bank. SPIG, Inc. was merged into BA Capital Management, Inc. in late 1993 or early 1994 while [plaintiff] was on medical disability leave without pay. BA Capital Management, Inc. is not a National Bank." BA Capital management is a wholly owned subsidiary of Bank of America. ¹⁵
        Although respondents spend considerable energy trying to show that as a matter of law plaintiff was never an employee of SPIG, Inc. or BA Capital Management, we believe such effort is unnecessary at this point. This is because, even if plaintiff's allegation she was an employee of BA Capital Management is true, it does not affect the validity of the summary judgments in this case. Again, the only two corporate defendants in this case are BAC and Bank of America. Plaintiff has not sued BA Capital Management, nor has she explained why Bank of America or BAC would be liable if her "true" non-bank employer-BA Capital Management-or its predecessor in interest (SPIG, Inc.) discriminated against her or violated her employment contract. Again, "more is required than solely a parent-subsidiary corporate relationship to create liability of a parent for the actions of its subsidiary." (Walker v. Signal Companies, Inc., supra, 84 Cal.App.3d at p. 1001; see also Institute of Veterinary Pathology, Inc. v. California Health Laboratories, Inc. (1981) 116 Cal.App.3d 111, 119.)
        Because plaintiff has offered no legal reason why Bank of America or BAC should be liable for BA Capital Management's (or SPIG's) acts, "we see no reason to depart from the usual presumption that a subsidiary corporation is legally separate from its parent." (Grywczynski, supra, 606 F.Supp. at p. 67; see also Edwin K. Williams & Co. v. Edwin K. Williams, etc. (9th Cir. 1976) 542 F.2d 1053, 1063 [Corporate separateness is respected unless doing so would work injustice upon an innocent third party]; Kilkenny v. Arco Marine Inc. (9th Cir. 1986) 800 F.2d 853, 859 [same].) Consequently, assuming, without deciding, that there is a triable issue of fact plaintiff was an employee of BA Capital Management we nevertheless conclude that, on this record, the trial court properly granted summary judgment in favor of Bank of America and BAC.

        3. BAC's Liability As a Successor In Interest to Security Pacific Corporation.
        Plaintiff next contends BAC is liable because it merged with Security Pacific and thereby assumed all of its liabilities. Plaintiff correctly notes that in a statutory merger, the acquiring corporation assumes all liabilities, known and unknown, of its partner. (Treadaway v. Camellia Convalescent Hospitals, Inc. (1974) 43 Cal.App.3d 189, 198.) Corporations Code section 1107, subdivision (a) provides in broad terms and without exception that, upon merger, the surviving corporation " 'shall be subject to all the debts and liabilities of each [constituent corporation], in the same manner as if the surviving corporation had itself incurred them.' " (Treadaway, supra, 43 Cal.App.3d at p. 198 [construing § 1107's predecessor statute, Corp. Code § 4116]; see also Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.App.3d 289, 303-305.)
        However, plaintiff over-simplifies the merger between Security Pacific and BAC and its subsidiaries. As respondents point out, there were actually two mergers: Security Pacific Corporation (a bank holding company) merged with BAC and Security Pacific National Bank (Security Pacific Corporation's wholly owned subsidiary) merged with Bank of America. Thus, Bank of America, not BAC assumed the liabilities of plaintiff's former employer, Security Pacific National Bank. There is absolutely no evidence plaintiff was ever directly employed by Security Pacific Corporation; thus, BAC assumed no liability to plaintiff when it merged with that entity. ¹⁶

        4. BAC is Not Liable For Bank of America's Torts on an Alter Ego or Control Theory.
        Finally, plaintiff contends that even if BAC never was her direct employer, it is nevertheless liable for Bank of America's employment actions on an alter ego or control theory. We disagree.
        Again, a parent-subsidiary corporate relationship does not in itself create liability of a parent for the actions of its subsidiary. (Walker v. Signal Companies, Inc., supra, 84 Cal.App.3d at p. 1001; Institute of Veterinary Pathology, Inc. v. California Health Laboratories, Inc., supra, 116 Cal.App.3d 111, 119.) Instead, a plaintiff must show some other legal basis for establishing the parent's liability.
        Plaintiff suggests BAC may be liable for Bank of America's actions on an "alter ego" or control theory. We disagree. In California, "[a]lter ego is a limited doctrine, invoked only where recognition of the corporate form would work an injustice to a third person. (See generally, 9 Witkin, Summary of Cal. Law (9th ed. 1989) Corporations, §§ 12-23, pp. 524-537.) To prevail on a claim of 'alter ego,' the third party must show (1) there is such a unity of interest that the separate personalities of the corporations no longer exist; and (2) inequitable results will follow if the corporate separateness is respected. [Citation]." (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1285.) Plaintiff has failed to establish a triable issue of fact on either element of an alter ego theory. Most importantly, there is absolutely no evidence an "inequitable result" will follow if we respect BAC's and Bank of America's corporate separateness. (Id. at pp. 1285-1286 ["More importantly, there is nothing to suggest how an 'injustice' would befall Tomasellis if the punitive damage award were limited to a percentage of appellant's value rather than that of the parent company."]; Institute of Veterinary Pathology, Inc. v. California Health Laboratories, Inc., supra, 116 Cal.App.3d at p. 120 [plaintiff "failed to satisfy the necessary requirement of establishing an inequitable result if the conduct were to be treated as that of the subsidiaries alone"].) Clearly, this is not a case where BAC has created a shell subsidiary corporation, devoid of assets, that would be unable to answer for any judgment plaintiff may obtain. We are confident Bank of America has the financial resources to answer any judgment plaintiff may obtain, and conclude there is absolutely no reason to pierce the corporate veil to attach liability to BAC for Bank of America's acts. ¹⁷

III DISPOSITION         The judgment in favor of Bank of America is reversed to the extent it dismisses plaintiff's first (FEHA) cause of action, and the matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.
        The judgment in favor of BAC is affirmed.
        The parties shall pay their own costs on appeal.

We concur:
        Phelan, P. J.
        Corrigan, J.


Trial Court:
        San Francisco County Superior Court

Trial Judge:
        Honorable David Garcia

Counsel for Plaintiff and Appellant:
        David C. Anton, Esq.
        Margaret E. Roeckl, Esq.
        Anton & Roeckl

Counsel for Defendants and Respondents:
        Patricia K. Gillette, Esq.
        Cynthia J. Griffith, Esq.
        Heller Ehrman White & McAuliffe

        Kenneth D. Hoffman, Esq.
        Kathleen Deibert, Esq.
        Bank of America NT&SA;


*        Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.A.3 and II.B.
¹          After the court granted the motions for summary judgment, but before filing her notice of appeal, plaintiff voluntarily dismissed the action as to Wirtz.
²          Plaintiff filed a parallel action in federal court alleging causes of action for discrimination on the basis of sex (Title VII) and for age discrimination under the Age Discrimination in Employment Act and for a state law claim for termination in violation of public policy. The federal district court denied Bank of America's motion for summary judgment in that action.
³          Bank of America concedes that federal anti-discrimination legislation, and in particular Title VII and the ADEA, limit its power under section 24, Fifth to dismiss its officers "at pleasure." The case law supports this concession. (Marques, supra, 59 Cal.App.4th at p. 363; Mardula v. Rancho Dominguez Bank (1996) 43 Cal.App.4th 790, 793 [noting that section 24, Fifth and similar provisions do not bar claims that the discharge violated federal anti-discrimination statutes]; Mueller v. First Nat. Bank of the Quad Cities (C.D.Ill 1992) 797 F.Supp. 656, 660 [ADEA and ERISA claims not barred]; Scott v. Federal Reserve Bank of New York (S.D.N.Y. 1989) 704 F.Supp. 441, 447-448 [Title VII claim not barred]; Moodie v. Federal Reserve Bank of New York (S.D.N.Y.1993), 831 F.Supp. 333 [Title VII]; Moodie v. Federal Reserve Bank of New York (S.D.N.Y.1993) 835 F.Supp. 751 [same].)
⁴          Although Bank of America does not allege that the FEHA is preempted by the Bank Act's occupation of the field, we note that we agree with the Aalgaard court's analsysis of this issue. That court stated: "As applied to national banks, the United States Supreme Court 'has often pointed out that national banks are subject to state laws, unless those laws infringe the national banking laws or impose an undue burden on the performance of the banks' functions.' [Citations.]" (224 Cal.App.3d at p. 687.) The Aalgaard court then quoted our Supreme Court's opinion in Perdue v. Crocker National Bank, supra, 38 Cal.3d 913: "While nationally chartered banks are subject to the paramount authority of the United States, Congress has declined to provide an entire system of federal law to govern every aspect of national bank operations. Consequently, national banks have traditionally been 'governed in their daily course of business far more by the laws of the State than of the Nation. All their contracts are governed and construed by State laws.' As explained in National State Bank, Elizabeth, N. J. v. Long [3d Cir. 1980] 630 F.2d 981, '[w]hatever may be the history of federal-state relations in other fields, regulation of banking has been one of dual control since the passage of the first National Bank Act in 1863 . . . . In only a few instances has Congress explicitly preempted state regulation of national banks. More commonly, it has been left to the courts to delineate the proper boundaries of federal and state supervision. [¶] The judicial test has been a tolerant one. [National banks'] right to contract, collect debts, and acquire and transfer property are all based on state law.' (P. 985.) Thus the rule is that state laws apply, 'the exception being the cessation of the operation of such laws whenever they expressly conflict with the laws of the United States or frustrate the purpose for which the national banks were created, or impair their efficiency to discharge [their] duties . . . .' " (Perdue, supra, 38 Cal.3d at pp. 937-938 [fns. & citations omitted].)
⁵          In a footnote, the Aalgaard court noted that the case before it did not involve a blatant conflict where compliance with both federal and state law is a "physical impossibility." (Aalgaard, supra, 224 Cal.App.3d at p. 688, fn. 10.)
⁶          See Marques v. Bank of America, supra, 59 Cal.App.4th 356, 360 [quoting this passage from Aalgaard.].)
⁷          Because we conclude the Bank Act does not preempt plaintiff's first cause of action (the FEHA claim), we do not address plaintiff's alternative argument that her first cause of action survives because the Bank Act only preempts claims for discriminatory termination, but not claims of discriminatory harassment. In plaintiff's words, "the preemptive effect of Section 24 has no application to discrimination claims of gender and age harassment, which make up the bulk of the first cause of action." Since we conclude plaintiff may proceed with her entire first cause of action against Bank of America, we need not address this argument.
⁸          In distinguishing a federal case that held a bank may discharge an officer through an "executive committee," the Wells Fargo court also noted the federal court "was not confronted with and did not purport to uphold terminations like those in this case, which were carried out through an elaborate chain of delegations and subdelegations and which were never subjected to board approval or ratification." (53 Cal.3d at p. 1101, italics added, distinguishing Mackey v. Pioneer Nat. Bank (9th Cir. 1989) 867 F.2d 520.)
⁹          As a leading treatise on California Corporations law explains: "A corporation may be bound by the acts of its officers or other agents under the doctrine[] of ratification . . . . In general, ratification refers to the subsequent adoption and affirmance by the corporation of an act which an individual has assumed to do as agent of the corporation without previous authority . . . . [¶] Normally, a ratification will take the form of an express assent by the corporation to be bound by the agreement [or act]." (1 Marsh & Finkle, Marsh's Cal. Corporation Law, supra, § 9.28, p. 650.)
¹⁰          Bank holding companies are regulated under the separate National Bank Holding Company Act (12 U.S.C. § 1841 et seq.).
¹¹          We note our holding that plaintiff may maintain her FEHA action against Bank of America greatly diminishes the importance of plaintiff's suit against BAC. Nevertheless, plaintiff has not expressed an intent to abandon her suit against BAC and, in fact, has specifically requested we review the trial court's summary judgment on her suit against BAC, even if we reverse the summary judgment in favor of Bank of America.
¹²          Although plaintiff suggested in her deposition testimony that she believed she was an employee of BAC, she provided absolutely no hard evidence to substantiate this claim. It appears plaintiff has (wisely) abandoned this argument on appeal. (See Crosier v. United Parcel Service, Inc. (1983) 150 Cal.App.3d 1132, 1139 (disapproved on another point in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 688, 700 fn. 42) [conjecture and speculation insufficient to defeat summary judgment]; Ibarbia v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1330 ["speculative allegations without any real substantiation" insufficient to defeat summary judgment.].)
¹³          We note the ETP brochure does use the term "BAC" generally to refer to the employer. However, the brochure makes clear this is a collective term that refers to all BAC subsidiaries. The first page of the brochure refers to "Bank of America NT & SA, BankAmerica Corporation, Security Pacific Corporation, their affiliates and subsidiaries, and predecessors and successors (collectively 'BAC')." Thus, the brochure's use of the collective term "BAC" does not indicate plaintiff had been transformed into a BAC employee. In light of this definition, plaintiff's citation to portions of the brochure where the term BAC is used is disingenuous.
¹⁴          The document states: "For convenience, we use the name BankAmerica in this and other publications because this booklet is used at many of the companies with different names within the family of BankAmerica Corporation (BAC) companies. . . . However, by using BankAmerica corporation or company, it does not mean you are employed by BAC. The only employees of BAC are officers specifically appointed by the BAC Board of Directors and employees in Corporate Development #3262."
¹⁵          In June of 1994 BA Capital Management changed its name to "BofA Capital Management, Inc." However, for consistency, we refer to the entity as "BA Capital Management."
¹⁶          We also note that to the extent plaintiff is claiming she worked for a non-bank subsidiary (SPIG, Inc.) before the merger, she claims that entity merged into BA Capital Management, which is a subsidiary of Bank of America. As we have previously noted, plaintiff has not explained how this merger of subsidiaries makes Bank of America or BAC directly liable for SPIG's obligations.
¹⁷          Respondents have provided a lengthy-and we think largely needless-analysis of this issue under federal law. Under California law-which is the only law plaintiff's rely upon-it is enough that plaintiff has not established an inequitable result will follow if the corporate separateness is respected. (See 9 Witkin, Summary of Cal. Law (9th ed. 1989) Corporations § 18, p. 531 ["[W]here, in addition to ownership, there is relatively complete management and control by the parent, equity may in the interests of justice disregard the entity and treat the corporations as one."] (italics added).)