COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA GERALD E. FUERST, CLERK OF COURTS ROBERT E. WHITE : COURT OF APPEALS NO. 67078 : Plaintiff-Appellant : LOWER COURT NO. 253332 : COMMON PLEAS COURT -vs- : : MOTION NO. 62691 FEDERAL RESERVE BANK : : Defendant-Appellee : DATE: MAY 18, 1995 JOURNAL ENTRY The prior Journal Entry and Opinion of this court released on April 27, 1995, contained an error on page 6, last sentence of the first paragraph, which reads: "While age discrimination is much more than public policy in Ohio, it is clearly in and of itself an exception to any "at will" employment agreement." This sentence should have read as follows: "While handicapped discrimination is much more than public policy in Ohio, it is clearly in and of itself an exception to any "at will" employment agreement." IT IS HEREBY ORDERED that said Journal Entry and Opinion of April 27, 1995, be amended nunc pro tunc to correct the error set forth above. The Amended Journal Entry and Opinion, nunc pro tunc May 18, 1995, is attached. - 2 - IT IS FURTHER ORDERED that, as so amended, said Journal Entry and Opinion of April 27, 1995 shall stand in full force and effect as to all its particulars. DAVID T. MATIA, J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67078 : ROBERT E. WHITE : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : FEDERAL RESERVE BANK : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 27, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 253332 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: DAVID ROLOFF, ESQ. RONALD J. JAMES, ESQ. WALLY MUELLER, ESQ. VALERI FURST, ESQ. Gaines & Stern Co., L.P.A. BRIAN A. PATON, ESQ. 1400 Renaissance Center Squire, Sanders & Dempsey 1350 Euclid Avenue 4900 Society Center Cleveland, Ohio 44115-1817 127 Public Square Cleveland, Ohio 44114-1304 -2- PATRICIA ANN BLACKMON, J: Robert E. White, plaintiff-appellant, appeals from the trial court's granting of summary judgment to the Federal Reserve Bank, defendant-appellee. White assigns the following error for our review: THE TRIAL COURT ERRED IN GRANTING THE BANK'S MOTION FOR SUMMARY JUDGMENT ON WHITE'S STATE LAW HANDICAP DISCRIMINATION CLAIM. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court. The apposite facts follow. Robert E. White was employed by the Federal Reserve Bank in 1972. On January 9, 1992, White was appointed Assistant Vice President and Assistant General Auditor of the Federal Reserve Bank of Cleveland. During the course of that year, White's poor health prevented him from reporting to work. On June 11, 1992, White was terminated for failure to provide documentation of his medical condition since April 20, 1992. White filed a complaint in the court of Common Pleas of Cuyahoga County alleging handicap discrimination against his employer, the Federal Reserve Bank, in violation of R.C. 4112.99. The Federal Reserve Bank moved to dismiss the action and argued Ohio law employment claims were preempted by federal law. The motion to dismiss was converted to a motion for summary judgment. The motion was granted and this appeal followed. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, -3- which is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides before summary judgment may be granted it must be determined that: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclu- sion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ.R. 56(E) "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. The sole assignment of error in this case raises a pure question of law: whether the Federal Reserve Act, Section 341, Title 12, U.S. Code, preempts a state employment discrimination claim against the Federal Reserve Bank. Section 341(5) provides a Federal Reserve Bank shall have the power "***To appoint by its board of directors a president, vice presidents, and such officers and employees as are not otherwise provided for in this chapter, to -4- define their duties, require bonds for them and fix the penalty thereof, and to dismiss at pleasure such officers or employees.***" The Federal Reserve Bank of Cleveland relies upon the holding in Ana Leon T. v. Federal Reserve Bank of Chicago (C.A. 6, 1987), 823 F.2d 928, cert denied, 484 U.S. 945. See, also, Kispert v. Federal Home Loan Bank of Cincinnati (S.D.Ohio 1991), 778 F.Supp. 950. In a per curiam opinion, the Sixth Circuit held the plaintiff's rights under Michigan's employment discrimination law were preempted by Section 341(5), Title 12, U.S. Code, but failed to engage in any analysis or state the basis of its decision. Therefore, we decline to rely upon the holding in Ana Leon T, supra. Under the Supremacy Clause (Clause 2, Article VI) of the United States Constitution, the United States Congress has the power to preempt state law. In re Miamisburg Train Derailment Litigation (1994), 68 Ohio St.3d 255, 259. "State law may be preempted by federal law when a federal statute includes language that explicitly provides for preemption of state law, when the wording or legislative history of the federal statute shows Congress's intent to exclusively regulate the area, or where the state law conflicts with the federal regulatory scheme." Cleveland v. Berger (1993), 91 Ohio App.3d 102, 109, citing Mowery v. Mercury Marine, Div. of Brunswick Corp. (N.D.Ohio 1991), 773 F.Supp. 1012. Preemption analysis begins with a rebuttable presumption against preemption. Jenkins v. James B. Day & Co. (1994), 69 Ohio St.3d 541, 544. -5- Section 341, Title 12, U.S. Code, does not contain any language explicitly preempting state law. Therefore, this court must examine the language of the statute and the legislative history to determine whether Congress intended preemption or whether there is a conflict between state and federal law. "The key question in any preemption analysis is whether Congress intended for state law to be superseded by federal law." In re Miamisburg at 260. There is no authority in legislative history tending to show congressional intent to preempt state law discrimination claims. See Mueller at 663, supra. In a decision issued subsequent to Ana Leon T., the Equal Employment Opportunity Commission issued the EEOC Enforcement Guidance on Coverage of Federal Reserve Banks, EEOC Decision (Oct. 20, 1993), N-915-002. The EEOC concluded the Federal Reserve Banks should be treated as private employers for purposes of federal discrimination claims. Katsiavelos v. Federal Reserve Bank of Chicago (N.D.Ill. Dec. 28, 1994), No. 93 C 7724, WL 721192 (held Federal Reserve Bank of Chicago subject to the Illinois Human Rights Act). Thereafter, the District Court in Katsiavelos concluded the Federal Reserve Banks should also be treated as private employers for purposes of state discrimination claims. Id. In the absence of any legislative history to the contrary, the view that the Federal Reserve Bank should be treated as a private employer for purposes of all discrimination claims is compelling. -6- The language of Section 341, Title 12, U.S. Code in dispute is the "at pleasure" language. The Federal Reserve Act gives the Federal Reserve Banks the power to dismiss "at pleasure" bank officers. This language is nothing more than another means of expressing an "at will" employment agreement. Katsiavelos v. Federal Reserve Bank of Chicago (N.D.Ill. Mar. 3, 1995), No. 93 C 7724, WL 103308. See, also, Mueller v. First National Bank of Quad Cities (C.D. Ill. 1992), 797 F.Supp. 656, 663 (National Bank Act, Section 24, Title 12, U.S. Code construed); Cooney v. Independence (Nov. 23, 1994), Cuyahoga App. No. 66509, unreported. Ohio courts also recognize a clear violation of public policy creates an exception to the "at will" employment agreement. Painter v. Graley (1994), 70 Ohio St.3d 377. Discharge of an employee in violation of a statute is the clearest form of public policy for purposes of creating an exception to the "at will" employment agreement. See Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228. While handicapped discrimination is much more than public policy in Ohio, it is clearly in and of itself an exception to any "at will" employment agreement. An exception to the concept of "at will" employment for discrimination allegations is also consistent with federal law. There is no dispute that notwithstanding Section 341, Title 12, U.S. Code, the Federal Reserve Bank is still subject to Title VII of the Civil Rights Act of 1964. See Moodie v. Federal Reserve Bank of New York (S.D.N.Y 1993), 831 F.Supp. 333; Moodie v. Federal Reserve Bank of New York (S.D.N.Y. 1993), 835 F.Supp. 751; Ana Leon -7- T., supra. Title VII does not exempt the Federal Reserve Banks in the area of employment discrimination. Moodie, 831 F.Supp. at 337. Therefore, because there is no conflict between R.C. 4112.99 and Title VII of the Civil Rights Act, we find no conflict between state and federal law where the Federal Reserve Bank and the Federal Reserve Act are concerned. The language of Section 341, Title 12, U.S. Code does not support the Federal Reserve 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." Moodie, 831 F.Supp. 333 at 337. Accordingly, we find, as a matter of law, the Federal Reserve Act does not preempt Ohio employment discrimination claims, and the motion for summary judgment should have been denied. Judgment reversed and remanded. -8- This cause is reversed and remanded. It is, therefore, considered that said Appellant recover of said Appellee his costs herein. It is ordered that a special mandate be sent to said Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .