Kristi J. Cortezano v. Salin Bank & Trust Company

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1631
KRISTI J. CORTEZANO,
Plaintiff-Appellant,
v.
SALIN BANK & TRUST COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cv-00857-SEB-MJD—Sarah Evans Barker, Judge.
ARGUED SEPTEMBER 26, 2011—DECIDED MAY 21, 2012
Before CUDAHY, POSNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Kristi Cortezano filed suit against
her former employer, Salin Bank & Trust Company,
alleging national-origin discrimination based on her
marriage to Javier Cortezano, a Mexican citizen whose
presence in the United States was unauthorized. (We
use the couple’s first names to avoid confusion.) The
district court granted Salin Bank’s motion for summary
judgment, finding that Kristi failed to establish that

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2 No. 11-1631
her firing was based on an impermissible reason. Kristi
now appeals. We find that any discrimination that led
to Kristi’s firing was not based on Javier’s race or
national origin, but rather on his status as an alien
who lacked permission to be in the country. Because
alienage is not a protected classification under Title VII,
Kristi has no claim for relief, and so we affirm.
I
In 1997 Javier unlawfully entered the United States,
where he took up residence without a valid visa or
work permit. Some time later, he met Kristi and the two
married in February 2001. In March 2007, Salin Bank
hired Kristi as a Manager in Training. Kristi showed
promise. Less than one month later, she was promoted
to Bank Sales Manager, and a few months after that
she was transferred to a more profitable location.
Meanwhile, Javier attempted to start a car detailing and
repair business. Given his undocumented status, he
lacked a social security number to open a business
banking account for his new enterprise. To open the
accounts he needed, Javier obtained an individual tax
identification number (ITIN). See 26 U.S.C. § 6109; Treas.
Reg. § 301.6109-1(b)(2) (foreign persons). Although the
exact circumstances under which Javier obtained his
ITIN are murky, this appeal comes to us from a motion
for summary judgment, and so we assume that Javier
properly received his identification number. Chicago Reg’l
Council of Carpenters v. Village of Schaumburg, 644 F.3d 353,
356 (7th Cir. 2011). Kristi named Javier a joint owner on

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No. 11-1631 3
her account at Salin Bank, and with some help from
Kristi, Javier used his ITIN to open two accounts of his
own: a personal account, as well as a business account
for his company, Cortezano Motors, Ltd. Javier’s business
venture floundered, unfortunately, and so in December
2007, he returned to Mexico to sort out his citizenship
status.
Around that time, Kristi revealed Javier’s unauthorized
status to her supervisor at Salin Bank, Stacy Novotny, in
connection with her request for a two-week vacation
during which she planned to attend proceedings in
Mexico to help Javier obtain U.S. citizenship. Novotny
granted the request, and Kristi traveled to Mexico
from January 24 to February 8, 2008.
After learning about Javier’s situation, Novotny did
not let matters lie. Instead, she called Salin Bank’s
security officer, Mike Hubbs, and told him that Kristi
had joint accounts at the bank with a known undocu-
mented alien. Hubbs verified that Javier was indeed
on these accounts. Concerned that this arrangement
might implicate laws against bank fraud, Hubbs
scheduled a meeting with Novotny and Kristi for
February 11, 2008.
During this meeting, Kristi admitted that Javier had
illegally entered the United States. She urged, however,
that he was then in Mexico trying to obtain a visa or
U.S. citizenship so that he could rejoin her. Hubbs did
not see this as an excuse; instead, he emphasized his
concern that Javier, as an “illegal alien from Mexico,” must
have used fraudulent documents to open his accounts.

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4 No. 11-1631
As the meeting progressed, Hubbs’s temper flared.
When Novotny briefly stepped out of the room, Hubbs
got in Kristi’s face, screamed at her, called Javier a “piece
of shit,” and demanded that Kristi admit that Javier
illegally opened his Salin Bank accounts. Unconvinced
by Kristi’s repeated statements that Javier’s ITIN, other
documentation, and accounts were legitimate, Hubbs
informed Kristi that he would be filing an internal Suspi-
cious Activity Report.
In the course of collecting information for his report,
Hubbs emailed several Salin Bank supervisors to
inform them that Javier had “gained entry into the US
illegally,” “illegally obtained an Indiana [Driver’s License]”
by providing “false identification” and used this docu-
mentation to open his accounts at Salin Bank. Hubbs’s
completed report harped on the fact that Javier was an
“illegal alien.” At this point, Salin Bank seems to have
considered firing Kristi. A draft “Termination Notice,”
which identified Kristi’s complicit behavior in Javier’s
alleged fraud as the reason for her firing, was circulated
among the human resources department and Novotny
on February 13. This notice, however, was never signed
or sent to Kristi.
On February 19 Kristi and her attorney attempted to
attend a scheduled meeting with Salin Bank representa-
tives regarding the ongoing investigation. The Bank,
however, refused to admit Kristi’s attorney to the
meeting, stating that the meeting was a “private matter”
related to internal “Salin Bank business.” Kristi replied
that she would not attend the meeting without her at-

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No. 11-1631 5
torney. At an impasse, Kristi and her attorney began
to leave. One of the Salin Bank representatives called
after them, telling Kristi that by walking away from the
meeting she was “abandoning [her] job.” Kristi left never-
theless. That afternoon, Salin Bank drafted, signed, and
sent a letter to Kristi, terminating her employment for
refusing to participate in the meeting.
After Kristi was fired, Hubbs reported Kristi’s activity
to U.S. Immigration and Customs Enforcement. He also
attended, on behalf of Salin Bank, a June 4, 2008, meeting
of the Fraud Financial Network, which is a loose consor-
tium of banks in northeast Indiana with the mission
of rooting out fraud. According to the minutes of that
meeting, Hubbs warned the other banks that Kristi
was fired for opening fraudulent accounts for Javier,
an “illegal immigrant who is now back in Mexico.”
On September 11, 2008, Kristi filed suit in Indiana state
court, claiming that Salin Bank had blacklisted her, de-
famed her, and intentionally caused her emotional dis-
tress. In 2009, she amended her complaint to add a
claim for employment discrimination under Title VII, 42
U.S.C. § 2000e, et seq. In light of the new federal claim,
Salin Bank removed the case to the U.S. District Court
for the Southern District of Indiana. On February 15,
2011, the district court granted Salin Bank’s motion for
summary judgment on all claims.
II
We review the district court’s grant of summary judg-
ment de novo. Chicago Reg’l Council of Carpenters, 644 F.3d

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6 No. 11-1631
at 356. In order to succeed on her claim for employment
discrimination under Title VII, Kristi’s first task is to
show that she belongs to a statutorily protected class.
Here, Kristi alleges that she was discriminated against
because of her marriage to a Mexican citizen whose
residence in the United States was unauthorized. We
have not yet decided whether discrimination based on
the race or national origin of a person’s spouse or
partner falls within the protections of Title VII. Ineichen
v. Ameritech Corp., 410 F.3d 956, 961-62 (7th Cir. 2005).
Although we note that several of our sister circuits
have ruled that Title VII’s protections apply in such
cases, e.g., Holcomb v. Iona College, 521 F.3d 130 (2d Cir.
2008); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, &
GMC Trucks, Inc., 183 F.3d 988, 994 (6th Cir. 1999); Parr
v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 891-92
(11th Cir. 1986), the answer to this question is im-
material to Kristi’s case, and so we leave it for another day.
Even assuming that Title VII applies to discrimination
against one’s spouse, Kristi’s claim falls short because
it is based on Javier’s alienage, which is not protected by
the statute. Even reading the record in the light most
favorable to Kristi, it is beyond dispute that Salin
Bank’s actions were motivated by the fact that Javier’s
presence in the United States was unauthorized. Novotny
first called Hubbs because she learned that Kristi’s hus-
band was an undocumented alien. Hubbs’s report re-
peatedly noted that Javier was “smuggled into the
US illegally,” had “resid[ed] in the US illegally,” was
an “illegal alien” and an “illegal immigrant.” The report
barely notes Javier’s Mexican heritage, making only

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No. 11-1631 7
passing references to Javier and Kristi’s trips to Mexico.
Even Hubbs’s tirade in his first meeting with Kristi,
disagreeable as it was, emphasized Javier’s unauthorized
status, not his Mexican ancestry. And the coup de grâce
is the fact that after Kristi was fired, Hubbs reported
his findings to federal immigration authorities.
There are several reasons why Salin Bank might have
been concerned about Kristi’s assistance to Javier in
opening his accounts. Even assuming that Javier’s ITIN
was legitimate, Salin Bank might have wanted to avoid
holding accounts for people who illegally reside in
the United States. It would hardly advance the bank’s
business to be known as a resource for such aliens.
Indeed, these concerns are reflected in the unsent draft
Termination Notice of February 13. Hubbs initially high-
lighted his concern about possible bank fraud or other
violations of banking regulations, but his decision to
call U.S. Immigration and Customs Enforcement, rather
than local or federal banking authorities, could be seen
as an effort immediately to dissociate the bank from
any irregularity. The record leaves no doubt that Salin
Bank’s decision to fire Kristi was not taken because
Javier was Mexican, but because Javier was an undocu-
mented alien.
The question, then, is whether Title VII guards
against alienage-based discrimination. It does not. Dis-
crimination based on one’s status as an immigrant
might have been included within the ambit of “national
origin” discrimination, see 42 U.S.C. § 2000e-2(a)(1), but
that is not the path the Supreme Court has taken. The

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8 No. 11-1631
Court instead chose almost 40 years ago to adopt a nar-
rower definition of national origin discrimination for
purposes of Title VII. See Espinoza v. Farah Mfg. Co., 414
U.S. 86 (1973). Reviewing the statute’s legislative
history, the Court concluded that the term “national
origin” was limited to “the country from which you or
your forebears came.” Espinoza, 414 U.S. at 89 (quoting
110 Cong. Rec. 2549 (1964) (statement of Rep. Roose-
velt)). Thus, national origin discrimination as defined in
Title VII encompasses discrimination based on one’s
ancestry, but not discrimination based on citizenship or
immigration status. Id. The Court thought that it would
have been inconsistent for Congress to have proscribed
discrimination against aliens given the “longstanding
practice of requiring federal employees to be United
States citizens.” Id. at 90. In light of these conclusions,
the Court explicitly held that “nothing” in Title VII
“makes it illegal to discriminate on the basis of citizen-
ship or alienage.” Espinoza, 414 U.S. at 95.
We acknowledge that Congress took steps to limit
Espinoza’s holding when it enacted 8 U.S.C. § 1324b in
1996. That statute addressed the subject of unfair
immigration-related employment practices; it reads as
follows in the relevant part:
(a) Prohibition of discrimination based on national
origin or citizenship status
(1) General rule
It is an unfair immigration-related employment
practice for a person or other entity to discrim-
inate against any individual (other than an unautho-

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No. 11-1631 9
rized alien, as defined in section 1324a(h)(3) of this
title) with respect to the hiring, or recruitment
or referral for a fee, of the individual for employ-
ment or the discharging of the individual from
employment—
(A) because of such individual’s national
origin, or
(B) in the case of a protected individual (as
defined in paragraph (3)), because of such
individual’s citizenship status.
8 U.S.C. § 1324b(a)(1) (emphasis added); see also
Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968,
1984 (2011). But, even apart from the fact that Kristi did
not seek to rely on this statute and the fact that it is not
clear that it covers spouses, she cannot overcome the
statute’s explicit exclusion of unauthorized aliens from
its coverage. Kristi has never contested the fact that
Javier was not lawfully present in the country, and as
far as we can tell, that is the end of it. Any discrimina-
tion suffered by Kristi was not the result of her marriage
to a Mexican, but rather the result of her marriage to
an unauthorized alien. Under the circumstances, the
district court correctly granted summary judgment in
Salin Bank’s favor on Kristi’s claims under federal law.
III
We turn now to Kristi’s supplemental state law claims,
all of which are based on Indiana law. Generally, when a
court has dismissed all the federal claims in a lawsuit

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10 No. 11-1631
before trial, it should relinquish jurisdiction over sup-
plemental state law claims rather than resolve them on
the merits. Miller v. Herman, 600 F.3d 726, 738 (7th Cir.
2010). When the resolution of these claims is clear, none-
theless, the court may choose to decide them. See 28
U.S.C. § 1367(c) (listing permissible reasons for declining
to exercise supplemental jurisdiction). Williams v. Rodri-
guez, 509 F.3d 392, 404 (7th Cir. 2007). The district court
here committed no error by choosing to dispose of
these claims as well.
A
Kristi’s first state law claim is for intentional infliction
of emotional distress. To survive summary judgment,
she must show that Salin Bank engaged in (1) extreme
and outrageous conduct that (2) intentionally or
recklessly (3) caused (4) severe emotional distress. York
v. Frederick, 947 N.E.2d 969, 976 (Ind. Ct. App. 2011).
The conduct alleged must be “so outrageous” and “so
extreme” so as to go “beyond all possible bounds of
decency.” Id. at 976-77. As we have observed before,
Indiana “courts have been reluctant to award damages
for intentional infliction of emotional distress in employ-
ment cases.” McCreary v. Libbey-Owens-Ford Co., 132
F.3d 1159, 1167 (7th Cir. 1998).
McCreary is instructive. In that case, the defendant
“called McCreary into his office and confronted him,
pointing his finger into McCreary’s face and with a
raised voice saying, ‘[t]his is a bunch of bullshit.’ ” Id. at

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No. 11-1631 11
1161. Despite this rude behavior, we affirmed the district
court’s grant of summary judgment for the defendant,
ruling that this conduct was a “far cry” from the sort
of “extreme and outrageous conduct” that was required
for recovery for intentional infliction of emotional dis-
tress. Id. at 1167.
The similarity between the conduct in McCreary and
that in this case is apparent. Hubbs, according to Kristi,
shouted directly in her face that Javier was “garbage” and
a “piece of shit.” Although Hubbs’s actions strike us
as unprofessional, inappropriate, and no doubt upsetting,
this “isolated and brief incident which took place out of
the presence of others” did not meet the standard Indiana
requires to establish extreme and outrageous conduct.
McCreary, 132 F.3d at 1167. Thus, we affirm the district
court’s grant of summary judgment on this claim.
B
Kristi also asserts that Salin Bank defamed her and
blacklisted her. For her claim of defamation to survive
summary judgment, Kristi is required to demonstrate,
among other things, that Salin Bank made statements
that injured or diminished her reputation. Wells v. Bernitt,
936 N.E.2d 1242, 1246 (Ind. App. 2010). Her blacklisting
theory requires proof that Salin Bank attempted “to
prevent [her] . . . from obtaining employment with any
other person, or company.” IND. CODE § 22-5-3-2.
After discovery, Kristi has managed to find only one
piece of evidence in support of these claims: an email

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12 No. 11-1631
containing an excerpt of the minutes from the June 4,
2008, Fraud Financial Network meeting. She argues
that this email, which warned the other banks in the
Network not to hire her because “she had been opening
up fraudulent accounts for her husband (an illegal immi-
grant who is now back in Mexico),” injured her profes-
sional reputation and prevented her from finding em-
ployment at other banks in the Network.
Salin Bank argues that this email is inadmissible
hearsay and therefore carries no weight at summary
judgment. Kristi responds that it not hearsay because
she is not offering it for the truth of the matter asserted.
FED. R. EVID. 801. Specifically, she contends that it is not
offered to prove that she actually committed fraud, but
rather only that Hubbs accused her of doing so. Kristi’s
interpretation misreads the email: The email states that
“Salin warned . . . [that] she had been opening up fraudu-
lent accounts . . . .” Thus, the email indicates that
Salin Bank made certain statements, and its only
possible use is to show that the Bank did in fact make
those statements. The email is inadmissible hearsay, and
the district court properly disregarded it on summary
judgment. FED. R. CIV. P. 56(c)(2). Kristi presents no
other proof in support of her claims for defamation and
blacklisting, and so we affirm their dismissal.
IV
Finally, Kristi seeks to have the names of her minor
children stricken from Salin Bank’s memorandum in
support of its motion for summary judgment, in accor-

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No. 11-1631 13
dance with FED. R. CIV. P. 5.2(a). Although Kristi filed a
motion to strike with the district court, it did not rule
on that motion prior to this appeal. At oral argument,
counsel for Salin Bank conceded that the names should
not have been included, and the bank offered no objec-
tion to Kristi’s motion. Therefore, we REMAND WITH
INSTRUCTIONS to strike the names of the minor children
from Salin Bank’s memorandum, but we AFFIRM the
judgment of the district court in all other respects.
5-21-12

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