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
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
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 undocumented 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.
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 Suspicious 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 documentation 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 representatives 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-
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 nevertheless. 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 consortium 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, defamed her, and intentionally caused her emotional distress. 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 judgment de novo. Chicago Reg’l Council of Carpenters, 644 F.3d
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 immaterial 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 husband was an undocumented alien. Hubbs’s report repeatedly 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
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 highlighted 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 undocumented alien.

The question, then, is whether Title VII guards

against alienage-based discrimination. It does not. Discrimination 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
8 No. 11-1631

Court instead chose almost 40 years ago to adopt a narrower 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. Roosevelt)). 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 citizenship 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 discriminate against any individual (other than an unautho-
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 employment 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 discrimination 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
10 No. 11-1631

before trial, it should relinquish jurisdiction over supplemental 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, nonetheless, 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. Rodriguez, 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 employment 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
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 distress. 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
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 immigrant who is now back in Mexico),” injured her professional reputation and prevented her from finding employment 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 fraudulent 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-
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 objection 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