Courts Says Manager Lacks Title VII Claim Based on Marriage to Illegal Immigrant

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By Jay-Anne B. Casuga  

A bank sales manager who alleged she was fired because of her marriage to an undocumented immigrant from Mexico lacks a Title VII of the 1964 Civil Rights Act national origin discrimination claim, the U.S. Court of Appeals for the Seventh Circuit ruled May 21 (Cortezano v. Salin Bank & Trust Co., 7th Cir., No. 11-1631, 5/21/12).

Affirming a ruling in favor of Salin Bank & Trust Co. in Indiana, the Seventh Circuit first assumed without deciding that Title VII prohibits employer bias based on the race or national origin of an employee's spouse.

Even if it does, the appeals court said, Kristi Cortezano's claim still fails because Title VII does not protect against immigration or citizenship status discrimination. It found that it is “beyond dispute” that Cortezano's discharge was motivated by the illegal status of her husband--who had opened personal and business accounts at the bank--and not his Mexican ancestry.

Bank Manager Married Undocumented Immigrant.

According to the court, Cortezano married her husband, Javier, in February 2001. Javier was a citizen of Mexico who entered the United States without a valid visa.

Cortezano joined Salin Bank in March 2007 as a manager in training, and received a promotion to bank sales manager less than one month later.

Cortezano named her husband as a joint owner of her Salin Bank account, and also assisted him in opening his own personal and business accounts using an individual tax identification number he had obtained. At the time, Javier was trying to operate his own automotive detailing and repair company.

Javier's business was not successful, and he returned to Mexico in December 2007 to attempt to obtain U.S. citizenship.

Meanwhile, Cortezano informed her supervisor, Stacy Novotny, of Javier's illegal immigration status, and requested leave so she could travel to Mexico and help her husband with citizenship proceedings. Novotny granted the leave, which ran from Jan. 24, 2008, to Feb. 8, 2008.

However, Novotny also informed bank security officer Mike Hubbs about accounts held solely by Javier, an undocumented immigrant, as well as jointly by Javier and Cortezano.

On Feb. 11, Hubbs met with Cortezano and Novotny. During the meeting, Hubbs allegedly accused Javier of opening accounts with fraudulent documents, such as an Indiana driver's license, which Cortezano repeatedly denied. Hubbs purportedly screamed in Cortezano's face, called Javier “garbage,” and used profanity.

Hubbs then began to draft a “suspicious activity report,” in which he “harped on the fact that Javier was an 'illegal alien,' ” the court recounted.

Eight days later, Cortezano and her attorney tried to meet with bank officials regarding Hubbs's investigation, but bank representatives allegedly refused to allow her attorney to be present at an internal company meeting. The bank subsequently fired Cortezano for refusing to attend the meeting.

Later, Hubbs reported Cortezano's activities to the Department of Homeland Security's Immigration and Customs Enforcement. In June 2008, Hubbs also attended a meeting of a northeastern Indiana bank consortium called the Fraud Financial Network. According to the meeting's minutes, Hubbs allegedly told other bank officials about Cortezano's firing for opening “fraudulent accounts” for her illegal immigrant husband.

Cortezano in September 2008 sued Salin Bank, alleging intentional infliction of emotional distress, defamation, and blacklisting claims. She amended her complaint in 2009 and added a Title VII national origin discrimination claim. The U.S. District Court for the Southern District of Indiana in February 2011 ruled for the bank on all of Cortezano's claims.

Immigration Status Not Covered by Title VII.

On appeal, the Seventh Circuit said it has yet to decide whether Title VII protects an employee against discrimination based on a protected characteristic of his or her spouse.

It observed that the Second, Sixth, and Eleventh circuits have recognized such claims.

However, the court said it must leave the question “for another day” because an answer to it is “immaterial” to this case.

The court found that even if it assumed that Title VII provides bias protections based on the race or national origin of an employee's spouse, Cortezano's claim fails because she alleged discrimination based on her husband's immigration status, and not his Mexican ancestry.

The U.S. Supreme Court in Espinoza v. Farah Manufacturing Co. ( 414 U.S. 86, 6 FEP Cases 933 (1973)) limited the definition of national origin discrimination to bias based on “the country from which you or your forebears came,” according to the Seventh Circuit.

“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,” the court found.

Alleged Bias Based on Spouse's Illegal Status.

Here, Salin Bank officials began investigating Cortezano only after she revealed her husband's undocumented status, the appellate court said. It added that Hubbs focused repeatedly in his suspicious activity report on Javier's illegal status, and later alerted ICE about Cortezano.

The court acknowledged several reasons that potentially could explain the bank's concern about Cortezano's assistance in opening Javier's bank accounts, including a desire to avoid the appearance of being a banking “resource” for illegal immigrants and to “dissociate the bank from any irregularity” related to bank fraud.

“The record leaves no doubt that Salin Bank's decision to fire [Cortezano] was not taken because Javier was Mexican, but because Javier was an undocumented alien,” the court said.

In addition, the Sixth Circuit held that the bank is entitled to a favorable ruling on Cortezano's intentional infliction of emotional distress claim based on Hubbs's actions, which included shouting directly in Cortezano's face and referring to her husband as “garbage.”

Although the court called Hubbs's actions “unprofessional, inappropriate, and no doubt upsetting,” it said the “isolated and brief incident” did not constitute outrageous and extreme conduct that went “beyond all possible bounds of decency,” as required under Indiana law.

The appellate court also found dismissal appropriate on Cortezano's defamation and blacklisting claims because she attempted to support those claims with only inadmissible hearsay--an email that included an excerpt of the minutes of the June 2008 Fraud Financial Network meeting.

By Jay-Anne B. Casuga  

Text of the opinion is available at