author: KAREN NELSON MOORE, Circuit Judge. SUTTON, Circuit Judge,

text:
    Gloria MARSHALL, Plaintiff-Appellant, v. THE RAWLINGS COMPANY LLC, Defendant-Appellee.
    No. 16-5614
    United States Court of Appeals, Sixth Circuit.
    Argued: November 30, 2016
    Decided and Filed: April 20, 2017
    Rehearing En Banc Denied May 30, 2017

      ARGUED: J. Chris Sanders, Louisville, Kentucky, for Appellant. Michael D. Ris-ley, STITES & HARBISON, PLLC, Louisville, Kentucky, for Appellee. ON BRIEF: J. Chris Sanders, Louisville, Kentucky, Jill M. Guarascio, Louisville, Kentucky, for Appellant. Michael D. Risley, Shannon Antle Hamilton, Rebecca A. Weis, STITES & HARBISON, PLLC, Louisville, Kentucky, for Appellee.
    Before: MOORE, SUTTON, and WHITE, Circuit Judges.
   MOORE, J., delivered the opinion of the court in which WHITE, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 386-87), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Gloria Marshall appeals the district court’s judgment granting summary judgment for Defendant-Ap-pellee The Rawlings Company. Marshall was an employee of The Rawlings Company. After taking time off under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., for mental-health problems, which are a disability covered by the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, Marshall was demoted and then fired. Marshall alleges claims of FMLA interference, FMLA retaliation, ADA retaliation, and intentional infliction of emotional distress. The district court granted The Rawlings Company’s motion for summary judgment on all four claims. For the reasons discussed below, we AFFIRM the district court’s judgment on Marshall’s claims of FMLA interference and intentional infliction of emotional distress, REVERSE the district court’s judgment on the FMLA retaliation and ADA retaliation claims, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

The Rawlings Company provides recovery or “cost containment” services to health insurance providers. R. 34-2 (Plum-ley Aff. at ¶ 6) (Page ID #165); R. 34-3 (Eisner Dep. at 13-14) (Page ID #170). Gloria Marshall began working as a Workers’ Compensation Analyst for The Rawl-ings Company in 2006 and was promoted to Team Lead in 2011. R. 37-1 (Marshall Dep. at 57-60) (Page ID #341).

Marshall suffers from depression, anxiety, and post-traumatic stress disorder. Appellant Br. at 4; R. 34-5 (Marshall Dep. at 109-10) (Page ID #220); R. 37-1 (Marshall Dep. at 40) (Page ID #337). To receive treatment for her mental-health problems, Marshall took her first FMLA leave in February and March 2012. R. 34-5 (Marshall Dep. at 132) (Page ID #224). Marshall’s FMLA leave was not planned in advance; she took leave unexpectedly to address acute mental-health problems. Id. at 109, 112-13, 134 (Page ID #220-21, 225).

When Marshall returned from leave, she had a backlog of work waiting for her. Id. at 133-36 (Page ID #225). Although Marshall did not accumulate new work while she was on leave, there was old work that she had not finished because her leave was unexpected. Id. at 13.3-34 (Page ID #225). Marshall testified that she asked for but was denied assistance clearing out this backlog. Id. at 177-78 (Page ID #229). The Rawlings Company, on the other hand, claimed that Marshall did receive assistance catching up on her work. See R. 40 (Reply in Support of Summ. J. at 12) (Page ID #507).

In addition to the conflicting evidence about how much help Marshall received catching up on her backlog, there is also conflicting evidence about whether having a backlog was common or, rather, the sign of a serious problem. Another team lead, Elizabeth Estrada, testified that “[i]t was a constant struggle for all Team Leads to stay on top of closing the NR files and I know of many Team Leads who had a constant inventory of NR files that needed closing.” R. 37-12 (Estrada Aff. at ¶ 12) (Page ID #435). This statement is imprecise about whether other team leads succeeded in their “struggle” to keep up with the “constant inventory of NR files that needed closing.” Id. Estrada pointed to an example of an analyst with “a history of tremendous backlog” who was nevertheless promoted to a team-lead position, but this statement is again imprecise. Id. at ¶ 15 (Page ID #435). Estrada did not give any context about either what constitutes a “tremendous” backlog or about the analyst’s other qualifications. Id. For its part, The Rawlings Company pointed to an example of another team lead with a backlog, explaining that it treated Marshall and the other team lead similarly. R. 34-1 (Def.’s Mot. for Summ. J. at 7) (Page ID #131); R. 34-5 (Marshall Dep. at 189-98) (Page ID #231-32). In addition, The Rawlings Company noted that correspondence between Marshall and Vice President Jeff Bradshaw showed that Marshall was consistently falling behind even though she was allegedly working ten to twelve hours per day. R. 34-1 (Def.’s Mot. for Summ. J. at 7) (Page ID #131); R. 34-14 (Marshall & Bradshaw Emails) (Page ID #253-58); R. 34-5 (Marshall Dep. at 214) (Page ID #234). This correspondence may indicate that Marshall’s performance problems were more severe than other team leads’ problems, but it does not provide informar tion about whether other team leads also struggled, or any other basis of comparison, and does not rebut Estrada’s testimony. We do know that after Marshall cleared out her backlog of NR files, Bradshaw quickly became worried that a new backlog was forming. R. 37-2 (Eisner Dep. at 80) (Page ID #398). “[A]t that point [Bradshaw] didn’t think [Marshall] was succeeding in her role.” Id.

In September 2012, The Rawlings Company demoted Marshall from team lead to analyst, the position she initially held at the company. R. 34-2 (Plumley Aff. at ¶ 9) (Page ID #165). Mike Eisner, Division Director for the Workers’ Compensation Division and Marshall’s second-level supervisor, testified that Bradshaw recommended demoting Marshall to Laura Plumley, then the President of the division, id. at ¶ 8 (Page ID #165), and that demoting Marshall was Plumley’s decision, R. 37-2 (Eisner Dep. at 80) (Page ID #398). Plumley confirmed Eisner’s testimony that she “was the final decision-maker in demoting Plaintiff [Marshall].” R. 34-2 (Plumley Aff. at ¶ 9) (Page ID #165). Plumley stated that her “decision was based solely on Plaintiffs performance as an Analyst and a Team Lead,” although she did not state what role Bradshaw’s recommendation played in her conclusion that Marshall was performing inadequately. Id. at ¶ 12 (Page ID #165). Plumley also said that she “was not familiar with” Marshall’s FMLA leave or health conditions when she decided to demote Marshall. Id. at ¶ 12 (Page ID #165). Plumley did not inform Marshall about the demotion; Plumley had Bradshaw and Eisner inform Marshall. Id. at ¶ 13 (Page ID #165).

Some evidence in the record indicates that after being demoted Marshall excelled as an analyst, but other evidence indicates that she struggled to keep up with her workload even after being given less responsibility. On the one hand, upon Marshall’s return from her second leave, she was recognized as a high-performing analyst for having one of “the five highest submitted recoveries in the first quarter” of 2013. R. 37-23 (Eisner Email to Analysts) (Page ID #458). In June 2013, Marshall was exceeding the standard for amount of money invoiced. On the other hand, she was below the standard on other metrics, including number of checks recovered each month, number of files worked on per day, and number of outgoing calls per day. R. 37-2 (Eisner Dep. at 134-36) (Page ID #410); R. 34-18 (Mid-Year Assessment) (Page ID #274-75). Marshall’s supervisor Matthew Monyhan submitted a mid-year report covering the first half of 2013 emphasizing similar difficulties. R. 34-Í8 (Mid-Year Assessment) (Page ID #274-75).

There were also interpersonal problems that started around the time of Marshall’s demotion. Marshall testified that, on a few separate occasions, Bradshaw harassed her. First, Marshall testified that during the demotion meeting, which took place in September 2012, Bradshaw “raised his voice and started belittling” her, saying “you don’t know what you’re doing, you’re completely inefficient” and “[y]ou come in here long hours and you still can’t get your job done.” R. 37-1 (Marshall Dep. at 216) (Page ID #363).

Second, Marshall testified that at a May 2013 celebration lunch for Marshall and the other four analysts with the highest first-quarter recoveries, Bradshaw bullied her. During the lunch, Bradshaw asked a question about morale and when no one responded, he asked Marshall individually. R. 37-1 (Marshall Dep. at 24) (Page ID #370). Marshall testified, “I knew that he wasn’t asking me because he wanted my opinion. He wanted to single mé out and put me in a corner in front of my coworkers in the middle of a restaurant.” Id. She further testified that when she gave a very generic answer, Bradshaw “was intentionally trying to escalate ... the conversation in order to antagonize me” and that she felt “singled out” by “some kind of bully that was just blatantly trying to make me ... upset.” Id. at 25-26 (Page ID #371).

Third, Marshall testified about a comment Bradshaw made that, she alleged, showed that Bradshaw’s hostility toward her stemmed from her taking FMLA leave for her mental-health problems. In August 2012, Marshall and Bradshaw met to discuss her workload. According to Marshall, the meeting “initiated with him saying a sarcastic comment to me, where he said, ‘So are you planning on being out any time soon again?’ ” R. 34-5 (Marshall • Dep. at 166) (Page ID #227). She testified that she “was completely astounded” and “that was just obvious that he was referring to my medical leave ... I had no vacation or sick time to take any time off, and I was working extremely hard to try to get back. I mean, that was just a rude comment.” Id.

Only Bradshaw, Marshall, and Eisner (who Marshall alleges also discriminated against her) were in the demotion meeting. Only Bradshaw and Marshall were in the meeting to discuss Marshall’s workload. However, other people were present at the celebration lunch. One person who was present, Doug Gurley, another analyst, confirmed Marshall’s account. He said that Bradshaw “got so aggressive that all the analysts sat in silence because it was so uncomfortable at the table.” R. 37-14 (Gur-ley Aff. at ¶ 7) (Page ID #447).

In March 2013, Marshall took a second FMLA leave. See R. 37-22 (FMLA Leave Chart) (Page ID #457). Marshall also took periods of FMLA leave intermittently from April through August. Id. Marshall believed that her coworkers were biased against her both because she had taken FMLA leave and because the reason for her leave was her mental health problems. She said, “I believe that after I had to take that leave, that — that they no longer had respect for me as a person. That my medical issue, because it was mental health, caused them to think less of me.”, R. 34-5 (Marshall Dep. at 177-78) (Page ID #229).

Supervisors’ concerns about Marshall’s performance and Marshall’s concerns about her co-workers’ bias against her came to a head on September 23, 2013. That day, Eisner observed that Marshall and a coworker were not at their desks for a large portion of the day. R. 37-2 (Eisner Dep. at 154-57) (Page ID #415-16). According to Eisner’s testimony, Eisner and Monyhan met with Marshall and her coworker to discuss their lack of productivity. Marshall countered that she had been productive. R. 37-2 (Eisner Dep. at 158) (Page ID #416). Again according to Eisner, Monyhan disputed Marshall’s claim that she had been productive, saying that he pulled her phone reports and they showed that she had been logged off of her phone for much of the day. Id. at 159 (Page ID #416).

When Eisner and Monyhan asked Marshall about her disengaged attitude, Marshall responded that she had been harassed on two occasions. Id. at 161 (Page ID #417). She said that Bradshaw harassed her during the demotion meeting and at the celebration lunch for analysts with high recoveries. Id. at 161-63 (Page ID #417); R. 37-1 (Marshall Dep. at 55) (Page ID #374). She explained that she had not reported the harassment previously because she was afraid of being fired. R. 37-2 (Eisner Dep. at 173) (Page ID #420). Eisner said he was required to report the allegation of harassment and he did so. Id. at 171-72 (Page ID #419).

Eisner, Plumley, and Marshall met to discuss Marshall’s allegatio'n of harassment. R. 34-2 (Plumley Aff. at ¶ 14) (Page ID #166). Plumley attested that, “Based on the information Plaintiff provided, and my experience as an in-house attorney, I did not believe Bradshaw’s alleged harassment was actionable — that is, based upon a protected class.” Id. at ¶25 (Page ID #166). She also attested that, “My overall impression from the meeting ... was that Plaintiff was someone who was not doing her job, had been called on the carpet by her supervisor, and in order to deflect it, brought up the allegations of harassment against Bradshaw.” Id. at ¶ 26 (Page ID #166).

Plumley reported to George Rawlings, the company’s owner, about the allegations of harassment and her conclusion that the allegations were unfounded. Id. at ¶27 (Page ID #168). Rawlings met with Marshall soon after the report from Plumley. R. 34-20 (Rawlings Aff. at ¶ 7) (Page ID #279). His affidavit stated that, “I made the decision to terminate Plaintiffs employment during the course of my meeting with Plaintiff when I reached the conclusion she was making false allegations of harassment in order to avoid the consequences of her own excessive absences from her desk the day before.” Id. at ¶ 14 (Page ID #280). He also stated that, “[a]t the time I terminated Plaintiffs employment I did not know that Plaintiff had ever taken any family and medical leave or that she had any medical conditions.” Id. at ¶ 19 (Page ID #281).

In May 2014, Marshall filed this lawsuit alleging FMLA interference and FMLA retaliation in violation of 29 U.S.C. § 2615; ADA retaliation in violation of 42 U.S.C. § 12112; and intentional infliction of emotional distress in violation of Kentucky law. The Rawlings Company filed a motion seeking summary judgment on all four claims. The district judge granted The Rawlings Company’s motion for summary judgment and dismissed all claims. Marshall timely appealed.

II. FMLA RETALIATION

Marshall alleged that The Rawlings Company retaliated against her for taking FMLA leave — first by demoting her, then by firing her. The district court erred by granting The Rawlings Company’s motion for summary judgment on Marshall’s FMLA retaliation claim.

“[T]he FMLA ... affords employees protection in the event they suffer retaliation or discrimination for exercising their rights under the FMLA. Specifically, [a]n employer is prohibited from discriminating against employees. ... who have used FMLA leave, nor can they use the taking of FMLA leave as a negative factor in employment actions.” Arban v. West Publ’g Corp., 345 F.3d 390, 403 (6th Cir. 2003) (second and third alterations in original). “This prohibition includes retaliatory discharge for taking leave.” Id. It also includes demotion for taking leave. DeBoer v. Musashi Auto Parts, Inc., 124 Fed.Appx. 387, 391 (6th Cir. 2005). To prove that The Rawlings Company engaged in FMLA retaliation, Marshall must show that taking leave was a causal factor in The Rawlings Company’s decisions to demote and then fire her. She can show this causal connection through either direct or indirect evidence. Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 432 (6th Cir. 2014); see Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir. 2006).

A. Cat’s Paw Liability

In her response to defendant’s motion for summary judgment, Marshall did not allege that Plumley and George Rawlings, the ultimate decisionmakers, were biased against her because she had taken FMLA leave. Instead, Marshall alleged that Bradshaw and Eisner, lower-level supervisors, were biased against her. She alleged that Bradshaw and Eisner caused her demotion and termination by Plumley and George Rawlings. Regarding the demotion, she alleged Bradshaw and Eisner influenced Plumley, who made the demotion decision. Regarding the termination, she alleged that Bradshaw and Eisner influenced Plumley who, in turn, influenced George Rawlings, who made the termination decision. Because it depends on proving that biased lower-level supervisors influenced the ultimate decisionmakers, Marshall’s claim of FMLA retaliation depends on the cat’s paw theory of liability. Marshall’s case can proceed only if the cat’s paw theory of liability applies in FMLA retaliation cases. We hold that the cat’s paw theory does apply to claims of FMLA discrimination.

“[T]he term ‘cat’s-paw’ refers to ‘one used by another to accomplish his purposes.’ In the employment discrimination context, ‘cat’s pav/ refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006) (citations omitted). A plaintiff alleging liability under the cat’s paw theory seeks “to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.” Staub v. Proctor Hosp., 562 U.S. 411, 415, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011).

Previously, we “[a]ssum[ed] without deciding that the cat’s paw theory of liability is available in FMLA retaliation cases.” Henderson v. Chrysler Group, LLC, 610 Fed.Appx. 488, 496 (6th Cir. 2015). We, along with the Supreme Court and other circuit courts, regularly apply the cat’s paw theory of liability to a variety of claims. See, e.g., Staub, 562 U.S. at 419, 131 S.Ct. 1186 (applying the cat’s paw theory to a Uniformed Services Employment and Reemployment Rights Act claim); DeNoma v. Hamilton Cty. Ct. of Common Pleas, 626 Fed.Appx. 101, 110 (6th Cir. 2015) (applying the cat’s paw theory to a § 1983.gender discrimination claim); Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 350-51 (6th Cir. 2012) (applying the cat’s paw theory to a Title VII race discrimination claim); Shager v. Upjohn Co., 913 F.2d 398, 405-06 (7th Cir. 1990) (applying the cat’s paw theory to an Age Discrimination in Employment Act claim). Other circuit courts apply the cat’s paw theory of liability to FMLA claims. See Armen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir. 2015) (applying the cat’s paw theory in a FMLA case, and finding that plaintiff did not meet his burden to prove that the proffered reason for his discharge' was pretext); Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 965 (8th Cir. 2012) (applying the cat’s paw theory in a FMLA case and affirming a liquidated damages award on the basis of cat’s paw liability); Hyde v. K.B. Home, Inc., 355 Fed.Appx. 266, 273-74 (11th Cir. 2009) (applying the cat’s paw theory in a FMLA case, and finding that plaintiff did not meet her burden to prove that the biased supervisor actually had input into the decision).

The rationale for the cat’s paw theory applies equally to FMLA retaliation claims as to other types of employment discrimination and retaliation claims. The primary rationale for the cat’s paw theory of liability is that, because “a company’s organizational chart does not always accurately reflect its decisionmaking process,” an employee of lower rank may have significant influence over the decisionmaker. BCI Coca-Cola, 450 F.3d at 486. The ultimate decisionmaker may be detached from day-to-day operations, and consequently “apt to defer to the judgment of the [person] on the spot” and at risk of being “the conduit of [the lower-level decisionmaker’s] prejudice.” Shager, 913 F.2d at 405. As a result, “[a] biased low-level supervisor with no disciplinary authority might effectuate the termination of an employee from a protected class by recommending discharge or by selectively reporting or even fabricating information in communications with the formal decisionmaker.” BCI Coca-Cola, 450 F.3d at 486. Given this risk, the cat’s paw theory accomplishes two goals. First, the cat’s paw theory addresses situations in which decisionmakers unthinkingly adopt the recommendations of their biased lower-level supervisors; second, it “forecloses a strategic option for employers who might seek to evade liability ... through willful blindness as to the source of reports and recommendations.” Id. Because there is just as much possibility of lower-level supervisors influencing decisionmakers to engage in FMLA discrimination as discrimination based on race, gender, military service, or age, it makes sense to apply the cat’s paw theory to FMLA claims.

The agency principles that support application of the cat’s paw theory to other types of claims also apply to claims of FMLA discrimination. “[Subordinate bias theories comport with the basic agency principles incorporated by statute into Title VII” because in “Title VII, the term ‘employer’ includes not only any ‘person engaged in an industry affecting commerce’ but ‘any agent of such a person.’ ” BCI Coca-Cola, 450 F.3d at 485 (quoting 42 U.S.C. § 2000e(b)); accord Staub, 562 U.S. at 420-21, 131 S.Ct. 1186 (applying principles of agency law to hold that employer can be liable under the cat’s paw theory); Shager, 913 F.2d at 404-05 (same). Similarly, in the FMLA “[t]he term ‘employer’ ... includes ... any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). These agency principles also apply to claims of FMLA retaliation. Therefore, we will apply the cat’s paw theory of liability to FMLA retaliation claims.

Having determined that we will apply the cat’s paw theory of liability to FMLA retaliation claims, we must consider three more questions about cat’s paw liability. The first is whether the cat’s paw theory of liability applies in situations involving more than one layer of supervision between the plaintiff and the ultimate de-cisionmaker. This question is relevant to Marshall’s termination. Marshall alleged that Bradshaw and Eisner sought to fire her in retaliation for taking FMLA leave, which they did by manipulating George Rawlings. George Rawlings was at the top of The Rawlings Company’s organizational chart. Plumley was below George Rawl-ings and above lower-level supervisors Bradshaw and Eisner. Bradshaw and Eisner were below Plumley and above Marshall. Marshall was toward the bottom of the organizational chart. The chain of events that led to Marshall’s termination started when Eisner reported to Plumley that Marshall made a claim that Bradshaw harassed her. After meeting with Marshall and Eisner, Plumley served as a conduit to George Rawlings, informing him that Marshall made an unfounded claim of harassment. Eisner also told Rawlings that Bradshaw’s actions were not harassment. During a brief meeting with Marshall, George Rawlings fired her. Application of the cat’s paw theory in this situation encompasses allowing a plaintiff to put forward the theory that a lower-level supervisor (here, Bradshaw and Eisner) influenced an intermediate decision-maker (Plumley) who in turn, either oblivious to or adopting the subordinate’s bias, influenced the ultimate decisionmaker (George Rawlings).

Plaintiffs such as Marshall can proceed on such a theory. All of the justifications for applying the cat’s paw theory apply with equal force when there are multiple layers of decisionmakers; consequently, there is no reason to forbid plaintiffs from pursuing a theory that a lower-level supervisor carried out a scheme to discriminate by influencing multiple layers of higher-level supervision. Of course, in some cases, allegations that a lower-level supervisor successfully carried out such a scheme might be far-fetched. But those cases can be screened out using existing legal procedures. Those cases are no reason to bar recovery for plaintiffs who can put forward convincing proof that a biased low-level supervisor influenced multiple layers of higher-level supervisors.

Second, we must address the relationship between the McDonnell Douglas burden-shifting framework and cat’s paw liability. The McDonnell Douglas burden-shifting framework applies to claims of FMLA retaliation based on indirect evidence. Under this framework, a plaintiff has the burden to make a prima facie case of discrimination; if the plaintiff can make a prima facie case, the defendant has the burden to articulate a nondiscriminatory reason for the adverse employment action; if the defendant can provide a nondiscriminatory reason, the plaintiff has the burden to show that the reason was pretext. Edgar, 443 F.3d at 508 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). A plaintiff establishes pretext “by showing that the proffered reason had no basis in fact, did not motivate the termination, or was insufficient to warrant the termination.” Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). In some past cases, we “declined to consider whether and to what extent cat’s paw liability fits into the [McDonnell Douglas] framework.” DeNoma, 626 Fed.Appx. at 105 (quotation marks and citations omitted). On the other hand, we have also integrated the McDonnell Douglas framework and cat’s paw liability by analyzing them one after the other. Id. at 105-10; Chattman, 686 F.3d at 347-53. Plaintiffs alleging FMLA retaliation based on a cat’s paw theory of liability must satisfy the requirements of the McDonnell Douglas framework and prove that the decisionmaker was the cat’s paw of a biased subordinate, so it makes sense to analyze each issue separately. As both Chatman and DeNoma show, proceeding in this manner is straightforward. We see no reason not to continue with this approach.

Third and finally, we must address how the honest-belief rule applies in cases proceeding on a cat’s paw theory of liability. Under the honest-belief rule, “as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pre-textual simply because it is ultimately shown to be incorrect.” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citing Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998)). The honest-belief rule applies “where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.” Id. (internal quotation marks omitted). “The rationale behind the [honest-belief] rule is that the focus of a discrimination suit is on the intent of the employer. If the employer honestly, albeit mistakenly, believes in the non-discriminatory reason it relied upon in making its employment decision, then the employer arguably lacks the necessary discriminatory intent.” Smith, 155 F.3d at 806.

Cat’s paw liability, however, rests on the premise that organizational employers do not operate in a vacuum, and that a decisionmaker might rely on the recommendation of a biased lower-level supervisor. See Staub, 562 U.S. at 418-21, 131 S.Ct. 1186. In such circumstances, the honesty or sincerity of the deeisionmakei'’s belief is irrelevant. What is relevant is that the belief is rooted in a biased recommendation. See Staub 562 U.S. at 418-19, 131 S.Ct. 1186 (“the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm”). In a cat’s paw case, the allegation is that a biased subordinate intentionally manipulated the decisionmaker. Under these circumstances, the decisionmaker’s intent does not matter, and consequently the honesty of the decisionmaker’s belief does not matter.

That is not to say that evidence of a biased recommendation is always sufficient to sustain a cat’s paw theory. A supervisor who conducts an in-depth and truly independent investigation is not being manipulated by biased lower-level supervisors, but rather making a decision based on an independent evaluation of the situation. If the decisionmaker conducts an investigation that “results in an adverse action for reasons unrelated to the supervisor’s original biased action ... then the employer will not be liable.” Staub, 562 U.S. at 421, 131 S.Ct. 1186 (emphasis added). As the Court explained, however, there is no “hard-and-fast rule” that a decisionmaker’s independent investigation defeats a cat’s paw claim. Id. at 420, 131 S.Ct. 1186. Rather, “the traditional tort-law concept of proximate cause” applies. Id. (citations omitted). Thus, an independent investigation defeats a cat’s paw claim only when the investigation “determines] that the adverse action was, apart from the supervisor’s recommendation, entirely justified.” Id. at 421, 131 S.Ct. 1186; see Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 797 (6th Cir. 2013) (concluding that “independent fact gathering” is necessary to defeat a cat’s paw claim).

B. The Rawlings Company Is Not Entitled to Summary Judgment on Marshall’s FMLA Retaliation Claim

Having addressed these legal questions, we now consider their application to the facts of this case. The district court granted summary judgment in favor of The Rawlings Company. We review de novo a district court’s grant of summary judgment. Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). Summary judgment- is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). At the summary judgment stage, the court determines whether there are genuine disputes of material fact that should go to a jury; it does not find facts. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is a genuine dispute of material fact if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249, 106 S.Ct. 2505. The party moving for summary judgment carries the initial burden of showing the absence of a genuine dispute of material fact; if it satisfies that burden, the nonmoving party must show “specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Fed. R. Civ. P. 56(c).

In this FMLA retaliation case, where there is no direct evidence of retaliation, we must apply the McDonnell Douglas burden-shifting framework. At the summary judgment stage, we must determine whether, within the steps of the McDonnell Douglas framework, there are genuine disputes of material fact. And, keeping in mind our conclusion about the best way to proceed in cases implicating both the McDonnell Douglas burden-shifting framework and the cat’s paw theory of liability, we will begin by analyzing the allegations of FMLA retaliation against Bradshaw and Eisner. If we determine that Marshall’s allegations against Bradshaw and Eisner would satisfy the McDonnell Douglas framework, we will analyze Marshall’s cat’s paw allegations.

Moving to application of the McDonnell Douglas framework to Marshall’s allegations against Bradshaw and Eisner, we first ask whether Marshall made a prima facie case of FMLA retaliation. Edgar, 443 F.3d at 508. A plaintiff establishes a prima facie case of FMLA retaliation by showing that .she availed herself of a protected right under the FMLA; her employer knew she availed herself of her right under the FMLA; she suffered an adverse employment action; and there was a causal connection between the exercise of her rights under the FMLA and the adverse employment action. Id.; Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir. 2012). The first three elements are undisputed. There is no dispute that Marshall took FMLA leave. There is no dispute that Bradshaw and Eisner knew that Marshall took FMLA leave. There is also no dispute that Marshall suffered two adverse actions, as she was demoted after her first FMLA leave and fired after her second FMLA leave.

The fourth element is disputed. Marshall alleged that Bradshaw expressed animosity toward her and that he made inappropriate comments about her FMLA leave, and that Bradshaw and Eisner were motivated to demote her and then fire her because she took FMLA leave. The Rawl-ings Company countered that it did not demote Marshall because she took FMLA leave, but rather because she was unable to keep up with her workload as a team lead. The record contains conflicting evidence surrounding Marshall’s performance both before and after her demotion, showing that she performed well in some areas and poorly in others. R. 37-12 (Estrada Aff. at ¶ 12) (Page ID #435); R. 34-14 (Marshall & Bradshaw Emails) (Page ID #253-58); R. 34-5 (Marshall Dep. at 189-98) (Page ID #231-32); R. 34-18 (Mid-Year Assessment) (Page ID #274-75). The record does not elucidate the relative importance of these different areas or how Marshall’s overall performance compares with her co-workers’ performance. And Bradshaw’s question about whether Marshall planned to take more leave in the same meeting he directed her to clear the backlog of NR files permits the inference that Bradshaw was displeased with Marshall’s previous exercise of her FMLA rights. R. 37-1 (Marshall Dep. at 166) (Page ID #357). In addition, the record also contains conflicting evidence as to why George Rawlings fired Marshall. R. 34-2 (Plumley Aff. at ¶ 25-26) (Page ID #166); R. 34-20 (Rawlings Aff. at ¶ 14) (Page ID #280); R. 34-5 (Marshall Dep. at 166-78) (Page ID #227-29); R. 37-1 (Marshall Dep. at 216) (Page ID #363). To determine whether Rawlings fired Marshall in retaliation for taking FMLA leave or based on a belief that she attempted to deflect criticism of her excessive breaks by making a false claim of harassment, a trier-of-fact would need to weigh the evidence and make credibility determinations to decide whether to believe Marshall or her supervisors. The material facts surrounding why The Rawl-ings Company demoted and fired Marshall are disputed and, on this record, a reasonable jury could find a causal connection between Marshall’s use of FMLA leave and the subsequent adverse actions.

Proceeding to the second step, the burden shifts to The Rawlings Company to articulate a legitimate nondiscriminatory reason for the adverse employment actions. Edgar, 443 F.3d at 508. Again, The Rawlings Company argues that it demoted Marshall because her performance was inadequate and fired Marshall because she made a false claim of harassment against Bradshaw. If true, these are legitimate reasons for The Rawlings Company’s actions.

Marshall responds, however, that her performance was adequate, even exceptional, and that her complaints against Bradshaw were justified, and thus The Rawlings Company’s articulated reasons for its actions are pretexts. And, as explained above, it is not clear that Marshall’s performance in 2012 justified a demotion, or that her allegations against Bradshaw were false. A trier-of-fact would need to weigh the evidence and make credibility determinations in order to determine why The Rawlings Company demoted and then fired Marshall. There are genuine disputes of material facts relevant to whether The Rawlings Company’s articulated nondiscriminatory reasons for demoting and then firing Marshall were based in fact, actually motivated the adverse actions, and were sufficient to warrant those actions. See Donald, 667 F.3d at 762.

Therefore, at each step of the McDonnell Douglas burden-shifting test, there are genuine disputes of' material fact. As far as Marshall’s allegation that Bradshaw and Eisner were biased against her is concerned, Marshall’s claim survives summary judgment.

We now move to consider cat’s paw liability. Because Bradshaw and Eisner were not the final decisionmakers, Marshall’s claim survives summary judgment only if there is at least a genuine dispute of. material fact as to whether Bradshaw and Eisner influenced Plumley to demote Marshall and influenced George Rawlings to fire Marshall.

There is a genuine dispute of material fact as to whether Bradshaw and Eisner influenced Plumley’s decision to demote Marshall. Bradshaw initially recommended demoting Marshall. R. 37-2 (Eisner Dep. at 80) (Page ID #398). Although Plumley testified that she “was the final decision-maker in demoting [Marshall],” R. 34-2 (Plumley Aff. at ¶ 9) (Page ID #165), she did not clarify what role Bradshaw’s recommendation played in her decision. Plumley stated that her decision was based on Marshall’s performance, but she did not clarify whether her information about Marshall’s performance came from Bradshaw or from an independent investigation, id. at ¶ 12 (Page ID #165), and The Rawlings Company “offers no evidence that [Plumley] conducted any independent fact gathering,” Sharp, 726 F.3d at 797. In fact, Plumley’s testimony that she was not familiar at the time with Marshall’s use of FMLA leave, R. 34-2 (Plum-ley Aff. at ¶ 12), strongly suggests that any investigation Plumley may have conducted was cursory at best. Further, there is circumstantial evidence that Bradshaw had a significant influence on Plumley’s decision. Plumley appears to have made the decision shortly after receiving Bradshaw’s recommendation, which may indicate that she did not independently verify Bradshaw’s claims about Marshall’s performance. Plumley also had Bradshaw and Eisner inform Marshall that she was being demoted, which may indicate that she viewed their advice as integral to her deci-sionmaking process. There is a genuine dispute of material fact as to whether Bradshaw and Eisner influenced Plumley’s decision to demote Marshall.

There is also a genuine dispute of material fact as to whether Bradshaw and'Eisner influenced George Rawlings’s decision to fire Marshall. Marshall’s allegation is that Bradshaw and Eisner influenced Plumley, who in turn influenced George Rawlings, who made the ultimate decision to fire Marshall. The record provides insufficient information about Bradshaw and Eisner’s potential influence over Plumley and Plumley’s potential influence over George Rawlings. The record does reveal that when Plumley met with Marshall, Eisner was also present. R. 34-2 (Plumley Aff. at ¶ 14) (Page ID #166). The record also suggests that George Rawlings’s only information about the asserted false claim of harassment came from a meeting with Plumley, a conversation with Eisner, and a brief, five- to ten-minute meeting with Marshall, at which he fired Marshall. R. 34-20 (Rawlings Aff. at ¶ 7) (Page ID #279); R. 34-8, (Eisner Aff. at ¶¶ 11-13) (Page ID #241); R. 37-1 (Marshall Dep. at 8) (Page ID #366). Further, Eisner testified that Rawlings was considering terminating Marshall even before Rawlings met with her. R. 34-8, (Eisner Aff. at ¶ 13) (Page ID #241). And there is no indication Plumley or Rawlings ever bothered to ask Bradshaw about his behavior towards Marshall. On this record, a reasonable jury could conclude that Plumley and Rawlings did not conduct an adequate independent investigation — and had no interest in doing so — and merely served as the conduit for their subordinates’ retaliatory intent.

Therefore, there are genuine disputes of material fact as to whether Bradshaw and Eisner were biased against Marshall and sought to have her demoted and then fired. There are also genuine disputes of material fact as to whether Bradshaw and Eisner influenced Plumley and whether Plumley influenced George Rawlings’s decision to fire Marshall. Because of these genuine disputes of material fact, the district court erred by granting summary judgment on Marshall’s claim of FMLA retaliation.

III. ADA DISCRIMINATION

Marshall also argues that The Rawlings Company discriminated against her because of her mental-health problems, in violation of the ADA. The ADA prohibits “ ‘discriminat[ion] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.’ ” Demyanovich, 747 F.3d at 433 (quoting 42 U.S.C. § 12112(a)). “As with FMLA claims, plaintiffs may prove disability discrimination using the McDonnell Douglas burden-shifting framework.” Id.

Marshall makes the same arguments to support her ADA discrimination claim as her FMLA retaliation claim. Marshall testified to her belief that Bradshaw and Eisner were biased against her because she had mental-health problems. R. 34-5 (Marshall Dep. at 177-78) (Page ID #229). She argued that, regarding her demotion, Bradshaw and Eisner influenced Plumley. She argued that, regarding her termination, Bradshaw and Eisner influenced Plumley who, in turn-, influenced George Rawlings.

As with Marshall’s FMLA retaliation claim, there are genuine disputes of material fact relevant to whether Bradshaw and Eisner were in fact biased against Marshall, and relevant to whether Bradshaw and Eisner influenced Plumley and George Rawlings’s decisions to take adverse employment action against her. "Because of these genuine disputes of material fact, the district court erred by granting summary judgment on Marshall’s claim of ADA discrimination.

IV. FMLA INTERFERENCE

Marshall also alleged FMLA interference. The district court did not err by granting summary judgment on Marshall’s claim of FMLA interference. Under the FMLA interference theory, “[i]f an employer interferes with the FMLA-creat-ed right to medical leave or to reinstatement following the leave, a violation has occurred, regardless of the intent of the employer.” Seeger, 681 F.3d at 282 (alteration in original) (internal quotation marks omitted). Interference occurs when an employer “shortchange[s] [an employee’s] leave time, den[ies] reinstatement, or otherwise interfere^] with [an employee’s] substantive FMLA rights.” Id. at 288.

It is undisputed that Marshall received all the FMLA leave she requested, including two longer absences in February 2012 and March 2018 and intermittent days off after March 2018. R. 37-1 (Marshall Dep. at 113-15) (Page ID #346). It is further undisputed that after her first longer FMLA leave, she was reinstated to her position as team lead, R. 34-5 (Marshall Dep. at 133-36) (Page ID #225), and after her second longer FMLA leave, she was reinstated to her position as analyst, R. 37-22 (FMLA Leave Chart) (Page ID #457); R. 37-23 (Eisner Email to Analysts) (Page ID #458). The Rawlings Company prorated the financial and production standards Marshall was required to meet to account for the days she was out on FMLA leave. R. 37-2 (Eisner Dep. at 141) (Page ID #412). Moreover, both adverse employment consequences Marshall faced (demotion and termination) occurred several months after she was initially reinstated to the position she held before taking leave.

Marshall has not produced any evidence to show that Rawlings failed to provide FMLA leave or "reinstatement after leave. Like the plaintiff in Seeger, she cannot show that her employer denied any of her rights under the FMLA. Seeger, 681 F.3d at 283. Therefore, Marshall’s FMLA interference claim fails, and the district court did not err by granting summary judgment to The Rawlings Company on this claim.

V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Finally, Marshall alleged intentional infliction of emotional distress under Kentucky state law. The district court did not err by granting summary judgment on Marshall’s state law claim of intentional infliction of emotional distress (also referred to outrage or outrageous conduct). “Kentucky still takes a restrictive/limited approach to the tort of outrageous conduct, which covers only outrageous and intolerable conduct.” Wathen v. Gen. Elec. Co., 115 F.3d 400, 407 (6th Cir. 1997) (internal quotation marks and citation omitted). In order to prove intentional infliction of emotional distress “the plaintiff must show that the defendant’s conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (internal quotation marks and citation omitted); see also Brewer v. Hillard, 15 S.W.3d 1, 6-7 (Ky. Ct. App. 1999).

None of the facts Marshall alleges rise to the level of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Wathen, 115 F.3d at 407. Making a snide remark about taking leave, telling an employee she is not doing her job effectively during a demotion meeting, and creating an awkward situation at lunch are not actions so extreme that they are “utterly intolerable in a civilized community.” Id.

Because no incident at Marshall’s workplace rose to the level of extreme and outrageous conduct, the district court did not err by granting summary judgment to The Rawlings Company on Marshall’s claim of intentional infliction of emotional distress.

VI. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment in part and REVERSE in part and REMAND for further proceedings consistent with this opinion.

CONCURRING IN PART AND DISSENTING IN PART

SUTTON, Circuit Judge,

concurring in part and dissenting in part.

I agree with the Court that The Rawl-ings Company did not interfere with Marshall’s FMLA leave and did not intentionally inflict emotional distress. Marshall received all of the FMLA leave she requested. And the company’s behavior did not surpass Kentucky’s high bar for bringing a claim for intentional infliction of emotional distress, which requires extreme and outrageous conduct.

I part ways with the Court on the proper resolution of the ADA discrimination and FMLA retaliation claims. Under our cases, the “honest belief’ rule provides an initial answer to these claims. See Ferrari v. Ford Motor Co., 826 F.3d 885, 895 (6th Cir. 2016). The two decisionmakers, Laura Plumley and George Rawlings, believed that Marshall should be demoted, and eventually fired, because she earned it — as an inefficient employee who falsely claimed harassment to distract from her poor work ethic. At the pretext stage of the McDonnell Douglas test, that’s all that’s needed to show that the plaintiffs claims fail as a matter of law. If this case turned solely on the application of the honest-belief rule, as I read the Court’s opinion, all three of us would agree that the employer should prevail.

The Court permits these claims to go to a jury on the ground that the “cat’s paw” theory overrides the honest-belief rule. I doubt we can sidestep the honest-belief rule so easily. But even if we could, the “cat’s paw” theory fails on its own terms here. Under the theory, a lower-level supervisor, motivated by actionable animus, commits actions or makes recommendations to convince the decisionmaker, oblivious to the discriminatory animus, to take an adverse employment action against the employee. See Staub v. Proctor Hosp., 562 U.S. 411, 418-19, 428, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). The upshot is that the decisionmaker does the dirty work for a retaliating supervisor.

But the lower-level supervisors in our case, Jeff Bradshaw and Mike Eisner, were not “motivated by discriminatory animus” and “honestly believed” the nondiscriminatory reasons for the demotion and firing. Ferrari, 826 F.3d at 896 & n.5. Start with the evidence with respect to Bradshaw, who recommended Marshall’s demotion. After Plumley agreed to demote Marshall, Bradshaw conveyed that decision to Marshall. Bradshaw’s criticism of Marshall at the demotion meeting, as Marshall testified at her deposition, was that Marshall “do[es]n’t know what [she’s] doing, [she’s] completely inefficient. [She] come[s] in here long hours and [she] still can’t get [her] job done.” R. 37-1 at 27. That reflects an honest belief that Marshall worked too much to do too little, not that she was skipping too much work for her FMLA leave. And the lunch confrontation about office morale was over half a year after the demotion and had nothing to do with Marshall’s FMLA leave or mental health. The relevant law prohibits employers from retaliating. It does not obligate them to be polite and cheerful (even if that is the better course).

Bradshaw’s allegedly sarcastic question five months after Marshall had returned from her FMLA leave — “So are you planning on being out any time soon again?”— does not alter this conclusion. R. 34-5 at 19. Bradshaw and Marshall met to hammer out a timeline to complete work she could not seem to get done, and Marshall had used vacation and sick time recently. In context, Bradshaw’s question was just the sort of stray and ambiguous comment that is insufficient to prove discrimination, which is probably why she didn’t mention it when she first alleged he had harassed her. See, e.g., Donald v. Sybra, Inc., 667 F.3d 757, 763-64 (6th Cir. 2012); Smith v. Leggett Wire Co., 220 F.3d 752, 760 (6th Cir. 2000); Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025-26 (6th Cir. 1993).

Turn to the evidence with respect to Eisner. He also influenced the demotion decision, and he initiated the inquiry into Bradshaw’s alleged harassment, which led to George Rawlings’ decision to fire Marshall. On September 23, 2013, Eisner and another supervisor noticed that Marshall and a co-worker were not at their desks most of the day. The supervisors pulled the phone reports to confirm that Marshall and the co-worker hadn’t been working. When confronted, the co-worker apologized. But Marshall responded by alleging that Bradshaw had harassed her at the demotion meeting and lunch. Eisner reported the alleged harassment to Human Resources. Eisner, Plumley, and Marshall met to discuss the allegation. Plumley reassured Marshall by saying: “Gloria, you’re not going to get fired.” R. 37-1 at 36. But Plumley remained unconvinced by Marshall’s allegations and reported the investigation to George Rawlings, the owner of the company. Rawlings was the one who thought of firing Marshall, and he did so only after they met to discuss her harassment allegation. Nothing in this narrative suggests that Eisner had -a discriminatory animus toward Marshall. All the evidence points toward Eisner’s honest belief that the harassment allegation was a false excuse to deflect attention away from Marshall’s poor work ethic. Even if there could be a cat’s paw of a cat’s paw, that was assuredly not the role George Rawlings was playing when he suddenly decided to fire Marshall.

For these reasons, I would affirm Judge Russell’s thoughtful decision across the board. The Court seeing it otherwise on the FMLA retaliation and ADA discrimination claims, I respectfully dissent from those parts of its ruling.

      . “NR" stands for "no recovery.” See R. 34-3 (Eisner Dep. at 16-17) (Page ID #170-71). When an analyst is unable to recover any funds related to a specific file, the analyst marks the file “NR.” See id. As a team lead, part of Marshall's job was to review her team members' NR files to confirm that no recovery was possible. See id.

      . In the decision to demote Marshall, Marshall's allegations suggest that Plumley was the ultimate decisionmaker and Bradshaw and Eisner worked together, forming a single layer of supervision between Marshall and Plumley. The question about how to handle multiple layers of intermediate supervision, therefore, is not relevant to the decision to demote Marshall.

      . In a cat’s paw case, the honest-belief rule might apply to the allegedly biased lower-level decisionmaker; that is, the defendant might be able to show that the lower-level subordinate was not actually biased by showing that the lower-level subordinate held an honest belief that justified the adverse action against the plaintiff.

      . In one example of an investigation sufficiently independent to “change the subordinate's discriminatory animus from a proximate cause to a cause that is too remote to support cat’s paw liability,” a fire department supervisor, who was potentially biased, filed charges with the Board of Fire and Police Commissioners, the ultimate decisionmaker, requesting that the Board terminate a fire department employee. Woods v. City of Berwyn, 803 F.3d 865, 868, 870 (7th Cir. 2015). The Board held a hearing and "heard testimony, opening and closing statements, viewed exhibits and ruled on objections.” Id. at 868. The Seventh Circuit held that "the hearing broke the chain of causation because the record shows that the Board did not rely on the facts presented by the presumably bi? ased [supervisor]. Instead, the Board relied on testimony from [a different fire department employee], who did not harbor any discriminatory animus.” Id. at 871.

      . The Rawlings Company argues that Marshall waived this argument, but Marshall's brief does argue that Bradshaw and Eisner were biased against her because she took FMLA leave and because of her disabilities. -See Appellant Br. at 34, 37, 39, 41, 44, 49; see also Reply Br. at 4-5. Marshall’s discussion of the ADA and the differential treatment she received because of her disabilities is sufficient to overcome waiver.


source: Caselaw Access Project

author: FLAUM, Circuit Judge.

license: Public Domain

text:
    Richard M. SMEGO, Plaintiff-Appellant, v. Anita PAYNE, Amber Jelinek, and Okey Nwachukwu-Udaku, Defendants-Appellees.
    No. 13-2055
    United States Court of Appeals, Seventh Circuit.
    Argued February 21, 2017
    Decided April 12, 2017

      Daniel R. Fine, Attorney, Barack, Fer-razzano, Kirschbaum & Nagelberg LLP, Chicago, IL, for Plaintiff-Appellant.
    Brad A. Elward, Attorney, Heyl, Roy-ster, Voelker & Allen, Peoria, IL, for Defendants-Appellees.
    Before WOOD, Chief Judge, and FLAUM and ROVNER, Circuit Judges.
   FLAUM, Circuit Judge.

Near the end of his jury trial on various § 1983 claims, Richard M. Smego was removed from the courtroom. Various law students who had been appointed to act as his counsel remained behind. The jury ultimately returned a verdict in favor of defendants, and one of the law students declined to poll the jury without consulting Smego. Smego now appeals, arguing that the district court committed reversible error in removing him from the courtroom, and that he is entitled to a new trial under our holding in Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013), because he was deprived of his right to poll the jury. For the reasons that follow, we affirm.

I. Background

A. Factual Background

Smego is a civilly committed sex offender at a treatment and detention facility in Rushville, Illinois. In 2009, he filed suit against members of his treatment team: Anita Payne, Amber Jelinek, and Dr. Okey Nwachukwu-Udaku. Smego’s lawsuit alleged that in early 2009, another Rushville resident sexually assaulted him, and that afterward, defendants forced Smego to continue group therapy sessions with his alleged assailant and retaliated against Smego for filing suit. We held that Smego was entitled to a jury trial on those claims. See Smego v. Payne, 469 Fed.Appx. 470 (7th Cir. 2012) (hereinafter, Smego I).

Following our ruling in Smego I, at a hearing that Smego attended by video conference, the district court offered on its own motion to appoint students from a University of Illinois College of Law clinic to act as Smego’s counsel. At a hearing in May 2012, at which Clinical Law Professor Andrew Bequette and a law student appeared on behalf of the clinic, Smego agreed to the representation. Professor Bequette never filed a formal appearance in the case, however, and the May 2012 hearing was the last time that Bequette made an in-person appearance at any hearing. Neither his name nor signature appeared on any filings in the proceedings below. The only people who entered appearances to represent Smego, or whose names and signatures appeared on filings, were University of Illinois law students.

Before trial began, Smego appeared by video conference or telephone at several hearings. For the three-day trial itself, however, Smego appeared in person pursuant to a writ of habeas corpus ad testifi-candum. On April 17, 2013, the final day of trial, during an off-the-record break in the proceedings sometime after closing arguments, the district judge removed Smego from the courtroom to be transported back to Rushville. The court did not address this removal on the record and issued no cautionary instruction to the jury regarding Smego’s absence from the courtroom. The district court did, however, instruct the jury that, “Your agreement upon a verdict must be unanimous. Your verdict must be in writing and signed by each of you, including the presiding juror.”

The jury was released for deliberations at 2:06 PM, and at 3:30 PM, the jury notified the court that it had reached a verdict. At 3:43 PM, the jury returned and handed the verdict to the judge. The district court read, “We, the jury, find in favor of each of the defendants and against the plaintiff on both of his claims. All signed by all ten jurors.” Smego was not in the courtroom when the jury found in favor of defendants.

After the verdict was read, the district judge asked one of the law students representing Smego whether they wanted the jury polled, and the student, without consulting Smego, responded in the negative. The judge then asked the law students if they wished to end their representation of Smego. They answered affirmatively, and the district court immediately granted the motion.

B. Procedural Background

Smego filed a notice of appeal the following month. In December 2013, after we released our decision in Verser, Smego moved pro se to correct the record under Federal Rule of Appellate Procedure 10, to “include and reflect the fact that Plaintiff was not present for the end of trial including the reading of the verdict by the jury, the decision not to poll the jury, or for any part of the trial or proceedings after the Court signed the Order transporting [Smego] back to the Rushville Treatment and Detention Facility.” He asserted in his motion that “before the conclusion of trial and before the Jury returned from Lunch to receive the case and begin deliberating,” the district court had ordered him back to detention.

On July 18, 2014, the district judge entered a text order granting Smego’s motion “to the extent he seeks confirmation that, after the closing arguments and the jury was sent to deliberate, the court directed that he be transported back to the Rushville Treatment and Detention Center.” The order farther stated:

This was the court’s standard practice before Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013). However, unlike the plaintiff in Verser, Mr. Smego was represented during the trial by counsel, including when the jury verdict was read. The plaintiffs counsel declined to have the jury polled.

Smego initially proceeded pro se on his appeal. After briefing was complete, however, in an Order dated February 24, 2016, we struck the parties’ briefs, appointed counsel for Smego, and requested additional briefing on any issue identified by counsel. We also specifically requested briefing regarding:

whether the district court’s decision to exclude the plaintiff from the jury’s reading of the trial verdict, which is impermissible under Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013), if a plaintiff is pro se[,] was permissible in this instance because the district court had recruited law students to present the plaintiffs case at trial.

II. Discussion

We review a district court’s decision to exclude a detained litigant from his civil trial for abuse of discretion. Perotti v. Quinones, 790 F.3d 712, 721 (7th Cir. 2015). Abuse of discretion means a serious error of judgment, such as reliance on a forbidden factor, not considering an essential factor, or use of an incorrect legal standard. See United States v. Warner, 498 F.3d 666, 680 (7th Cir. 2007); Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1236 (7th Cir. 1997). “A district court also abuses its discretion if the record contains no evidence on which the court could have relied or if its findings of fact are clearly erroneous.” Warner, 498 F.3d at 680 (citation omitted).

In most instances, even if we conclude that a district court abused its discretion, the error is subject to harmless error review. See Fed. R. Civ. P. 61 (“Unless justice requires otherwise, no error ... by the court or a party ... is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.”); Keaton v. Atchison, Topeka & Santa Fe R.R., Co., 321 F.2d 317, 319 n.3 (7th Cir. 1963) (“Courts of Appeals ‘gladly’ follow [Rule 61] as the best practice.” (citing 7 Moore, Fed. Practice 1030 (2d ed. 1955))). However, if an error renders a trial “fundamentally unfair,” Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), or if the nature of a given ruling is such that a demonstration of harm is impossible, see Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1369-70 (7th Cir. 1990) (addressing ruling allowing magistrate judge to conduct voir dire), the error may be subject to automatic reversal.

A. Smego’s removal from the courtroom

As a civilly committed litigant, Smego’s constitutional right of access to the court in civil cases does not necessarily require that he be allowed to personally appear at the proceedings. Smego acknowledges that a lawfully incarcerated party’s right of access “is satisfied so long as he has the opportunity to consult with counsel and to present his case to the court.” Perotti, 790 F.3d at 721; see also Stone v. Morris, 546 F.2d 730, 735 (7th Cir. 1976) (explaining that “the right of access is satisfied” so long as “the inmate and his counsel are afforded adequate opportunity to confer confidentially and to petition the courts about matters in controversy”) (citation omitted). That said, “[t]he fact that there is no constitutional right to be present in a civil action does not sanction the summary exclusion of a plaintiff-prisoner from ... trial.” Stone, 546 F.2d at 735. “Rather[J the trial court must weigh the interest of the plaintiff in presenting his testimony in person against the interest of the state in maintaining the confinement of the plaintiff-prisoner.” Id. (citation omitted). We have explained that the district judge should consider a number of factors in making this determination, including:

the costs and inconvenience of transporting a prisoner from his place of incarceration to the courtroom, any potential danger or security risk which the presence of a particular inmate would pose to the court, the substantiality of the matter at issue, the need for an early determination of the matter, the possibility of delaying trial until the prisoner is released, the probability of success on the merits, the integrity of the correctional system, and the interests of the inmate in presenting his testimony in person rather than by deposition.

Id. at 735-36 (citation omitted); see also Perotti, 790 F.3d at 721; Verser, 741 F.3d at 739.

Smego contends that the district court abused its discretion and committed reversible error by removing him from the courtroom without cause and without weighing any of the Stone factors in making the decision (notwithstanding the fact that a number of those factors seem inapplicable to his case). See Stone, 546 F.2d at 736 (holding that the record showed the trial court did not sufficiently consider the relevant factors in concluding that Stone would not be permitted to attend trial). Defendants respond that the district judge did not need to balance the Stone factors here, because, unlike the litigant in Stone, Smego was present and able to participate in the defense of his case throughout the evidentiary portion of trial.

As a threshold matter, the parties dispute the timing of Smego’s removal from the courtroom. If Smego was removed after the jury was charged and missed only the reading of the verdict, as the district court’s 2014 order suggests, his removal could not have prejudiced him with respect to the verdict. If so, Smego’s claim collapses into his jury-poll argument, which we discuss below. If, as Smego maintains, he was removed prior to the jury being charged, we would likely need to consider whether his absence during instructions could have led the jury to harmfully infer that Smego had abandoned his case. What complicates matters here is that Smego’s removal occurred off the record — the trial transcript does not indicate when he was removed; nor did the district judge at any point put on the record the timing or reasons, if any, for Smego’s removal.

Smego argues that we should accept his consistent assertion that he was removed from the courtroom before the jury was instructed. However, his Rule 10 motion falls short of documenting his position — it said merely that he was not present for the end of trial, and that he was removed “before the Jury returned from Lunch to receive the case and begin deliberating.” This language does not address when the jury was charged. Defendants, meanwhile, submit that the district court already found, in response to Smego’s Rule 10 motion, that the court directed Smego’s removal from the courtroom only “after the closing arguments and the jury was sent to deliberate.” They also correctly observe that Smego’s motion presented only his “personal statements and offered no independent evidence, whether from others present, court or detention facility records, or statements from his counsel, as to when he was removed from the courtroom.”

Smego responds that the lack of clarity in the record is the fault of the district court, which failed to comply with the Court Reporter’s Act requiring verbatim recording of the entire proceeding. See 28 U.S.C. § 758(b) (“Each session of the court and every other proceeding designated by rule or order of the court or by one of the judges shall be recorded verbatim by shorthand, mechanical means, electronic sound recording, or any other method.... ”). Defendants first respond that Smego forfeited his objection to any noncompliance with the Act by failing to raise a contemporaneous objection. However, since there is no record of the occasion, this Court cannot know whether Smego objected or not. It would be unfair to assume that Smego did not object when the very issue is the lack of a record of the proceeding. See United States v. Neff, 10 F.3d 1321, 1324 (7th Cir. 1993) (“A complete record would enable us to determine whether the defendant knowingly and voluntarily forfeited any objection to the irregularity [of the district judge’s apparent practice of answering questions from the deliberating jury off the record and without the defendant present].”) (citation omitted). Indeed, it is not obvious that any party was aware at trial that Smego’s removal took place off the record; and following trial, Smego objected to the court’s handling of the matter, which seems to be all that was reasonably feasible under the circumstances.

Defendants next argue that the Court Reporter’s Act does not apply in the case at hand because there was no proceeding in “open court” after the jury had retired to deliberate. However, case law from both within and without our Circuit suggests that the Act applies to off-the-record court proceedings like Smego’s removal hearing. See, e.g., United States v. Nolan, 910 F.2d 1553, 1559 (7th Cir. 1990) (“[W]e agree with those courts that have applied § 753(b)’s recording requirement to sidebar discussions.... [T]he reason for requiring courts to record trial proceedings — to preserve a record for appellate review — supports applying § 753(b) to sidebars.”) (citation omitted); United States v. Lawson, 776 F.3d 519, 521 (7th Cir. 2015) (‘Wo(cto[’s] ... approach is equally applicable to other off-the-record decisions.”); United States v. Patterson, 23 F.3d 1239, 1254 (7th Cir. 1994) (jury questions “should be answered in open court and defendant’s counsel should be given an opportunity to be heard before the trial judge responds” (quoting Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975))) (internal quotation marks, brackets, and ellipsis omitted); United States v. Brumley, 560 F.2d 1268, 1281 (5th Cir. 1977) (“we suggest that if the trial court needs to confer with counsel about rulings to be made from the bench[,] the safe course is to excuse the jury or retire to chambers and let the reporter record what takes place”); United States v. Robinson, 459 F.2d 1164, 1170 (D.C. Cir. 1972) (per curiam) (proceedings covered by the act include “voir dire examination of the jury, evidentiary presentations before the judge or jury, bench conferences, and arguments of counsel”) (footnote omitted); see also Open Court, Black’s Law Dictionary (10th ed. 2014) (“A court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business.... usu. refers to a proceeding in which formal entries are made on the record”).

Yet, as we explained in Nolan, where a district court does not comply with § 753(b), we are not automatically required to reverse the court’s judgment. Reversal is warranted “only if the [aggrieved party] can demonstrate prejudice,” 910 F.2d at 1560 (citation omitted), and “prejudice occurs only when the unavailability of a transcript prevents the appellate court from determining whether there is reversible error,” United States v. Kimmons, 917 F.2d 1011, 1014 (7th Cir. 1990) (citation omitted). The normal course for “reconstructing a record” is to file a motion pursuant to Federal Rule of Appellate Procedure 10. See Nolan, 910 F.2d at 1560. That is exactly what Smego did here, and, in response, the district court clarified that Smego was removed only after the jury was sent to deliberate. Under this factual scenario, there is no prejudice to Smego, since the removal would not have affected jury deliberations.

Smego counters that Rule 10 may not always prove “an adequate device” when “trial participants’ recollections may be too vague, and notes and other trial materials too sketchy.” Id. He relatedly contends that we need not be bound by the district court’s reconstruction of the record if it is unreasonable. See United States v. Keskey, 863 F.2d 474, 478 (7th Cir. 1988) (“We must accept the court’s reconstruction of the record under Federal Rule of Appellate Procedure 10(c) unless it was intentionally falsified or plainly unreasonable.”) (citation omitted). Smego argues that the fifteen-month gap between the trial and the order, together with the lack of explanation of what sources allowed the district court to fix the time of Smego’s removal, render Rule 10 an inadequate solution in this case.

We review the finding of fact in the district court’s text order for clear error. See Ortiz v. Martinez, 789 F.3d 722, 728 (7th Cir. 2015) (citing Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011)). The district court noted in its order that removing detained litigants for transfer after the jury was sent to deliberate was the court’s “standard practice” pre-Verser. We have previously held that a district court may reference its standard practices when reconstructing the record. See Webster v. United States, 667 F.3d 826, 833 (7th Cir. 2011) (“Although the lack of a record is unsettling, it does not provide a sufficient basis to upset the district court’s factual finding. In the end, the judge’s finding rested heavily on the court’s normal practice of dismissing the jury for the day when a juror is absent.... Because no evidence suggested that the customary practice was not followed, the judge found that Webster had ‘not proved’ that the jury deliberated on November 29 without the twelfth juror.”). In this case, as in Webster, “[t]he most that can be said about th[e] evidence is that it is inconclusive,” which is not enough to set aside the district court’s finding of fact. Id. The district court may very well have made a reasonable inference based on its normal practice, and “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. (citation omitted).

As the district court’s finding on the timing of Smego’s removal stands, Stone ⅛ multi-factor test for removing a party from the courtroom may not even be necessary. Although there is arguably some importance in allowing a litigant to be present during the jury-instructions phase (in addition to the evidentiary phases) of trial, if we accept that Smego was not removed until after instructions, Sme-go’s interest in being present in person seems considerably diminished. And importantly, even assuming an abuse of discretion, Smego cannot demonstrate that any error was prejudicial to him. Under the district court’s timeline, if he was removed only after the jury was sent to deliberate, then we cannot see how his absence could have had any prejudicial impact on the outcome of the trial, separate and apart from his inability to poll the jury. There is no evidence in the record that the jury had questions during deliberation or had any other occasion to know that .Smego was no longer in the courtroom during deliberations. Smego’s absence thus could not have affected the deliberations, and his stand-alone removal claim fails.

B. Waiver of Smego’s right to poll the jury

We now consider the more specific issue of whether Smego’s removal deprived him of his right to poll the jury, such that he is entitled to a new trial. The pro se plaintiff in Verser was sent back to prison after jury instructions and was thus excluded from the remainder of the proceedings, including participation with respect to jury questions during deliberations, and exercise of his right to poll the jury pursuant to Federal Rule of Civil Procedure 48(c). Verser, 741 F.3d at 736-37, 741, 743. We held that Verser was entitled to a new trial. Id. at 743. We first noted the importance of a jury poll in ascertaining that each juror approved of the verdict as returned, ensuring accountability for the verdict, and helping to ferret out any dissent that may not have been reflected in the verdict as announced. See id. at 738 (citing Humphries v. Dist. of Columbia, 174 U.S. 190, 194, 19 S.Ct. 637, 43 L.Ed. 944 (1899); United States v. Sturman, 49 F.3d 1275, 1282 (7th Cir. 1995); United States v. Shepherd, 576 F.2d 719, 725 (7th Cir. 1978)). As a district court’s refusal, or even neglect, to conduct a requested jury poll is ground for a new trial, id. at 738-39, we concluded that the same result is required where a litigant is unable to make a polling request after the verdict is read, id. at 741. We explained that a litigant’s request for a jury poll prior to the verdict would be premature, as “[i]t is quite unlikely that a litigant would want a poll if the jury rules in her favor,” whereas “[i]f the verdict is unfavorable, the litigant might be more inclined to ask for a poll if there are indications that a verdict may not have been unanimous or was otherwise tainted.” Id. at 740; see also Fed. R. Civ. P. 48(c).

Unlike Verser, however, Smego had legal representatives who remained in the courtroom after his removal. Smego argues that counsel should not be considered adequate stand-ins when a detained civil litigant is removed without cause. However, our analysis in Verser itself urges otherwise. We emphasized there that “[w]hen a plaintiff is acting pro se ... the court must take into account the fact that excluding him from the courtroom necessarily also excludes his ‘lawyer.’ ” Id. at 739. We also cited to Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919), in which the Supreme Court explained that the right to be heard entitles one “to be present in person or by counsel at all proceedings.” Verser, 741 F.3d at 739 (citing Fillippon, 250 U.S. at 81, 39 S.Ct. 435) (emphasis added). It was specifically because Verser was pro se that his exclusion from the proceedings left him “entirely unable to participate in his case.” Id. In contrast, where a party is represented by counsel he is still “somehow able to make a polling request after the verdict is read.” Id. (emphasis added).

Smego emphasizes that his removal from the courtroom left him “incommunicado,” like Verser, in the moments after the jury announced its verdict, such that he could not ask his lawyer to poll the jury. He cites to Faretta v. California, 422 U.S. 806, 832, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), for the proposition that lawyers appear in court to assist parties, not to act as their alter egos, as well as to Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), in support of the proposition that the “ability to communicate with” counsel is one of litigants’ “primary advantages of being present at trial.” However, it is a basic principle of “our system of representative litigation” that “each party is deemed bound by the acts of his lawyer-agent.” Link v. Wabash R.R. Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); see also id. at 633-34, 82 S.Ct. 1386 (“Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.”). And as “an attorney is the agent of her client,” the former’s knowledge “is imputed to her principal.” Washington v. Parkinson, 737 F.3d 470, 473 (7th Cir. 2013) (citation omitted). Lawyers often act on their clients’ behalf outside their clients’ presence, and we see no reason why this should not extend to counsel’s ability to waive polling the jury.

There may of course be exceptions depending on the specific facts of a given case (perhaps, for example, where the client has been held incommunicado during the evidentiary stages of trial prior to the verdict). However, our usual harmless-error analysis can facilitate fair outcomes in such instances on a case-by-case basis. Indeed, Verser itself is illustrative of this point. There, after his removal from the courtroom, Verser was unable to learn of or participate with respect to several questions from the jury during deliberations. These included: (1) a note to the court after deliberating for about two hours asking whether there was any video of the key event at issue in Verser’s § 1983 case; (2) another note a little more than an hour later indicating that the jurors could not reach an agreement (to which the court responded that they could choose to return the next day or continue deliberating further that afternoon); (3) an indication less than an hour later that the jury had reached a verdict but asking, “Can a juror ask a question to the judge after the verdict is read?,” to which the court responded, “First, I have to have a verdict”; and finally, (4) a statement by one of the jurors after the reading of the verdict that, “This was very hard for us. Many of us — the majority feel that the defendants all had a part to play in what happened to Mr. Verser, but because there was a lack of evidence, we could not find the defendants guilty.” 741 F.3d at 737. We held that “[o]n these particular facts, we cannot say that the district court’s error was harmless,” as “Verser would have realized, had he had some way of knowing the circumstances attending the announcement of the verdict, that a poll might be fruitful.” Id. at 742-43.

In contrast, in Smego’s case, even assuming that Smego’s counsel could not waive Smego’s right to poll the jury, Sme-go would likely still be out of luck. The district judge instructed the jury that the verdict had to be unanimous, the jury returned such a unanimous verdict in an hour and a half without showing any signs of doubt or dissent, and all of the jurors signed the verdict. The facts here thus show significantly less risk of harm to the removed litigant than the circumstances in Verser did.

Smego also tries to make a broader argument that a rule of automatic reversal ought to apply if a litigant is wrongfully removed from the. courtroom and deprived of the right to poll the jury, regardless of whether the error is harmless. He says such a rule would be sensible because the difference between cases like his and the ones where a district court does not conduct a requested jury poll (where automatic reversal does apply) is merely “temporal.” Smego apparently overlooks that his counsel explicitly declined to request a jury poll. Moreover, we expressly engaged in a harmless-error review in Verser, see 741 F.3d at 742-43 (finding that Verser had been prejudiced); and the Supreme Court has stated that “the minor matter of failing to poll the jury when it is clear that the verdict has received the assent of all the jurors cannot be adjudged a nullity, but must be regarded as simply an error,” Humphries, 174 U.S. at 195, 19 S.Ct. 637.

Finally, Smego argues that even if a lawyer may be an acceptable stand-in for a removed litigant, the procedures related to the appointment and supervision of the law students in the Central District of Illinois were inadequate, such that his law student representatives should not have been able to waive his right to poll the jury. This argument was not presented to the district court on Smego’s Rule 10 motion, and we decline to .consider it on appeal. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.”). As we will not be remanding this case, we need not address Smego’s argument that Circuit Rule 36 ought to apply on remand.

III. Conclusion

For the foregoing reasons, we Affirm the judgment of the district court.

      . Federal Rule of Appellate Procedure 10(e)(2) provides:
      (2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
      (A) on stipulation of the parties;
      (B) by the district court before or after the record has been forwarded; or
      (C) by the court of appeals.
      Fed. R. App. P. 10(e)(2).

      . Although defendants suggest in a heading in their brief that the Court Reporter’s Act did not apply in Smego’s civil proceeding, the Act plainly requires verbatim recording not only of "all proceedings in criminal cases had in open court,” but also of "all proceedings in other cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary.” 28 U.S.C. § 753(b).

      . And indeed, the timing of the defendant’s removal in Verser is consistent with the district court's text order. See Verser, 741 F.3d at 737 ("After the parties finished presenting their evidence and the district court instructed the jury, the court decided to send Verser back to the prison rather than keep him in the court-house to await the verdict.... ”).

      . Federal Rule of Civil Procedure 48(c) provides:
      After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial.
      Fed. R. Civ. P. 48(c).

      . Smego submits that because he is civilly committed, allowing him access to his counsel would have required a video or telephone writ, and as no such writ issued after his removal from the courtroom, there is no basis for concluding that Smego was able to communicate with his law student representatives.


author: EASTERBROOK, Circuit Judge.

text:
    Kimberly AKER, et al., Plaintiffs-Appellants, v. AMERICOLLECT, INC., and Collection Associates, Ltd., Defendants-Appellees.
    No. 16-3663
    United States Court of Appeals, Seventh Circuit.
    Argued April 11, 2017
    Decided April 13, 2017

      John D. Blythin, Attorney, Ademi & O’Reilly, Cudahy, WI, for Plaintiffs-Appellants.
    David J. Hanus, Attorney, Brett B. Larsen, Hinshaw & Culbertson LLP, Milwaukee, WI, Kimberly A. Jansen, Attorney, Hinshaw & Culbertson LLP, .Chicago, IL, for Defendants-Appellees.
    Before WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges. .
   EASTERBROOK, Circuit Judge.

Plaintiffs received medical services but did not pay their bills. Their providers referred the debts to defendants, and dunning letters ensued. The debt collectors demanded payment not only of the principal sums but also of 5% per annum interest. Plaintiffs contend that this violates 15 U.S.C. § 1692g(a)(l), part of the Fair Debt Collection Practices Act, which says that debt collectors must specify the amount of the debt, plus other provisions of state and federal law. According to plaintiffs, Wisconsin law provides for interest (in the absence of a contractual provision) only if a debt has been reduced to judgment, and any prejudgment request for interest is forbidden.

The debt collectors might have replied that § 1692g(a)(l) is satisfied by demanding a specific amount. They calculated interest, added it to the principal, and demanded payment of the resulting amount, rather than leaving the debtors to guess how much they owed. The FDCPA provides a means to contest whether the amount claimed is due. 15 U.S.C. § 1692g(b). This implies that naming an incorrect figure is not automatically a violation of federal law. But defendants do not pursue this possibility, so we do not discuss it further. Instead they offer two principal responses.

First, they contend that interest under Wis. Stat. § 138.04 runs automatically— unless debts are uncertain in amount, or a contract provides otherwise — and that a judgment just memorializes what state law requires. If this is so, then a demand for 5% interest does not seek more than the current amount of the debt.

Second, they rely on Wis. Stat. § 426.104(4)(b), which creates a safe harbor for people who act in ways approved by the Administrator of Wisconsin’s Department of Financial Institutions — and treats the absence of a response within 60 days of a request as equivalent to. approval. The debt collectors sent the Administrator a letter asking if they are entitled to add 5% interest to debts created by the provision of medical services. The Administrator requested further information, which the debt collectors provided, and at that point the Department of Financial Institutions lapsed into silence. The debt collectors say that this entitles them to the statutory safe harbor. The district court agreed with both of the defendants’ arguments and granted summary judgment in their favor. Myers v. Americollect Inc., 2016 WL 5793696, 2016 U.S. Dist. Lexis 136941 (E.D. Wis. Sept. 30, 2016).

One of the two arguments suffices on appeal. The safe-harbor statute provides:

Any act, practice or procedure which has been submitted to the administrator in writing and either approved in writing by the administrator or not disapproved by the administrator within 60 days after its submission to the administrator shall not be deemed to be a violation of chs. 421 to 427 and 429 or any other statute to which chs. 421 to 427 and 429 refer notwithstanding that the approval of the administrator or nondisapproval by the administrator may be subsequently amended or rescinded or be determined by judicial or other authority to be invalid for any reason.

Plaintiffs seek to enforce their understanding of the interest statute through Wis. Stat. § 427.104(l)(j), which forbids attempts to collect more than the debt owed. Chapter 427 is expressly covered by § 426.104(4)(b). Nonetheless, plaintiffs insist that because demanding interest before a debt has been reduced to judgment is (in their view) a violation of § 138.04, we should not accord deference to the Administrator’s failure to disapprove the debt collectors’ request. But § 426.104(4)(b) is not about deference. It is a safe harbor, providing that the practices presented to the Administrator for opinion “shall not be deemed to be a violation” of other state laws, unless the Administrator later announces a different view or a court holds the Administrator’s position to be invalid. Thus, when the defendants sent their dunning letters, they were entitled to demand payment of both the principal amounts and interest under § 138.04. This means that the letters also did not violate 15 U.S.C. § 1692e(2)(A), which prohibits false representations about the character, amount, or legal status of a debt.

Plaintiffs maintain that § 426.104(4)(b) is preempted by 15 U.S.C. § 1692n, which says that states may add to but cannot subtract from the protections that the FDCPA offers to consumers. Yet § 1692n has nothing to do with interest— or for that matter with any other component of the debt. Section 1692n deals with -debt-collection practices, not how to determine the amount owed. The FDCPA itself provides that debt collectors may add interest when permitted by law. See 15 U.S.C. § 1692f(1); Miller v. McCalla, Raymer, Padrick, Cobb, Nichols & Clark, L.L.C., 214 F.3d 872, 876 (7th Cir. 2000). The safe harbor, if not § 138.04 itself, permits defendants to add 5% interest to plaintiffs’ debts.

State law is the right source for determining interest on a state-law debt. When federal law creates a debt, it may govern prejudgment interest too. See Williamson v. Handy Button Machine Co., 817 F.2d 1290 (7th Cir. 1987) (Title VII of the Civil Rights Act of 1964); cf. In re Oil Spill by the Amoco Cadiz off the Coast of France on March 16, 1978, 954 F.2d 1279, 1331-37 (7th Cir. 1992) (US admiralty law, when parties declined to rely on other nations’ rules). But plaintiffs’ debts arise under state contract law, so the controlling question is whether state law allows a demand for interest before the debt has been reduced to judgment. Until the Administrator says something more, or a state court lifts the safe harbor under § 426.104(4)(b) (and in addition rules that § 138.04 does not by itself allow the debt collectors’ practice), neither state nor federal law forbids dunning letters that' demand 5% interest from debtors in Wisconsin.

Veach v. Sheeks, 316 F.3d 690 (7th Cir. 2003), on which plaintiffs principally rely, does not concern any feature of Wisconsin law. Veach held that a letter demanding a monetary amount plus treble damages that a court might award in the future under Indiana law did not comply with federal law because it did not specify the sum immediately payable. That conclusion has nothing to do with the parties’ dispute about interest in Wisconsin. Other provisions of state and federal law mentioned in passing by the plaintiffs, and not addressed above, do not require separate analysis.

Affirmed