text:
    Shannon VOLLING and Allen Springer, Plaintiffs-Appellants, v. KURTZ PARAMEDIC SERVICES, INC., Defendant-Appellee.
    No. 15-3572
    United States Court of Appeals, Seventh Circuit.
    Argued September 15, 2016
    Decided October 19, 2016

      M. Megan O’Malley, Lindsey Erin Goldberg, O’Malley & Madden, P.C., Chicago, IL, for Plaintiffs-Appellants.
    Melinda S. Kollross, John M. Hynes, Clausen Miller, Chicago, IL, for Defendant-Appellee.
    Before FLAUM, MANION, and HAMILTON, Circuit Judges.
   FLAUM, Circuit Judge.

Plaintiffs Shannon Volling and Allen Springer brought federal and state retaliation claims against Antioch Rescue Squad (“ARS”) and its subcontractor, Kurtz Paramedic Services, Inc. (“Kurtz”). Plaintiffs allege the companies wrongfully refused to hire them as emergency medical technicians (“EMTs”) because of plaintiffs’ earlier complaints alleging sexual harassment against ARS and Metro Paramedic Services, Inc. (“Metro”). Plaintiffs settled with ARS, and Kurtz moved to dismiss plaintiffs’ claim. The district court dismissed the case with prejudice. We affirm, in part, and reverse, in part.

I. Background

A. Factual Background

Plaintiffs Shannon Volling and Allen Springer worked as EMTs for Metro and its contractor, defendant ARS. ARS provided emergency medical services and ambulance transport to the Village of Antioch and surrounding areas using a two-tiered employment structure. For daytime, weekday shifts, ARS used paid EMTs through subcontracts with private ambulance companies. For evening and weekend shifts, ARS used unpaid EMT volunteers. Volling began working for ARS as an unpaid, evening and weekend EMT in May 2008. Later, in March 2010, she transitioned to paid, weekday shifts under ARS and Metro. Springer began working for ARS and Metro in 2009.

In April 2011, Volling filed charges against ARS and Metro with the Equal Employment Opportunity Commission, alleging sexual harassment, discrimination, and retaliation. Later, in July 2011, Volling filed a complaint in the Northern District of Illinois against ARS and Metro, alleging sex discrimination and misconduct in violation of the Emergency Medical Services Act. Volling alleged a panoply of illegal behavior- including sexual harassment, physical and sexual' abuse of patients, and on-duty alcohol and drug abuse. On October 26, 2011, Volling reported this misconduct to the Illinois Department of Public Health, sparking an investigation, fines, and EMT license suspensions. Through June 2012, Volling continued to pursue her federal lawsuit, raise her concerns at ARS meetings, and attend Village of Antioch public meetings addressing ARS issues.

In late 2011, Springer filed a supporting declaration in Veiling’s lawsuit against ARS and Metro. He also aided the Illinois Department of Public Health’s investigation into ARS. Finally, Springer, like Voll-ing, voiced his concerns at both ARS and Village of Antioch meetings.

Plaintiffs alleged that ARS began acting against them immediately after they filed the lawsuit and declaration. Volling claimed ARS reduced her work hours and threatened to terminate her employment. Similarly, Springer claimed ARS disciplined him for talking about Veiling’s lawsuit and denigrating ARS management.

The alleged retaliation at issue in this case started on June 16, 2012. ARS terminated its subcontract, with Metro and all eight daytime, weekday Metro EMTs. On the same day, ARS replaced Metro with defendant Kurtz. The next day, Kurtz began exclusively hiring former Metro EMTs. Kurtz did not publicize its EMT vacancies or inform plaintiffs about them. ARS instructed every former Metro EMT—except plaintiffs—on how to apply for employment under the new Kurtz contract. Kurtz then asked ARS for the former Metro EMTs’ contact information to schedule interviews. Neither Volling nor Springer received application instructions, applied, or interviewed for a Kurtz EMT position. Ultimately, within one day, ARS and Kurtz allegedly “jointly” rehired every other Metro EMT except Volling: and Springer.

B. Procedural Background

In June 2014, plaintiffs filed suit against ARS and Kurtz, bringing federal and state retaliation claims. First, plaintiffs alleged ARS and Kurtz acted against them for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) (“Title VIP). Second, they said defendants violated the Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1-101, et seq. (“IHRA”) and the Illinois Whistleblower Act, 740 Ill. Comp. Stat. 174/1, et seq. (“IWA”). ARS settled with plaintiffs. Kurtz moved to dismiss plaintiffs’ complaint.

On March 9, 2015, the district court granted Kurtz’s motion to dismiss. The court found plaintiffs had failed to exhaust their administrative remedies as required under Title VII and the IHRA. The district court also concluded that, regardless, plaintiffs had failed to adequately state a claim for relief, as they did not apply for employment with Kurtz. Plaintiffs moved for reconsideration and for leave to file an amended complaint. On July 10, 2015, the district court granted the latter request.

On July 31, 2015, plaintiffs filed an amended complaint with additional details, alleging the same violations. Kurtz again moved to dismiss plaintiffs’ complaint. This time, the district court dismissed plaintiffs’ case with prejudice. The court first found plaintiffs had failed to establish an adverse employment action under Title VII and the IHRA, as they did not apply for employment with Kurtz. Further, the court held that plaintiffs failed to adequately link their protected activity against ARS and Metro to any adverse employment action. Finally, the district court dismissed plaintiffs’ IWA claims because they were never Kurtz’s employees and were outside the statute’s scope. ■

Plaintiffs now appeal.

II. Discussion

We review de novo a district court’s grant of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. Roberts v. City of Chi., 817 F.3d 561, 564 (7th Cir. 2016) (citation omitted). “In construing the complaint, we accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs’ favor.” Id. (citation omitted). To survive a motion to dismiss, the complaint must “state a claim to relief that is plausible on its face.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A. Title VII and the Illinois Human Rights Act

“Title VII prohibits various ‘unlawful employment practices’ involving discrimination on the basis of ‘race, color, religion, sex or national origin.’” E.E.O.C. v. CVS Pharmacy, Inc., 809 F.3d 335, 339 (7th Cir. 2015) (quoting 42 U.S.C. §§ 2000e-2, 2000e-3). Title VII also prohibits discriminating against an employee “because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Retaliation is also “a cognizable claim under ... the IHRA.” Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 887 (7th Cir. 2016) (citing 775 Ill. Comp. Stat. 5/6-101). Illinois courts apply the federal Title VII framework to IHRA claims. See Robé v. United Air Lines, Inc., 971 F.Supp.2d 807, 821 (N.D. Ill. 2018) (citing Zaderaka v. Ill. Human Rights Comm’n., 131 Ill.2d 172, 137 Ill. Dec. 31, 545 N.E.2d 684, 687 (1989)). To succeed on a Title VII retaliation claim, plaintiffs must “present evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two.” Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010) (citation omitted).

In the case at hand, it is undisputed that plaintiffs engaged in protected activity. The dispute, therefore, revolves around the final two elements."

1. Materially Adverse Employment Action

Plaintiffs allege Kurtz refused to hire them in retaliation for their engaging in protected activity against ARS and Metro. In the “failure to hire”- context, a plaintiff satisfies the materially adverse employment action requirement by showing she “(1) ... engaged in a statutorily protected activity; (2) ... applied and had the technical _ qualifications required for the ... position; (3) ... was not hired for the position; and (4) a similarly situated individual who did not [engage in statutorily protected activity] was hired for the position.” Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 812 (7th Cir. 2005). It is undisputed that plaintiffs engaged in protected activity, were qualified for the job, were not hired, and that others who did not engage in protected activity were hired. What the parties dispute is whether plaintiffs’ failure to apply to the new Kurtz positions is fatal to their retaliation claims.

We conclude plaintiffs adequately pled an adverse employment action against Kurtz despite not. applying for the EMT positions. “[T]he Supreme Court made clear in McDonnell Douglas that the prima facie [Title VII] case is not inflexible ...” Hague v. Thompson Distrib. Co., 436 F.3d 816, 821 (7th Cir. 2006). “The facts necessarily will vary in Title VII cases, and the ... prima facie proof required from [employees] is not necessarily.applicable in every respect to differing factual situations.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (Title VII plaintiffs need only initially “create an" inference that an employment decision was based on [an illegal] discriminatory criterion”); Ortiz v. Werner Enters., Inc., 834 F.3d 760, 766, No. 15-2574, 2016 WL 4411434, at *5 (7th Cir. Aug. 19, 2016) (observing that “all evidence belongs in a single pile and must be evaluated as a whole” rather than separated artificially between direct and indirect methods of proof). As such, “[t]he expression ‘prime facie case’ in Title VII litigation popularly refers to a common, but not exclusive, method of establishing a triable issue of intentional discrimination.” Loyd v. Phillips Bros., Inc., 25 F.3d 518, 522 (7th Cir. 1994) (citation omitted).

In light of this flexibility, we have previously relaxed the application requirement in certain circumstances. See id.; see also Int’l Bhd. of Teamsters, 431 U.S. at 365, 97 S.Ct. 1843 (“The effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity.”). The district court correctly highlighted the “failure to promote” context as one example. See Loyd, 25 F.3d at 523 (no application necessary when an employer “does not solicit and await applications but hands .out promotions on its own initiative in a nonselec-tive, serial fashion”)* Another such circumstance, however, exists when “an employer ordinarily entertains applications for a certain type of job but a plaintiff is deterred from applying by the very discriminatory practices he is protesting.” Id. The Supreme Court has recognized that requiring applications in this context could effectively bar “victims of the most entrenched forms of discrimination” from Title VII relief. Int’l Bhd. of Teamsters, 431 U.S. at 367, 97 S.Ct. 1843. Employees, for example, may be dissuaded from applying “by the manner in which [the employer] publicizes vacancies [or] his recruitment techniques.” Id. at 365, 97 S.Ct. 1843.

In cases such as this, the employer’s “manner” of publication may involve the discriminatory absence of publication. Silently preventing protected class members from applying, rather than explicitly deterring them, is harder to detect and prevent. In either case, the prospective employee suffers an adverse employment action despite not applying. Here, by allegedly' informing only the former Metro EMTs who had not engaged in protected activity of the open positions, Kurtz discriminated against plaintiffs. Thus, plaintiffs’ failure to apply stemmed from the very discriminatory practice they complain of, and their failure to apply need not bar their retaliation claims. See Loyd, 25 F.3d at 523.

Our decision in Babrocky v. Jewel Food Co. is instructive. 773 F.2d 857 (7th Cir. 1985). There, female employees filed a Title VII sexual discrimination claim against both their employer and union for exclusively filling “meat-cutter” positions with men and “meat-packing” positions with women. Jewel relied on union referrals to fill these positions. The district court dismissed the plaintiffs’ claims, in part because the women did not apply for meat-cutting positions. We disagreed and reversed in part, holding that the district court had applied “the McDonnell Douglas framework too literally when it rejected the balance of plaintiffs’ claims” in the absence of formal applications. Id. at 867. We noted, “[n]o notices of vacancies were ever posted, nor had the Union ever recommended any of its women members for these positions. Consequently, the plaintiffs were never informed of the vacancies for which they could apply.” Id.

The same potential for discriminatory lack of notice presents itself here. Kurtz had EMT openings and relied exclusively on ARS for referrals. The two companies allegedly “jointly” refused to inform plaintiffs of the new EMT positions, while informing all other former Metro EMTs who had not engaged in protected activity. No application is necessary in such circumstances.

Kurtz argues Loyd is inapplicable, as plaintiffs complained of sexual harassment against ARS and Metro, not Kurtz. It was not Kurtz, it concludes, that deterred plaintiffs from applyiiig. Kurtz, however, focuses on the wrong claim of discrimination. While plaintiffs originally alleged sexual harassment against ARS and Metro, they now allege retaliatory discrimination against ARS and Kurtz. It is this second instance of discrimination, plaintiffs allege, that kept them from applying. Again, although Loyd identified discrimination that “deters” applicants from applying, logic dictates that discrimination preventing applicants from applying also constitutes an adverse employment action. Thus, Loyd applies. It is sufficient for plaintiffs to plead that, absent Kurtz’s retaliatory discrimination, they would have sought the position. See Fischer v. Avanade, Inc., 519 F.3d 393, 402 n.2 (7th Cir. 2008) (citing Loyd, 25 F.3d at 523). They did just that. As a result, Plaintiffs adequately pled an adverse employment action despite not applying for Kurtz employment.

2. Causal Connection

Next, the district court concluded that plaintiffs failed to allege a causal connection between Kurtz’s adverse employment action and their protected activity. Likewise, Kurtz holds itself out as a completely separate, new subcontractor under ARS with no previous relationship to plaintiffs. Kurtz suggests, and the district court agreed, that plaintiffs’ allegations tend to state a claim against ARS, and ARS only.

It is true that a formal application can satisfy the causality requirement. “But, of course, it is not true that the causal gap can never be bridged by something short of the formal submission of an application.” Loyd, 25 F.3d at 523. Rather, inherent in the logic of Loyd is the requisite causal connection: An application is unnecessary when a plaintiff can show she would have applied had it not been for the complained-of discriminatory practices. See id. (citations omitted).

Here, plaintiffs contend Kurtz’s alleged retaliatory discrimination—purposefully failing to inform plaintiffs of the new hiring process—caused plaintiffs’ failure to apply. Under the complaint, plaintiffs engaged in protected activity, and Kurtz was allegedly aware of this activity as ARS and Kurtz jointly retaliated against plaintiffs for this activity by intentionally excluding them from the EMT application process. Accordingly, plaintiffs adequately pled a causal connection between an adverse employment action and their protected activity.

Both the district court and Kurtz question why Kurtz would be motivated to retaliate against plaintiffs’ protected activity against ARS and Metro. Both, however, overlook the fact that “no one may follow the rule ‘we do not employ anyone who has ever made a Title VII charge against a prior employer.’” Flowers v. Columbia Coll. Chi., 397 F.3d 532, 533 (7th Cir. 2005) (citation and quotation marks omitted). Indeed, “[n]o employer may retaliate against someone who makes or supports a charge of discrimination against any employer.” Id. at 534. Thus, regardless of Kurtz’s motive behind its alleged retaliation, plaintiffs successfully pled a Title VII discrimination claim against it.

Accordingly, we reverse the district court’s opinion regarding plaintiffs’ Title VII and IHRA claims and remand for further proceedings. Plaintiffs adequately pled both an adverse employment action and a causal link between that action and their protected activity.

B. The Illinois Whistleblower Act

Next, plaintiffs allege Kurtz violated the TWA. The district court, however, correctly dismissed this claim.

Plaintiffs first argue the district court erroneously retained pendent jurisdiction over their remaining state law claims after dismissing their Title VII claim. The district judge, however, “is given broad power in determining ... whether it is appropriate to retain jurisdiction over the state law claims.” Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 728 (7th Cir. 1998), “Pendent jurisdiction is a. power which the district court, in the exercise of its sound discretion, may choose to grant....” Id.As such,- the district court did not abuse its power in retaining jurisdiction over plaintiffs’ state IWA claim.

The district court also correctly dismissed the IWA claim. The IWA provides that “[a]n employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation.” 740 Ill. Comp. Stat. 174/20. It defines ‘‘employee” as “any individual who is employed on a full-time, part-time, or contractual basis by an employer.” 740 Ill. Comp. Stat. 174/5. Plaintiffs say the IWA should be read to include “prospective employees,” pointing to Title VII and the IHRA. The plain language of the statute, however, does not warrant such a reading. Moreover, plaintiffs’ reliance on other statutes is unpersuasive. Unlike in the Title VII and IHRA contexts detailed above, plaintiffs do not cite here to any cases illustrating flexibility in the requisite employment relationship for purposes of the IWA. As such, this case falls outside the statute’s scope. We agree with the district court that plaintiffs’ IWA claims cannot proceed because plaintiffs were never Kurtz employees.

C. Circuit Rule 36

Finally, plaintiffs move for this Court to assign the case to a new district judge pursuant to Circuit Rule 36. This Court has invoked Circuit Rule 36 “to avoid the operation of bias or mindset which seems likely to have developed from consideration and decision of motions to dismiss or ... the like.” CMFG Life Ins. v. RBS Sec., Inc., 799 F.3d 729, 750 (7th Cir. 2015) (quoting Cange v. Stotler & Co., 913 F.2d 1204, 1208 (7th Cir. 1990)). We see no indication of bias and are - confident that upon remand the district court will consider the issues fairly. As such, we see no reason to reassign the case, and deny the request.

III. Conclusion

For the foregoing reasons, we Affirm, in part, and Reverse, in part, the judgment of the district court and Remand for further proceedings.

      . Metro is not a party to the present case.

      . The record does not reflect whether ARS delivered plaintiffs’ contact information to Kurtz.

      . Plaintiffs also allege they presented sufficient circumstantial evidence illustrating a causal connection between their protected activity and Kurtz’s adverse employment action. We find no need to turn to circumstantial evidence in light of the above allegations.

      . Plaintiffs also borrow from labor law and argue ARS and Kurtz are "joint employers," attempting to impute to Kurtz ARS's retaliatory motive and knowledge. We do not address ARS and Kurtz’s employment relationship, as it is irrelevant at this stage of the litigation.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    LEND LEASE (US) CONSTRUCTION INC., Plaintiff-Appellant, v. ADMINISTRATIVE EMPLOYER SERVICES, INC. and Technology Insurance Company, Inc., Defendants-Appellees.
    Nos. 16-1294 and 16-1739
    United States Court of Appeals, Seventh Circuit.
    Argued September 16, 2016
    Decided October 20, 2016
    Theresa A. Guertin, Saxe Doernberger & Vita, P.C., Trumbull, CT, for Plaintiff-Appellant .
    David M. Macksey, Joseph R. Marconi, Ramses Jalalpour, Johnson & Bell, Ltd., Chicago, IL, Dennis M. Rothman, Lester Schwab Katz & Dwyer, LLP, New York, NY, for Defendant-Appellee Administrative Employer Services, Inc.
    Kevin M. Lougachi, Karbal, Cohen,-Eco-nomou, Silk & Dunne, Chicago, IL, Tania Gondiosa, Mound Cotton Wollan & Green-grass LLP, New York, NY, for Defendant-Appellee Technology Insurance Company, Inc.
    Before POSNER, RIPPLE, and . ROVNER, Circuit Judges.
   POSNER, Circuit Judge.

In 2014, Lend Lease construction company, the construction manager of the River Point Tower Project—a project to build an ultramodern office building in downtown Chicago—hired Cives Corporation to be a subcontractor on the project. Cives in turn hired Midwest Steel, Inc., to be a sub-subcontractor. Midwest had, years before, hired Administrative Employer Services, Inc. (AES) to supply Midwest with additional workers, who would be co-employed by Midwest and AES. These workers would work on the River Point Project.

In order to provide workers’ compensation insurance to all the workers on the project, Lend Lease entered into what is called a “contractor controlled insurance program” with an ■ insurance company named Starr Liability & Indemnity Co. The Starr policy provided for a $500,000 deductible; that is, Lend Lease would have to pay the first $500,000 of any claims, covered by the policy, of injured workers. All subcontractors were supposed to join in the policy; Lend Lease alleges that Midwest enrolled and therefore its workers were covered. Lend Lease also alleges that AES had several years earlier obtained workers’ compensation for its workers from Technology Insurance Co. (referred to by the parties as “TIC”), which meant that injured AES-Midwest workers could obtain workers’ compensation from either Starr (or Lend Lease if it hadn’t used up its deductible) or TIC.

Later in 2014, four ironworkers, jointly employed by Midwest and AES and performing work for Midwest (and thus indirectly for Lend Lease, as the overall contract manager) were injured on the job and sought workers’ compensation. Starr accepted coverage but under a reservation of rights, because of the $500,000 deductible. The workers’ claims ultimately exceeded $500,000 (though by how much we haven’t been told), so Lend Lease has had to pay its full deductible and Starr has paid the remaining claims.

But with Midwest and AES having acknowledged that they were the co-employers of the injured workers, Lend Lease filed a diversity suit against TIC, AES’s insurer, and' AES as well, seeking reimbursement of the $500,000 in workers’ compensation benefits that Lend Lease had paid to the four workers. The district court dismissed the suit, however, precipitating this appeal to us by Lend Lease.

Lend Lease alleges that' the four injured workers were insured both by Starr and by TIC, and if this is right there would be an argument for splitting the workers’ compensation benefits between the two insurers—and indeed we learned at oral argument that Starr has filed its own lawsuit against AES and TIC. See Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill.2d 307, 290 Ill.Dec. 218, 821 N.E.2d 269, 316 (2004) (“Contribution as it pertains to insurance law is an equitable principle arising among coinsurers .., and is only available where the concurrent policies insure the same entities, the same interests, and the same risks.”) (emphasis added). But that’s not this case; and in this case Lend Lease is not asking for a split between coinsurers—what good would that do it? Instead it argues that because it is a policyholder that paid a deductible in conformity to the Starr policy, it is entitled to contribution, or in the alternative to indemnification, .from TIC, in the amount- of $500,000, which would erase Lend Lease’s deductible. Had it not been for the deductible, Starr would have had to pay the entire workers’ compensation benefits due the injured employees, so it saved money—but so did Lend Lease, though probably less, than the deductible. For the deductible, by reducing Starr’s risk, doubtless had reduced the insurance premiums charged Lend Lease by Starr, by reducing Starr’s potential liability to workers injured while employed on Lend Lease’s construction project. Anyway, Lend Lease made a deal with Starr and is bpund by it.

■ Lend Lease also asks for a declaratory judgment that TIC is obligated to pay the workers’ compensation benefits for the four injured workers, as well as the benefits for any future ABS-Midwest workers who are injured on the project. Since we’ve rejected its claim for contribution or indemnification from TIC, there is no ground for the declaratory judgment that it seeks.

Lend Lease makes a separate and distinct argument that AES has been unjustly enriched because it “has paid less premium for its workers compensation insurance policy (i.e., the TIC Policy), it has not had to satisfy any applicable deductible or self-insured ■ retention on the TIC Policy, and/or it has not had the claims of the Injured Workers counted against its insurance loss runs [reports that document claims activity].” But AES was not obligated to purchase an insurance. policy that would get Lend Lease out of paying its deductible.

Last, Lend Lease appeals the denial of its motion under Federal Rule of Civil Procedure 59(e) asking the district judge to change judgment from dismissal with prejudice to dismissal without prejudice in order to allow Lend Lease to file a fourth complaint that would add Starr as a plaintiff and Midwest as a defendant, and assert new claims against AES. But Lend Lease has already had three chances to plead correctly—making this a case of three strikes and you’re out—and Starr can litigate its own claims against TIC.

The judgment of the district court is

Affirmed.


author: HAMILTON, Circuit Judge.

text:
    Stephen D. WESBROOK, Ph.D., Plaintiff-Appellant, v. Karl J. ULRICH, M.D., and Edward A. Belongia, M.D., Defendants-Appellees.
    No. 15-3870
    United States Court of Appeals, Seventh Circuit.
    Argued September 8, 2016
    Decided October 20, 2016

      Lester A. Pines, CULLEN WESTON PINES & BACH LLP, Madison, WI, for Plaintiff-Appellant.
    Emily M. Feinstein, Rachel A. Graham, Edward King Poor, Donald Karl Schott, QUARLES & BRADY LLP, Madison, WI, for Defendants-Appellees.
    Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

This appeal presents issues under Wisconsin law on the scope of tort remedies a fired at-will employee might have not against his employer but against individual supervisors and co-workers. Plaintiff Dr. Stephen Wesbrook, a former employee of the Marshfield Clinic Research Foundation, brought this lawsuit against Dr. Edward Belongia, a former colleague, and Dr. Karl Ulrich, the chief executive officer of the Marshfield Clinic. Wesbrook contends that Belongia and Ulrich tortiously interfered with his at-will employment, engineering his termination by publishing defamatory statements about him to the Marshfield Clinic board of directors.

The district court. granted summary judgment to the defendants. Wesbrook has appealed. Wisconsin. tort law governs this case, which is within the federal courts’ diversity jurisdiction under 28 U.S.C. § 1332. The undisputed facts show that the defendants’ statements about the plaintiff were true or substantially true and therefore privileged. Under Wisconsin law, an at-will employee cannot recover from former co-workers and supervisors for tor-tious interference on the basis of their substantially ..truthful statements made within the enterprise, no matter the motives underlying those statements. We therefore affirm the judgment of the district court.

I. Factual and Procedural Background

We review de novo the district court’s grant of summary judgment to the defendants. Boston v. U.S. Steel Corp., 816 F.3d 465, 462 (7th Cir. 2016). To prevail on summary judgment, the defendants must show that there is no “genuine dispute as to any material fact” and that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Like the district court, we must construe all evidence and draw all reasonable inferences in favor of the non-moving party, plaintiff Wesbrook. See Woods v. City of Berwyn, 803 F.3d 865, 869 (7th Cir. 2015).

A. The Parties

This case arises from strategic disagreements and a power struggle within the Marshfield Clinic, a prominent not-for-profit health care system headquartered in Marshfield, Wisconsin. At all relevant times, defendant Ulrich served' as president and chief executive officer of the Clinic and as a member of its board of directors. One of the Clinic’s divisions is the Marshfield Clinic Research Foundation (“the Research'Foundation”), which'is the largest private medical research institute in Wisconsin. During the years in question, Dr. Humberto Vidaillet served as director of the Research Foundation. Plaintiff Wes-brook was deputy director from 2006 until his termination took effect January 2, 2012. Defendant Belongia was also employed at the- Research Foundation as a senior research scientist and research center director. " ''

B. Conflict at the Research Foundation ■

Proceedings in the district court narrowed Wesbrook’s allegations against Ul-rich and Belongia to a claim for tortious interference with his employment based on four statements that Ulrich' published to the Clinic’s board of directors: (1) Wes-brook coerced Research Foundation employees he supervised; (2) some Research Foundation employees filed complaints against Wesbrook; (3) Wesbrook breached a performance improvement plan; and (4) a prominent supporter of the Clinic spoke with over forty people associated with the Clinic and the Research Foundation, many of whom complained about Wesbrook. As explained below, each of these statements was substantially true, but some further factual background is needed to understand this litigation and the implications of the parties’ legal positions.

Wesbrook’s tenure as deputy director of the Research Foundation was marked by internal conflict. Problems first surfaced during , his candidacy for the deputy position. One member of the interview committee remarked: “I would be reluctant to hire someone who has so clearly and dramatically polarized the basic scientists that constitute the ‘core’ of the research organization.” (Wesbrook was then already known to the committee; he had worked at the Research Foundation previously, from 2000 to 2005.) Another employee threatened to resign if Wesbrook were rehired and followed through on that threat shortly after Wesbrook returned.

Though Wesbrook had a good working relationship with his immediate supervisor, Vidaillet, his relationship with Ulrich was stormy. Ulrich wanted to change the Clinic’s organizational structure. On several occasions between May 2008 and September 2011, Ulrich tried but failed to reduce the independence of the Research Foundation’s board of trustees and to transfer oversight of the Research Foundation’s endowment to the Clinic’s executive leadership. Collaborating with Vidaillet and the Research Foundation’s trustees, Wesbrook helped defeat these efforts.

In July 2008, Ulrich also circulated a shareholder proposal to switch the Clinic from its democratic, physician-led governance structure to a more conventional corporate model. According to .Vidaillet, the proposal would have resulted in Ul-rich’s automatic selection as interim CEO, a position that would have given him substantial influence over appointments of new board members. Vidaillet vigorously opposed Ulrich’s plan, and he recruited Wesbrook to help his campaign against it. Ulrich’s proposal was defeated, as were similar proposals in 2009 and 2011.

C. Employee Complaints

The undisputed evidence also shows conflict and tension within the Research Foundation where Wesbrook was deputy director. In March 2010, an employee alerted David Keefe, director of human resources, that Wesbrook and Vidaillet had been making derogatory comments about Research Foundation scientists, prompting some of them to resign. Then another employee alerted the Research Foundation’s board of trustees that fifteen scientists had left the foundation since 2006. On April 13, 2010, the Clinic’s board of directors asked the human resources department to investigate why the fifteen scientists had left and whether there was a “culture of intimidation” at the Research Foundation.

Keefe investigated. He spoke with nine of the fifteen scientists who had left the Research Foundation. In response to open-ended questions, several described Wes-brook’s management style using words such as “cold, militaristic, harsh, retaliatory, abusive, negative, hostile, confrontational, out of control, threatening, boot-camp-like, and contentious.” While Keefe was investigating, other employees brought additional concerns to Ulrich’s attention. One research scientist told Ulrich that Wesbrook’s management style was “oppressive” and that he “retaliated against scientists who questioned or disagreed with his decisions.” Another scientist described Wesbrook as “intimidating and vindictive” and blamed Wesbrook for creating a “toxic” environment. An emeritus research clinician told Ulrich that employees found Wesbrook “intimidating and demeaning” and that they “feared retribution if they said anything that was contrary” to Wesbrook.

Ulrich scheduled a meeting with Wes-brook for September 2, 2010. He planned to address Wesbrook’s management style and the possible consequences of his behavior. On the morning of the scheduled meeting, Ulrich notified Vidaillet (Wes-brook’s immediate supervisor) about his intentions for the meeting. Vidaillet then told Wesbrook to take the day off, and Wesbrook did so. In light of the complaints about Wesbrook and his absence from the meeting, Ulrich fired Wesbrook. However, at Vidaillet’s behest, and by the narrow vote of nine to eight, the Clinic’s board of directors overruled Ulrich and reinstated Wesbrook on September 7, 2010.

While Wesbrook narrowly avoided termination in 2010, students of organizational behavior will not be surprised to learn that tensions at the Research Foundation continued to simmer. In March 2011, three administrators of the foundation’s research centers complained to Keefe in human resources about Wesbrook’s micromanagement and his pattern of retaliation. In July, a veteran research scientist resigned because she “wanted to get away from Dr. Wesbrook.” Another. scientist resigned that same month. Before leaving, he spoke with Belongia about the administrative environment at the Research Foundation, which he characterized as “increasingly adversarial” and plagued by “conflict, inaction, and dysfunction.”

D. The Belongia Letter

In November 2011, Jordon Ott resigned from the Research Foundation. She was a research administrator who reported directly to Belongia. She told Belongia that her frustration with Wesbrook was a “key factor” in her decision. Belongia then sent a letter to Ulrich identifying four broad categories of concern with Vidaillet’s and Wesbrook’s leadership of the Research Foundation. This letter became the basis for Wesbrook’s claim in this suit against Belongia.

Belongia wrote that several scientists and staff had expressed their frustration to him in confidence, while others had “already filed complaints with Human Resources regarding the Deputy Director.” In Belongia’s words, Wesbrook had also used “coercion and intimidation in his interactions with scientists and administrators.” Belongia said that he could “provide specific examples” and that other employees could “corroborate this and provide other examples.”

E. The Performance Improvement Plan, the Ulrich Chronology, and Wesbrook’s Termination

In the summer of 2011, Ulrich had directed the Clinic’s process improvement group to evaluate the time commitment associated with Vidaillet’s position as director of the Research Foundation. During the evaluation, several employees volunteered complaints about Wesbrook, including that he had created a hostile work environment and that employees feared retaliation if they voiced their concerns. The Clinic’s board of directors reviewed these findings at a September 6, 2011 meeting. At the end of that meeting, the board directed Vidaillet and Ulrich to develop jointly a- performance improvement plan for Wesbrook.

Following the board meeting, Ulrich coordinated with Pauline Pritzl, a human resources manager, to draft an improvement plan suitable for Wesbrook’s position. Ulrich and Pritzl presented the draft to Vidaillet, who disagreed with it and prepared his own version. At a November 10, 2011 meeting, Vidaillet distributed his proposed improvement plan to Ulrich and Pritzl. Ulrich said that only one plan would be implemented, but he told Pritzl to incorporate any relevant sections of Vidail-let’s proposal into the final draft. Pritzl did so, and Ulrich forwarded the integrated document to Wesbrook.

On December 8, 2011, Ulrich, Pritzl, Vi-daillet, and Wesbrook met to review the proposed improvement plan. During the meeting, Wesbrook handed out a memorandum in which he responded only to those concerns identified in Vidaillet’s version of the plan. Ulrich asked Pritzl, Keefe, and another human resources professional to review Wesbrook’s memorandum. Each agreed it was not an appropriate response. The next day, Ulrich told Wesbrook that he could either resign or face termination. Ulrich then placed Wesbrook on administrative leave pending board review.

On December 19, 2011, Ulrich drafted a nine-page “Chronology” outlining Wes-brook’s troubled history as deputy director, including his conduct during the performance improvement process. Ulrich sent the Clinic’s board of directors a copy of the Chronology and Belongia’s November 2011 letter. Ulrich also provided the board with a copy of a handwritten letter addressed to Vidaillet by Melvin Laird, a retired U.S. Representative from Wisconsin and U.S. Secretary of Defense, and a long-time supporter of the Marshfield Clinic. Laird’s letter referred to a conversation in which Vidaillet had said he thought he was about to be fired. Laird wrote back that he had spoken with “over forty individuals” associated with the Clinic. Based on his conversations, Laird concluded that the problem at the Research Foundation was not Vidaillet but was instead Wesbrook.

After reviewing these documents and other submissions, the Clinic’s board voted thirteen to two to support Ulrich’s decision, up to and including termination of Wesbrook’s employment. Ulrich then fired Wesbrook effective January 2,2012.

F. District Court Decision

In 2013, Wesbrook filed this suit accusing Ulrich, Belongia, and two other former colleagues of tortiously interfering with his employment. The district court allowed Wesbrook’s claims against Ulrich and Be-longia to proceed to discovery. Ulrich and Belongia later moved for summary judgment.

Wesbrook’s complaint had described the defendants’ “sustained campaign” to have him fired, with allegations of “numerous false and defamatory statements” and actions on “multiple occasions ... to interfere with [his] contract of employment.” By the summary judgment stage, Wes-brook’s ■ theoiy of the case had narrowed considerably. He focused on four allegedly false statements to the board of directors who had approved his firing: Belongia’s observations that Wesbrook “coerced” employees and that employees “filed” complaints against him; Ulrich’s description of the performance improvement process; and Laird’s reference to talking with at least forty Research Foundation affiliates.

The district court granted the defendants’ motion for summary judgment. Although the court acknowledged that Wes-brook’s “evidence of internal strife within the Clinic is strong, especially as it concerns Ulrich’s possible motives,” Wesbrook v. Ulrich, No. 13-cv-494-wmc, 2015 WL 7871063, at *9 (W.D. Wis. Dec. 3, 2015), the court found that the undisputed facts showed that, each of the challenged statements was true or at least substantially true. Ulrich’s motives were therefore immaterial.

II. Analysis

A. The Law of Tortious Interference

Under Wisconsin law, a claim for tortious interference with a contract requires proof of five elements: “(1) the plaintiff had a contract or a prospective contractual relationship with a third party, (2) the defendant interfered with that relationship, (3) the interference by the defendant was intentional, (4) there was a causal connection between the interference and damages, and (5) the defendant was not justified or privileged to interfere.” Briesemeister v. Lehner, 295 Wis.2d 429, 720 N.W.2d 531, 542 (Wis. App. 2006). The parties dispute here the fifth element, whether the defendants’ challenged statements were privileged.

Generally speaking, whether conduct is privileged from tort liability is a fact-sensitive question that takes into account the “nature, type, duration and timing of the conduct, whether the interference is driven by an improper motive or self-interest, and whether the conduct, even though intentional, was fair and reasonable under the circumstances.” Id. at 543; see also Restatement (Second) of Torts § 767 (Am, Law Inst. 1979) (listing seven factors). For instance, the “common interest” conditional privilege, which offers some protection for false statements in the workplace, may be forfeited “if the defendant acted from ill will or an improper motive towards the plaintiff.” Wolf v. F & M Banks, 193 Wis.2d 439, 534 N.W.2d 877, 885 (Wis. App. 1995).

Wisconsin law recognizes an important exception to the ordinary multifactor inquiry about privilege. If a claim for tor-tious interference is based on statements that are true, the claim must fail as a matter of law. The Wisconsin Court of Appeals observed in Mackenzie v. Miller Brewing Co. that the “‘transmission of truthful information is privileged, does not constitute improper interference with a contract, and cannot subject one to liability for tortious interference with a contract’ or prospective contract.” 234 Wis.2d 1, 608 N.W.2d 331, 349 (Wis. App. 2000), aff'd, 241 Wis.2d 700, 623 N.W.2d 739 (2001), quoting Liebe v. City Finance Co., 98 Wis.2d 10, 295 N.W.2d 16, 18 (Wis. App. 1980). Likewise, the drafters of the Restatement included section 772 as a “special application of the- general test” outlined in section 767: “There is of course no liability for interference with á contract ... on the part of one who merely gives truthful information to another.” Restatement (Second) of Torts § 772 cmts. a, b (Am. Law Inst. 1979). Thus, while a defendant’s motive is often relevant in deciding whether she tortiously interfered with a plaintiffs contract, motive is irrelevant when the defendant spoke the truth,

Further, a statement may be substantially true—and thus privileged—even if some fine splitting of semantic hairs might leave room to argue about its literal truth. See Terry v. Journal Broadcast Corp., 351 Wis.2d 479, 840 N.W.2d 255, 264 (Wis. App. 2013). The Terry court explained: “It is not ‘necessary that the ... statement in question be true in every particular. All that is required is that the statement be substantially true.’ ” Id., quoting Lathan v. Journal Co., 30 Wis.2d 146, 140 N.W.2d 417, 423 (1966).

Terry and Lathan were defamation cases. We are aware of-no precedential Wisconsin decisions that have explicitly extended substantial truthfulness as a defense to tortious interference. We see no principled reason, though, why the defense would not apply with equal force in this context. In the absence of contrary authority, we predict that the. Wisconsin Supreme Court would apply it. See Todd v. Societe Bio, S.A., 21 F.3d 1402, 1412 (7th Cir. 1994) (“Our task in a diversity case is to predict what the state’s highest court would do if presented, with the same issue.”).

B. The Defendants’ Truthful Statements

Plaintiff Wesbrook’s claims against defendants- Ulrich and Belongia turn on the answer to one question: were the defendants’ statements true or at least substantially true? The undisputed facts show that they were. Wesbrook bases his tortious interference theory on four statements that Ulrich published to the Clinic’s board of directors: (1) Belongia’s statement that Wesbrook used coercion in his interactions with other employees; (2) Belongia’s statement that employees filed complaints against Wesbrook; (3) Ulrich’s description of the performance improvement plan; and (4) Laird’s statement that he spoke with over forty people. Wesbrook’s quarrel with the first two statements involves semantic hairsplitting. His claim about the performance improvement plan misconstrues what Ulrich actually said. And his criticism of Laird’s letter is both unsupported by the record and immaterial.

1. Coercion

Wesbrook complains about Belon-gia’s assertion that Wesbrook “used eoer-cion and intimidation in his interactions with scientists and administrators.” Not so, Wesbrook protests. While conceding that he may have intimidated his coworkers, he claims he never coerced them. Coercion, Wesbrook argues, “entails overt acts,” whereas “any individual may be unintentionally intimidated by another’s personality, size, knowledge or skill.” Wesbrook points to Belongia’s 2015 deposition testimony acknowledging that he had not personally been “coerced” by Wesbrook and could not recall a specific example of an individual who had experienced such “coercion.”

The district court pointed out correctly that the terms “coercion” and “intimidation” are often used interchangeably. For instance, the American Heritage Dictionary of the English Language (fifth edition) defines “coerce” as to “pressure, intimidate, or force (someone) into doing something.” Likewise, Webster’s Third New International Dictionary of the English Language defines “coerce” as to “restrain, control, or dominate, nullifying individual will or desire (as by force, power, violence, or intimidation).”

The undisputed facts show that some of Wesbrook’s colleagues found him overbearing. As David Keefe in human resources reported, former colleagues described Wesbrook’s management style as, among other things, cold, militaristic, confrontational, and contentious. One scientist described Wesbrook as “intimidating and vindictive,”' while another left her position due in part to the “hostile treatment” she had received from Wesbrook. A veteran clinician recounted complaints from employees who “feared retribution if they said anything that was contrary” to Wes-brook. It is undisputed that Ulrich, Belon-gia, and the Clinic’s board of directors had received this information. It strains credulity beyond the breaking point to suppose that the board would have been unmoved by these reports of Wesbrook’s bullying and retaliation but was finally spurred to action by a reference to “coercion.” We will not split hairs so finely. Tort law does not demand such artificial precision in ordinary use of language. Belongia’s statement that Wesbrook used “coercion and intimidation” was at least substantially true, so the statement was privileged as a matter of law.

2. “Filed” Complaints

Wesbrook next takes issue with Belongia’s assertion that some Research Foundation scientists and staff had “already filed- complaints with Human Resources regarding the Deputy Director.” Wesbrook contends this statement was false because no formal written complaints were actually “filed.” In his deposition, Belongia admitted that he had “intended to say” that employees had “complained to human resources” and that in retrospect the word “filed” was “probably not the optimal word to use.” Wesbrook contends that “filing” a complaint necessarily “connotes starting a formal investigative process ... which could lead to some type of sanction against the administrator or formal intervention on behalf of the aggrieved employee.” Conversely, “complaining”—according to Wesbrook—is “akin to griping, blowing off steam, taking advantage of a sounding board, or requesting advice about how to deal with an issue.”

Wesbrook offers no authority, linguistic or otherwise, suggesting that tort liability should depend on his proposed distinction between “complaining” to human resources and “filing” a complaint with human resources. The distinction is unpersuasive, particularly on this record. Undisputed evidence shows that employees of the Research Foundation were not simply “griping” to one another about Wesbrook. They met with supervisors and human resources personnel to express their concerns and, presumably, to seek some kind of resolution. Many had even chosen to resign to get away from Wesbrook.

The undisputed facts show that Belongia was aware of growing dissatisfaction with Wesbrook’s leadership. His own research administrator, Jordon Ott, was among those who departed during the final months of Wesbrook’s tenure. By writing that some employees had “already filed complaints with Human Resources,” Be-longia accurately reflected the circumstances at the Research Foundation as of November 2011. Belongia’s statement was at'least substantially true, so it was privileged'as a matter of law.

3. Performance Improvement Plan

Wesbrook complains next about Ulrich’s description in his Chronology of the performance improvement process. According to Wesbrook, Ulrich falsely “al-leg[ed] that Wesbrook had failed to comply with a performance improvement plan.” This contention, is a straw man. Ulrich made no such assertion.

In his Chronology, Ulrich acknowledged the decision by the Clinic’s board of directors that he and Vidaillet should jointly develop an improvement plan for Wes-brook. Ulrich described meeting with Vi-daillet and with Pauline Pritzl in human resources to work on the plan. Ulrich noted that Vidaillet prepared his own draft and that Ulrich instructed Pritzl to incorporate relevant portions of that draft into the final document. Ulrich also,described the November 15, 2011 meeting with Wes-brook, in which Ulrich told Wesbrook that there was only one improvement plan and “that was the one that [Ulrich] had provided.” Finally, Ulrich recounted the December 8, 2011 meeting at which Wesbrook circulated his response to the improvement plan and the later meeting in which Ulrich gave Wesbrook the ultimatum to resign or be' fired.

At no point in the Chronology did Ulrich assert that Wesbrook failed to comply with his performance improvement plan. Rather, it was Wesbrook’s deficient response to the proposed plan that triggered his termination. The Clime’s board of directors had instructed Ulrich and Vidaillet to prepare a joint document, and according to Vidail-let, the board had ordered that the “plan be brought back ... for approval.” That never happened. Instead, at an October 11, 2011 meeting, the board decided that the “question of Wesbrook’s performance improvement plan would be part of the Board’s scheduled March 2012 evaluation of [Vidaillet].” The board could not have harbored any doubt about the status of Wesbrook’s compliance with a performance improvement plan that it had never approved.

Ulrich’s account of the performance improvement process was truthful and thus privileged as a matter of law. In addition, Wesbrook’s hypothetical non-compliance with an improvement plan that the Clinic’s board had never adopted could not have caused his termination and so cannot serve as the basis for a tortious interference claim. See Briesemeister, 720 N.W.2d at 542 (one element of a tortious interference claim is “a causal connection between, the interference and damages”).

4. Laird Letter

Finally, Wesbrook contends that Ulrich gave the Laird letter to the Clinic’s board of directors without properly verifying its contents. Wésbrook asserts that Laird had “at best a tenuous grasp on the circumstances regarding Wesbrook’s and Vidaillet’s conflict with Ulrich and Belon-gia,” and Wesbrook faults Laird for saying that he spoke with at least forty Research Foundation affiliates, a statement Wes-brook deems “incorrect.”

In his deposition testimony, however, Laird insisted that his letter was “factually correct.” Laird testified that he- may have spoken with “a hundred” people, and he reiterated that while his reference to forty people was an estimate, he probably spoke with more than forty people. To rebut Laird’s testimony and present a genuine issue of material fact, Wesbrook has offered no evidence, nothing more than raw speculation. In any event, we do not understand how the number of people Laird contacted could support Wesbrook’s theory of tortious interference. Wesbrook has no evidence to dispute the salient point, which is that a substantial number of Research Foundation affiliates told Laird that their problem was not with Vidaillet but with Wesbrook,

We need not belabor the point. Wes-brook has failed to offer any evidence that any material statement in the Laird letter is untrue. The letter is therefore privileged as a matter of law.

C. The Preston Decision

Because the statements on which Wes-brook bases his claims against Ulrich and Belongia were each true or substantially true, we agree with the district court that no reasonable jury could find tortious interference on this record. Wesbrook’s argument to-the contrary gains no additional traction by his attack on Preston v. Wis consin Health Fund, 397 F.3d 539 (7th Cir. 2005), in which we addressed Wisconsin’s law of tortious interference in the context of employment. For the sake of completeness, we address Wesbrook’s Preston argument, which highlights the larger stakes here.

In Preston, the former director of a dental clinic brought a tortious interference claim against the CEO and another dentist claiming that the CEO’s decision to fire him had been tainted by an improper motive. Id. at 540-41. (The CEO had replaced Preston with the other dentist, with whom the CEO allegedly had a romantic relationship.) In affirming summary judgment for the defendants, we explained that an employee who alleges tortious interference by a co-worker or supervisor must prove' “both that the employer did not benefit from the defendant’s act ánd that the act was independently tortious, for example as fraud or defamation.” Id, at 544. Wesbrook challenges that two-prong test. He contends that Preston improperly modified the elements of a tortious interference claim under Wisconsin law,, and he urges us to overrule Preston. For two reasons, we decline.

First, the Wisconsin judiciary has given no indication that it disagrees with Preston. In nearly twelve years since Preston was decided, no Wisconsin court has disapproved or even distinguished it. We do not lightly overturn circuit precedent, and we give “considerable weight to prior decisions of this court unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening developments.” Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006) (citation omitted), aff'd, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). The state courts are quite capable of signaling when they disagree with a federal court’s interpretation of state law. See, e.g., United National Ins. Co. v. De-Prizio, 705 N.E.2d 455 (Ind. 1999) (disagreeing with Seventh Circuit prediction of Indiana law on whether umbrella liability coverage limits applied to under-insured motorist coverage); Morris B. Chapman & Assocs., Ltd. v. Kitzman, 193 Ill.2d 560, 251 Ill.Dec. 141, 739 N.E.2d 1263, 1272 (2000) (disagreeing with Seventh Circuit prediction that Illinois common fund doctrine applies only in class actions and insurance subrogation cases). Absent signals from the state courts or other developments that call into question an earlier Erie Railroad prediction, the principle of stare decisis controls. See Midlock v. Apple Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005) (discussing the principle).

Second, we think Preston was decided correctly. If Preston had allowed the plaintiffs tortious interference claims to proceed to trial, it would have opened a rather broad avenue under tort law to bypass well-established limits on contract remedies for at-will employees. Fired at-will employees who have no remedy under contract law would have an incentive to sue not their employers for breach of contract but their former co-workers and supervisors in tort. Under Wesbrook’s theory, a fired at-will employee would be entitled to a jury trial if there were evidence of ill will or malice on the part of a former coworker or supervisor who participated in a firing decision. Such evidence would not be rare. Such a new avenue under tort law would likely “transform employment at will into employment terminable only for cause,” Preston, 397 F.3d at 543, as the threat of personal liability in a lawsuit could easily discourage supervisors from taking adverse employment actions.

In Wisconsin and elsewhere, there is a “strong presumption that an employee contract is at will unless the terms of the contract state otherwise.” Heinritz v. Lawrence University, 194 Wis.2d 606, 535 N.W.2d 81, 83 (Wis. App. 1995). While the policy choices reflected in the doctrine of at-will employment are open to debate, the choice of those policies is a matter of state law to be decided by state legislatures and courts. We see no sign that Wisconsin would be inclined to open this tort detour around roadblocks of contract law in cases like this.

The district court correctly entered summary judgment for the defendants. The judgment of the district court is AFFIRMED.

      . As a third example of his conflict with Ul-rich, Wesbrook points to his and Vidaillet’s efforts in the fall of 2011 to persuade the Clinic's board of directors to investigate possible Medicare fraud in relation to a contract that Ulrich had executed. The board declined to undertake the investigation. While Wes-brook refers to himself in this lawsuit as a "whistle-blower,” there is no indication that he took his concerns outside the Clinic organization. Nevertheless, Wesbrook argues that Ulrich had it out for him after he "assisted in bring[ing] possible violations of law to the Board's attention.” We are not so convinced. As the district court noted, "Wesbrook fails to tie this event to any alleged motive on the part of Ulrich to seek his termination. Specifically, Wesbrook fails to point to evidence that Ul-rich opposed the investigation.” Wesbrook v. Ulrich, No. 13-cv-494-wmc, 2015 WL 7871063, at *3 n.6 (W.D. Wis. Dec. 3, 2015). This appeal presents no issue concerning the legal rights of genuine whistleblowers.

      . One non-precedential opinion did so. See Park Towne Dev. Corp. v. Gotta Madison Assocs., 337 N.W.2d 856, 1983 WL 161457, at *3 (Wis. App. 1983) (" '[T]he transmission of truthful information is privileged ... and cannot subject one to liability for tortious interference with a contract.’ Substantial truth is all that is required.”) (citations omitted).

      . In paragraph 94 of his own proposed findings of fact, Wesbrook himself used the term “coerce" in the same way, without referring to threats of physical force. He described one of Ulrich’s shareholder communications as a “ploy to coerce the shareholders into approving [his] reorganization plan.”

      . We know of only one non-precedential Wisconsin opinion that has even mentioned Preston: Westphal v. Smelser, 756 N.W.2d 809, 2008 WL 2609698, at *6 (Wis. App. 2008) (citing Preston for the unremarkable proposition that employment at will qualifies as a contractual relationship). Also, if Wesbrook believed that Wisconsin courts might disapprove Preston if squarely presented with the question, he could have filed his complaint in state court. If he had done so, the defendants could not have removed the case to federal court because three of them were Wisconsin citizens when the suit was filed. See 28 U.S.C, § 1441(b)(2). Cf. Stamp v. Insurance Co. of North America, 908 F.2d 1375, 1379 (7th Cir. 1990) ("We are not sympathetic to plaintiffs who opt for a federal forum, lose, and then want a second opinion from a state court.”).


author: POSNER, Circuit Judge. MANION, Circuit Judge,

text:
    Kevin W. CULP, et al., Plaintiffs-Appellants, v. Lisa MADIGAN, in her official capacity as Attorney General of Illinois, et al., Defendants-Appellees.
    No. 15-3738
    United States Court of Appeals, Seventh Circuit.
    Argued September 22, 2016
    Decided October 20, 2016

      David G. Sígale, Attorney, Glen Ellyn, IL, for Plaintiffs-Appellants.
    Brett E. Legner, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.
    Before BAUER, POSNER, and MANION, Circuit Judges.
   POSNER, Circuit Judge.

Illinois’ Concealed Carry Act, 430 ILCS 66/1 et seq., authorizes an Illinois resident to carry, on his person or next to him in a car, a loaded or unloaded firearm as long as it is fully or partially concealed and he (or she) meets the qualifications set forth in the Act. We held in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), that the Second Amendment entitles qualified persons to carry guns outside the home; just a few months ago we said that “the constitutional right to ‘keep and bear’ arms means that states must permit law-abiding and mentally healthy persons to carry loaded weapons in public.” Berron v. Illinois Concealed Carry Licensing Review Bd., 825 F.3d 843, 845 (2016). But “qualified,” “law-abiding,” and “mentally healthy” are significant limitations on the right of concealed carry..

The qualifications in the Act are numerous but to decide this case we need consider only a few of them: that the applicant for a concealed-carry license not present a clear and present danger to himself or others or a threat to public safety and not in the last five years have been a patient in a mental hospital, or been convicted of a misdemeanor involving the use or threat of physical force or violence, or been in a residential or court-ordered drug or alcohol treatment program, or have committed two or more violations involving driving under the influence of drugs or alcohol, or be subject to a legal proceeding that could lead to being disqualified to possess a gun. 430 ILCS 66/25, 65/4(a)(2)(iv).

In compliance with Moore v. Madigan, supra, Illinois has authorized residents of Illinois who meet the criteria listed above to obtain concealed-carry licenses. But what about a nonresident of Illinois? Can he or she obtain a right to carry a concealed firearm in Illinois? Yes, but only if he resides in a state or territory that has “laws related to firearm ownership, possession, and carrying, that are substantially similar to the requirements to obtain” an Illinois concealed-carry license, and submits a notarized statement confirming that he is eligible under both federal law and the laws of his home state to own a gun and licensed by that state to carry a gun. 430 ILCS 66/40(b), 66/40(c)(2). A state’s gun laws are deemed “substantially similar” to Illinois’ if the state does the following four things:

1. “regulates who may carry firearms, concealed or otherwise, in public;”
2. “prohibits all who have involuntary mental health admissions, and those ' with voluntary admissions within the past 5 years, from carrying firearms, concealed or otherwise, in public;”
3. “reports denied persons to NICS [National Instant Criminal Background Check System];” and
4. “participates in reporting persons authorized to carry firearms, concealed or otherwise, in public through NLETs [National Law En.forcement Telecommunications Sys- , tern].”

20 Ill. Admin. Code 1231.10. As we’ll see, these four requirements are not imposed in order to punish nonresidents because of where they live or because Illinois disapproves of other states’ gun regimes. The sole purpose is to protect Illinois residents. The Illinois State Police determines which states make the cut by conducting a fifty-state survey and posting the results on its website. 20 Ill. Admin. Code 1231.110(b), (c). Currently only Hawaii, New Mexico, South Carolina, and Virginia qualify as “substantially similar” in the relevant respects to Illinois. Illinois State Police Firearm Services Bureau, “Frequently Asked Questions: How can I find out if my state’s laws are , considered ‘substantially similar?,’ ” www.ispfsb.com/Public/Faq.aspx (visited Oct. 19, 2016).

Illinois recognizes .certain exceptions for citizens of not “substantially similar” states. A person who has a firearm license from his own state is allowed to carry a firearm in Illinois while hunting or at a firing range or on property whose owner permits him to carry .a gun, 430 ILCS 65/2(a), (b), and if he has a concealed-carry license from his state he can transport a firearm in his car or other vehicle in Illinois as long as he doesn’t remove it from the vehicle. 430 ILCS 66/40(e).

The plaintiffs in this case, nonresidents of Illinois each of whom has a concealed-carry license from his home state, travel to Illinois whether on business or for family or other reasons and want, while they are in Illinois, to be allowed to carry a firearm even if they are not within the exceptions to the restrictions on nonresident gun carrying just listed, but are not allowed to do so because they aren’t residents of states that have firearm laws substantially similar to Illinois’. They argue that Illinois’ refusal to issue concealed-carry licenses to them violates Article IV of, and the Second and Fourteenth Amendments to, the Constitution. The district judge declined to issue a preliminary injunction, precipitating this appeal.

The plaintiffs’ claim to be allowed to carry concealed firearms when they are visiting Illinois would be compelling if the Illinois authorities could reliably determine whether in fact a nonresident applicant for an Illinois concealed-carry license had all the qualifications that Illinois, or states that have concealed-carry laws substantially similar to Illinois, require be met. But while the Illinois state police have ready access to information about Illinois residents (mainly about whether the applicant for a concealed-carry license .has a criminal history or a history of mental illness) that is necessary to determine whether an applicant is eligible to obtain such a license, they lack reliable access to the information they need about- the qualifications of nonresident applicants other than residents of the four “substantially similar” states.

An uncontradicted affidavit from Jessica Trame, the chief of the Illinois Firearms Services Bureau, lists information sources that the Bureau relies on in determining whether an applicant for a concealed-carry license is eligible. They include records of drivers’ licenses and a computerized criminal history records system. There is also the federal database of criminal histories mentioned earlier (NLETS) that the police can access, but it is incomplete because many states submit incomplete information on their arrest and prosecution records to the database. And while the Illinois Bureau can request information from local jurisdictions (cities, counties, etc.) in other states, those jurisdictions charge for the information; and the Bureau claims without contradiction that it lacks the funds required to pay the charges (Illinois state agencies are notoriously underfunded). The Bureau has for example encountered significant difficulties in its efforts to obtain mental health information about residents of other states; many of those states don’t track such information.

But it’s not just the initial application process that has Illinois concerned. Illinois needs reliable information in order to be able to monitor the holders of gun permits, which are good for five years. 430 ILCS 66/50, 66/35. So after issuing a concealed carry license Illinois checks its own databases daily and national ones quarterly for updates that might require a license to be revoked. But it is unable to obtain updates from states that don’t track or report the information. This practical need explains all four of the requirements for “substantially similar” gun laws listed above.

All this said, the plaintiffs do make some apt criticisms of the Illinois law. They point out for example that the concealed-carry license of an Illinois resident is not revoked or reassessed if he returns from a trip to, or a sojourn in, another state, even though the Illinois authorities will not know what he did in that state—whether for example he committed a crime or had a mental breakdown. And anyone who lives in Illinois or one of the four substantially similar states is eligible to obtain an Illinois concealed-carry license even if he had become a resident of such a state recently, having spent many years living in dissimilar and therefore non-approved states, with Illinois (and, presumably, the substantially similar state as well) unable to obtain information about his possible criminal or mental problems in those states.

So the Illinois law regulating the concealed-carry rights of nonresidents is imperfect. But we cannot say that it is unreasonable, so imperfect as to justify'the issuance of a preliminary injunction. Cf. Moore v. Madigan, supra, at 940. The critical problem presented by the plaintiffs’ demand—for which they offer no solution—-is verification. A nonresident’s application for an Illinois 'concealed-carry license cannot be taken at face value. The assertions in it must' be verified. And Illinois needs to receive reliable updates in order to confirm that license-holders remain qualified during the five-year term of the license. Yet its ability to verify is extremely limited unless the nonresident lives in one of the four states that have concealed-carry laws similar to Illinois’ law.' A trial in this case may cast the facts in a different light, but the plaintiffs have not made a case for a preliminary injunction.

Affirmed

MANION, Circuit Judge,

dissenting.

Just four years ago, this court invalidated Illinois’ decades-old blanket ban on the carrying' of firearms in public. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). We recognized that .the Second Amendment requires states to “permit law-abiding and mentally healthy persons to carry loaded weapons in public.” Berron v. Ill. Concealed Carry Licensing Review Bd., 825 F.3d 843, 845 (7th Cir. 2016). It was only in response to our decision in Moore that Illinois finally became the last state in the nation to enact a concealed-carry law.

Although Illinois now reluctantly allows its residents to carry concealed weapons with a license, it still significantly restricts the rights of nonresidents to do so. State law prevents the residents- of 45 states from even applying for an Illinois concealed-carry license because the Department of State Police has not classified their states’ public-carry qualifications as “substantially similar” to those Illinois imposes. These nonresidents, including the plaintiffs in this case, have no opportunity to prove that they meet Illinois’ requirements. Based solely on their states of residence, they are deprived of any opportunity to exercise their Second Amendment rights in Illinois.

When a state law infringes on the fundamental Sepond Amendment right to keep and bear arms for self-defense, it must satisfy heightened scrutiny-. Our precedents instruct that to sustain such a law, a state must present “an extremely strong public-interest justification and a close fit between the government’s means and its end.” Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011). Illinois has not done so here. As explained below, the state’s chosen method to regulate nonresident concealed-carry license applications is not sufficiently tailored to its goal of properly vetting out-of-state applicants’ criminal and mental histories. Therefore, the ban violates the Second Amendment.

Nevertheless, the court holds that the plaintiffs are not entitled to preliminary relief because the application ban is not “unreasonable.” The court’s application of rational-basis review to the nonresident application ban is directly contrary to Supreme Court and Seventh Circuit precedent. Under the proper standard of review, the plaintiffs are certain to succeed on the merits of their Second Amendment claim. I would reverse the district court’s judgment and remand with instructions to issue a preliminary injunction. I respectfully dissent.

I. Background

Illinois law requires the Department of State Police to issue a concealed-carry license to each Illinois resident who applies and meets certain qualifications. 430 ILCS 66/25. The Department must also issue a license to some nonresidents who meet all of these qualifications other than Illinois residency. 430 ILCS 66/40(b). Under the statute, the Department may only process applications from residents of states “with laws related to firearm ownership, possession, and carrying, that are substantially similar to the requirements to obtain a license under [Illinois law].” Id. The definition of “substantially similar” is left to the Department’s discretion.

Department regulations define “substantially similar” states as those that do all of the following: (1) regulate who may carry firearms in public; (2) prohibit all who have had involuntary mental health admissions, and those who have had voluntary admissions in the past five years, from carrying firearms; (3) report denied persons to the National Instant Criminal Background Check System; and (4) participate in reporting those authorized to carry through the National Law Enforcement Telecommunications System. Ill. Admin. Code 1231.10. . The Department periodically sends a survey to each state to determine whether it meets these criteria. At present, the Department has identified only Hawaii, New Mexico, Virginia, and South Carolina as “substantially similar” states. The law therefore operates as a total ban on concealed-carry license applications from residents of the other 45 states.

The individual plaintiffs are law-abiding nonresidents who hold concealed-carry licenses in their resident states. Some are even certified Illinois concealed-carry instructors. They wish to apply to carry firearms in Illinois. The plaintiffs contend that the ban on applications from their states violates the Second Amendment, the Equal Protection Clause, the Due Process Clause, and the Privileges and Immunities Clause of Article IV. The district court denied their motion for a preliminary injunction, and the plaintiffs timely appealed.

II. Discussion

A. Preliminary Injunction Standard

To determine whether the plaintiffs are entitled to preliminary relief, this court applies a two-part “sliding scale” test. As a threshold matter, the movants must establish (1) some probability of success on the merits; (2) lack of an adequate remedy at law; and (3) irreparable harm in the absence of an injunction. Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012). If they clear that hurdle, the district court then must balance the harms that both parties would suffer in the event of an adverse decision. In this analysis, it must consider the public interest in granting or denying an injunction and weigh the threshold factors against each other, depending on how strongly each factor points in favor of each party. See id. We generally review the district court’s legal analysis de novo and its balancing of the factors for abuse of discretion. Id. However, “a decision to deny a preliminary injunction that is premised on an error of law is entitled to no deference and must be reversed.” United Air Lines, Inc. v. Int’l Ass’n of Machinist & Aerospace Workers, AFL-CIO, 243 F.3d 349, 361 (7th Cir. 2001).

B. Likelihood of Success on the Merits

At this stage, the principal issue is whether the plaintiffs are likely to succeed on the merits of their Second Amendment claim. The “sliding-scale” nature of the preliminary injunction inquiry means that the plaintiffs’ precise chances of success are highly relevant to whether an injunction should issue. A movant with just a slight chance of success must make a much greater showing of harm than one who is certain to prevail. See Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994).

As with any constitutional case, the strength of the plaintiffs’ Second Amendment claim depends upon, two things: (1) which standard of means-ends scrutiny applies to the claim; and (2) whether the evidence is sufficient to sustain the challenged law under the chosen scrutiny. I will address these in turn.

1. Proper Standard of Review

The Supreme Court has recognized that “the Second Amendment secures a preexisting natural right to keep- and bear arms.” Ezell, 651 F.3d at 700 (citing District of Columbia v. Heller, 554 U.S. 570, 595, 599-600, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)). “[individual self-defense is ‘the central component’ of the Second Amendment right,” which is fundamental and therefore enforceable against the states. McDonald v. City of Chicago, 561 U.S. 742, 767-68, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (quoting Heller, 554 U.S. at 599, 128 S.Ct. 2783). We have held that the right to bear arms for self-defense “is as important outside the home as inside.” Moore, 702 F.3d at 942. Illinois recognizes that holding and correctly concedes that the nonresident application ban implicates the Second Amendment. The dispute centers on the proper standard of review.

In Heller, the Supreme Court did not resolve this question for all future Second Amendment claims. However, it made it abundantly clear that rational-basis review is inappropriate where a law affects Second Amendment rights. Heller, 554 U.S. at 628-29 & n.27, 128 S.Ct. 2783 (“If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect,”). Because of Heller and McDonald, this court is by default “left to choose an appropriate standard of review from among the heightened standards of scrutiny the [Supreme] Court applies to governmental actions alleged to infringe enumerated constitutional rights.” Ezell, 651 F.3d at 703.

Our precedents instruct that this critical choice should depend oh two factors: “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” Id. Since Heller rules out rational-basis review, we must apply either intermediate scrutiny, strict scrutiny, or another form of heightened scrutiny in between those standards. Intermediate scrutiny generally requires the government to show that the challenged law is “substantially related to an important government objective” United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc), while under strict scrutiny the government must prove that the law is “necessary to serve a compelling state interest” and “narrowly tailored to achieve that interest.” Milwaukee Deputy Sheriffs’ Ass’n v. Clarke, 588 F.3d 523, 530 (7th Cir. 2009).

Three recent Second Amendment cases are particularly relevant to the standard of review question. First, in Slcoien, wé considered the constitutionality of the federal ban on the possession of firearms by those convicted of misdemeanor domestic violence. There, rather than enter “deeply into the ‘levels of scrutiny’ quagmire,” the en banc court simply accepted the government’s concession that intermediate scrutiny applied to the ban. Id. at 641-42. It held that “logic and data establish a substantial relationship” between the statute and the goal of “pi’eventing armed mayhem.” Id. at 642.

In Ezell, the plaintiffs sought a preliminary injunction against Chicago’s ban on firing ranges. We described the firing-range ban as “a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful- exercise of the core right to possess firearms for self-defense.” Ezell, 651 F.3d at 708. Critically, unlike the criminal defendant in Skoien, the Ezell plaintiffs were “the ‘law-abiding, responsible citizens’ whose Second Amendment rights are entitled to full solicitude under Heller.” Id. Because Chicago’s law reached close to the core of the Second Amendment and curtailed the rights of law-abiding citizens, we required “a more rigorous showing than that applied in Skoien ... if not quite ‘strict scrutiny.’ ” Id. Under this standard, the city had to demonstrate “a strong.public interest justification for its ban” and “a close fit between the range ban and the actual public interest it serves.” Id. at 708-09. Chicago failed to carry that burden, significantly because it could not show that its public safety interest could not be “addressed through sensible zoning and other appropriately tailored regulations.” Id. at 709.

Finally, we have Moore. In that case, we applied Ezell-like scrutiny to invalidate Illinois’ blanket ban on the public carrying of firearms. Moore, 702 F.3d at 940 (categorizing the level of scrutiny as “a stronger showing” than required in Skoien). We explained that, because the ban on concealed-carry curtailed “the gun rights of the entire law-abiding population of Illinois,” as opposed to a small group of people convicted of domestic violence, intermediate scrutiny was insufficient. Id. As we put- it then, “so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would.” Id. Like Chicago’s firing range ban, Illinois’ total prohibition on concealed-carry could not withstand such scrutiny. See id. at-939 (“If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.”).

' "These cases establish the basic principles that govern the present dispute. Whenever a law infringes on the right to bear arms for self-defense, that law must be at least substantially related to an important government interest. And a law that curtails the fundamental right of law-abiding citizens to carry a weapon for self-defense must pass even more exacting (although not quite strict) scrutiny. Defenders of such a law must show a “close fit” between the law and a strong public interest. Ezell, 651 F.3d at 708-09. That “close fit” is functionally equivalent to the “narrow tailoring” requirement for content-neutral speech restrictions to which strict scrutiny is inapplicable. See, e.g., McCullen v. Coakley, — U.S. -, 134 S.Ct. 2518, 2534, 189 L.Ed.2d 502 (2014); see also Ezell, 651 F.3d at 706-08 (discussing the adaptation of First Amendment precedent to, Second Amendment eases). As in First Amendment cases, the tailoring requirement prevents government from striking the wrong balance between efficiency and the exercise of an enumerated constitutional right. McCullen, 134 S.Ct. at 2534.

Just as in Ezell and Moore, the plaintiffs in this case are precisely the type of law-abiding citizens “whose Second Amendment rights are entitled to full solicitude under Heller.” Ezell, 651 F.3d at 708. What is more, the nonresident application ban functions as a categorical prohibition of applications from the majority of Americans. It is therefore a severe burden on the recognized Second Amendment right. Indeed, Illinois’ application ban has the potential to affect even more people than did the sweeping restrictions we. invalidated in Moore and Ezell. Therefore, it must satisfy the same exacting scrutiny that we applied in those cases.

In sum, “a ban as broad as Illinois’ can’t be upheld merely on the ground that it’s not irrational.” Moore, 702 F.3d at 939. The court’s cursory application of rational-basis review is directly contrary to Supreme Court and Seventh Circuit precedent. As a result, the court adds confusion to our case law and allows the states impermissible latitude to violate the Second Amendment rights of law-abiding Americans.

2. Application of Ezell Scrutiny

Having established the appropriate standard of review, I now turn to its application in this case. Illinois submits that the prohibition of so many nonresident applications is necessary because the state can properly vet only applicants from Illinois and the four Department-approved states. Illinois says that it cannot afford to pay to access information, such as applicants’ criminal records, from jurisdictions that do not report to the national databases Illinois uses to look up those records. Moreover, some states do not track mental health information at all. According to Illinois, it cannot obtain mental health records for potential applicants from many states and thus cannot evaluate whether applicants from these states are qualified under Illinois law to carry a firearm.

The plaintiffs do not challenge Illinois’ power to maintain a licensing scheme with some conditions on the right to carry a firearm in public. See Berron, 825 F.3d at 847. Nor do they challenge the conditions themselves. On the contrary, they want the opportunity to comply with those conditions. They seek the opportunity to be treated the same way Illinois treats its own residents and those of the four Department-approved states. The current statutory scheme deprives them of that opportunity.

Since the court erroneously subjects the application ban only to rationality review, it fails to answer the dispositive question. Namely, is the ban is sufficiently tailored to Illinois’ interest in vetting applicants to pass Ezell scrutiny? I would hold that it is not. The court seemingly admits that the law is significantly underinclusive (because it regulates too few people to be effective in addressing the stated goal) and overin-clusive (because it regulates too many people that do not fall under its public interest justification). These features, which the court concedes make the law “imperfect,” suffice to demonstrate that the required close fit between means and ends is lacking. Cf. Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 232, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) (holding that regulations fail narrow-tailoring analysis when they are both overinclusive and underin-clusive).

The nonresident application ban is significantly underinclusive in two principal ways. First, as the court correctly notes, “the concealed-carry license of an Illinois resident is not revoked or reassessed if he returns from a trip to ... another state, even though the Illinois authorities will not know what he did in that state—whether for example he committed a crime or had a mental breakdown.” Maj. Op. at 403. Second, a potential applicant who moves to one of the four approved states becomes immediately eligible to apply for an Illinois concealed-carry license. This is true “even if he had become a resident of such a state recently, having spent many years living in dissimilar and therefore non-approved states, with Illinois (and, presumably, the substantially similar state as well) unable to obtain information about his possible criminal or mental problems in those states.” Id. As broad as the application ban is, it does not allow Illinois to vet potential license-holders or future applicants in two quite plausible situations. This severely undercuts Illinois’ justification for maintaining it. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417-18, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (ban on news racks containing “commercial handbills” lacked the required “reasonable fit” between the government’s asserted end and the means chosen because it was woefully underinclusive).

The ban is also overinclusive. While a categorical application ban no doubt prevents many disqualified people from obtaining an Illinois concealed-carry license, it also prohibits many who would meet Illinois’ qualifications from' applying for a license. The plaintiffs in this case are ex-émplary. All are responsible gun owners with significant firearm training, no criminal or mental histories, and valid concealed-carry licenses from other states. Plaintiffs Kevin Culp, Douglas Zylstra, and Paul Heslin are Illinois-certified concealed-carry instructors who hold carry licenses in multiple states. A law that prevents an Illinois-licensed concealed-carry instructor from even applying for a license to carry in that state sweeps up far too many people to be appropriately tailored under any exacting standard of scrutiny.

Once more, it is important to emphasize that the plaintiffs seek only the right to apply for a concealed-carry license. Should they prevail, they would gain only the ability to seek a license on the same basis as residents of Illinois and the four Department-approved states. While such a process may impose an additional burden, Illinois has not shown that it would be impossible, or even impractical, for these .out-of-state applicants to provide verified records that satisfy Illinois’ requirements. For instance, nonresidents could attempt to shoulder the burden of paying for criminal record searches in their resident state and providing the relevant records to Illinois. Prospective applicants could also seek certification that they satisfy Illinois’ mental health requirement. In many cases, such certification would provide Illinois with more information than it can obtain about its own residents’ out-of-state sojourns, which they admittedly cannot track. Potential applicants should at least be given that chance.

In sum, the absolute denial of nonresidents’ right to apply for an Illinois concealed-carry license lacks the required close fit to the state’s asserted interest in properly vetting applicants. It is woefully overinclusive and underinclusive relative to that aim. Therefore, 430 ILCS 66/40(b) violates the plaintiffs’ Second Amendment rights.' I would hold that the plaintiffs aré certain to succeed on the merits.

C. Remaining Preliminary Injunction Factors

Because I would hold that the plaintiffs are certain to succeed, I must proceed'to the remaining preliminary injunction factors. In addition to demonstrating some probability 'of success on the merits, the plaintiffs must establish that they would be “irreparably harmed if [they do] not receive preliminary relief, and that money damages and/or an injunction ordered at final judgment would not rectify that harm.” Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 16 (7th Cir. 1992). The district court properly found that the plaintiffs satisfy all of the threshold requirements here. See Ezell, 651 F.3d at 697-99 (holding that irreparable harm is presumed in Second Amendment cases and that damages could not compensate for a violation). I need not belabor these points.

More critical is the district court’s balancing of the harms. Although the district court correctly concluded that the plaintiffs met all the threshold requirements for an injunction, it still denied their motion based on its conclusion that issuance of an injunction would harm the state more than a failure to issue one would harm the plaintiffs. The district court reasoned that the state would be harmed by its inability to conduct background checks on newly eligible applicants, while the plaintiffs could carry guns into Illinois for various other purposes and retained the right to concealed-carry in their resident states even in the absence of an injunction.

Because it was premised on an error of law, the district court’s balancing of the factors is due no deference. United Air Lines, 243 F.3d at 361. Since the district court erred by applying only intermediate scrutiny to the plaintiffs’ Second Amendment claim, it erroneously concluded that the plaintiffs’ claim was “neither strqng nor weak.” Had it applied the proper standard of review and held that the plaintiffs are certain to succeed, the district court would have required a much weaker showing of harm before it issued the injunction. Storck USA, 14 F.3d at 314 (“[T]he greater the movant’s chance of success on the merits, the less strong a showing must it make that the balance of harms is in its favor.”).

Given the plaintiffs’ certainty of success, I would hold that the balance of harms tips in their favor. Simply permitting law-abiding citizens who have concealed-carry licenses in other states' to apply for an Illinois license will not irreparably harm the state. Illinois may still deny those who do not meet its stringent criteria, so an injunction will not result in a flood of new concealed-carry license-holders. Meanwhile, the plaintiffs suffer irreparable harm each day they cannot avail themselves of Illinois’ concealed-carry licensing scheme. See Ezell, 651 F.3d at 699 (“If they’re right [on the merits], then the range ban was unconstitutional when enacted and violates their Second Amendment rights every day it remains' on the books.”). The fact that they can still possess firearms in other limited ways in Illinois and exercise the right to carry a firearm in their home states is irrelevant. Id. at 697-98. The application ban prevents them from taking the first step towards exercising their fundamental constitutional rights in Illinois.

III. Conclusion

Today’s decision will have a profound and unfortunate impact on the scope of Second Amendment rights in our circuit. The court’s decision has unnecessarily muddied the waters and cast significant doubt upon our holdings in Ezell and Moore. Rather than create confusion, we should reaffirm that state laws affecting the fundamental right to carry a firearm for self-defense are subject to exacting scrutiny. Under this standard, the plaintiffs are entitled to a preliminary injunction. I respectfully dissent.

      . The parties indicated at oral -argument that the record before us now is the same one that is before the district court for the pending summary judgment motion. Therefore, there is no need to hedge on the plaintiffs’ likelihood of success at this stage. The result will not change should this case return on appeal from the grant of the state’s motion for summary judgment. That is why I would hold that the plaintiffs are certain to succeed on the merits.

      . The Department sent the surveys that identified the four currently approved states in 2013. At that time, seven states did not respond at all to Illinois' survey. Illinois indicated at oral argument that it recently sent another survey and that the Department is currently analyzing the results. The list of approved states is subject to change based upon the results of this most recent survey.

      . Because I conclude that the plaintiffs’ Second Amendment claim is certain to succeed on the merits, I do not address their remaining constitutional challenges to the Illinois statute.

      . Moreover, Illinois law already permits nonresidents who hold firearm licenses from their resident states to possess a gun in various other ways in Illinois. See Maj. Op. at 402. The fact that Illinois trusts nonresidents to bring guns into the state to use on firing ‘ ranges or simply to carry in a vehicle undermines its policy rationale for restricting these same people from applying to carry a concealed weapon.

      . While I do not doubt the statute’s effectiveness at preventing these people from obtaining a license, whether it actually prevents gun violence is another matter altogether. In Moore, we properly recognized that "[t]he available data about permit holders ... imply that they are at fairly low risk of misusing guns, consistent with the relatively low arrest rates observed to date for permit holders.” Moore, 702 F.3d at 937-38 (quoting Philip J. Cook, et al., Gun Control After Heller: Threats and Sideshows from a Social Welfare Perspective, 56 UCLA L. Rev. 1041, 1082 (2009)). There is no indication that this is any less true for concealed-carry license holders in one state who wish to apply for a license in another state. To put it plainly, it is unlikely that someone wanting to commit a' gun crime in Illinois will first avail himself of the licensing process for out-of-state residents.

      .For example, there is no reason that Illinois cannot require nonresident applicants to submit their health records as proof that they have not been treated for a mental illness. The state could also require an affidavit from a treating physician certifying an applicant’s lack of mental admissions. This information would be far more valuable to Illinois than the simple fact that an applicant has a Hawaii concealed-carry license. After all, there is no guarantee that Hawaii was aware of its applicants’ mental health admissions in other states before granting licenses.