Susan Kuttner v. John Zaruba

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-3812

SUSAN A. KUTTNER,

Plaintiff-Appellant,

v.

JOHN ZARUBA, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 C 04290 — Edmond E. Chang, Judge.

____________________

ARGUED MAY 29, 2015 — DECIDED APRIL 14, 2016

____________________

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Susan Kuttner was fired from her job

as a DuPage County deputy sheriff after she wore her uni-

form and badge while trying to collect on a loan for a friend.

She sued the sheriff alleging that she was fired because of

her sex. There’s no direct evidence of sex discrimination, so

Kuttner’s lawyer embarked on a protracted fishing expedi-

tion in search of possible comparators to try to mount a case

2 No. 14-3812

under the rubric of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Using an overbroad understanding of

“similarly situated” employees, the lawyer sought the

personnel files of more than 30 employees of the DuPage

County Sheriff’s Office. In response to these and other

inappropriate discovery requests, the district judge stepped

in and imposed some limits. In the end Kuttner failed to

adduce evidence of sex discrimination, so the judge entered

summary judgment for the sheriff.

On appeal Kuttner argues that the judge unduly restrict-

ed discovery and improperly granted summary judgment.

We reject these arguments and affirm.

I. Background

Kuttner began working as a DuPage County deputy sher-

iff in 1998. In February 2010 she was fired by the Merit

Commission, a unit of the sheriff’s department that handles

hiring, promotions, and disciplinary matters. The Commis-

sion was acting on an October 2009 complaint by Sheriff

John Zaruba regarding an incident that occurred several

months earlier when Kuttner, while in uniform, paid a visit

to the home of a person who owed money to her boyfriend.

More specifically, Kuttner’s boyfriend Steve Cooper had

loaned a sum of money to one Reginald Benjamin. Benjamin

did not repay the loan. One afternoon in April or May 2009,

Kuttner—wearing her official sheriff’s uniform and badge—

visited Benjamin’s home in Hinsdale, Illinois, where he lived

with his parents. Benjamin’s father came to the door and told

Kuttner that his son was not home. Kuttner then left a

business card listing her name and a company called “Team

in Focus, DC International.”

No. 14-3812 3

Sheriff Zaruba alleged in his disciplinary complaint that

Kuttner’s conduct—attempting to collect on a personal loan

for a friend while in uniform—violated multiple depart-

mental regulations. In what amounted to a plea deal,

Kuttner stipulated to the facts we’ve just recounted and

admitted to violating two rules: one prohibiting “conduct

unbecoming” an officer and another prohibiting the improp-

er wearing of the uniform. In exchange the other disciplinary

charges were dropped. The Merit Commission determined

that Kuttner’s conduct was serious enough to warrant

discharge. She was fired on February 24, 2010.

Two weeks later Kuttner filed a complaint with the EEOC

alleging that the sheriff had discriminated against her on the

basis of her sex. After the agency declined action and gave

her permission to sue, she brought this lawsuit against

Sheriff Zaruba claiming sex discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2

et. seq. 1 The complaint alleged that Kuttner was fired and

denied a promotion because of her sex and that the sheriff’s

policies regarding jail staffing discriminated against female

employees. 2

1 Kuttner also named the “DuPage County Sheriff’s Offices” and DuPage

County as defendants. The former has no legal existence, and the County

is in the suit only by virtue of its duty to pay any judgment against

Sheriff Zaruba in his official capacity. We’ll refer to Sheriff Zaruba as the

sole defendant.

2 Kuttner also alleged that Sheriff Zaruba retaliated against her for

complaining about the jail-staffing policies and breached her employ-

ment contract by failing to give her sick-leave and adoption benefits after

she was fired. The district court dismissed these claims as baseless, and

Kuttner does not challenge those rulings.

4 No. 14-3812

Discovery did not go smoothly. Lacking any direct evi-

dence of discrimination, Kuttner’s attorney cast a very wide

discovery net in an effort to turn up male deputies who

faced similar misconduct charges but suffered less drastic

employment consequences. Among other things, Kuttner’s

lawyer sought the entire personnel files of more than

30 employees of the Sheriff’s Office—including, baselessly,

documents relating to Sheriff Zaruba’s wife. The sheriff

objected, and when the parties couldn’t resolve the dispute,

they sought the court’s assistance. Prompted by the judge,

Kuttner’s lawyer admitted that his request for documents

about the sheriff’s wife’s file was just “a fishing expedition.”

Following a hearing, the judge concluded that Kuttner’s

discovery requests were overly broad and unduly burden-

some because they lacked any time limitation and were

based on “an overbroad definition of ‘similarity’ of miscon-

duct.” The judge curtailed the scope of discoverable person-

nel documents to those arising after January 1, 2006, and

pertaining to employees who were alleged to have engaged

in “similar misconduct as [Kuttner] (abuse of authority) or

sufficiently serious misconduct.” In addition to issuing these

general limitations, the judge resolved some specific dis-

putes about the disclosure of personnel files of particular

employees.

Discovery proceeded for several months under these re-

strictions. More than three months later, however, Kuttner

moved for reconsideration. The judge was not impressed

with the belated motion, which came just a few weeks before

the deadline to complete discovery (already twice extended).

The judge reiterated his view that “[f]rom the start of dis-

covery, Plaintiff (actually, her counsel) has made overly

No. 14-3812 5

broad and unduly burdensome discovery requests, some of

which were unwarranted fishing expeditions bordering on

harassment.” As the judge saw it, Kuttner’s counsel was

again “over-reaching” and had shown “no solid factual basis

for believing” that relevant evidence would be uncovered if

the discovery restrictions were lifted. The judge declined to

revisit his earlier order.

It was not long before Kuttner’s lawyer again butted

heads with the judge—this time during the next-to-last

round of depositions. Deposing Deputy Tara Campbell,

Kuttner’s counsel asked the witness whether she had ever

heard or seen any deputy violate any Sheriff’s Office policy

or procedure. Predictably, this expansive inquiry drew an

objection, and a call to the judge’s chambers followed. The

judge had twice sustained objections to similarly overbroad

inquiries by Kuttner’s counsel earlier in this contentious

discovery process. The judge did so again and restricted the

inquiry to questions about the witness’s “personal

knowledge of abuse of authority committed by other depu-

ties (i.e., no more hearsay in the hope of leading to admissi-

ble evidence concerning abuse of authority).”

After discovery closed Sheriff Zaruba moved for sum-

mary judgment. Kuttner responded by proffering four male

comparators that she claimed had also abused their posi-

tions but were not fired. The judge rejected all four because

their misconduct was too dissimilar to make them suitable

for comparison under the McDonnell Douglas indirect meth-

od of proof. Kuttner offered no other evidence that she was

fired because of her sex, so the judge entered summary

judgment for the sheriff on this claim. The judge also reject-

ed Kuttner’s failure-to-promote claim because she had never

6 No. 14-3812

sought a promotion, nor had she alleged that a less qualified

male employee was promoted over her within the 300-day

limitations period. Finally, the judge concluded that material

factual disputes necessitated a trial on Kuttner’s claim about

the sheriff’s jail-staffing policies.

A different judge presided at trial. Sheriff Zaruba pre-

vailed.

II. Discussion

Kuttner apparently accepts the outcome of the trial; on

appeal she does not seek to revive her jail-staffing claim.

Rather, she challenges only the judge’s discovery limitations

and his summary-judgment rulings rejecting her claims that

she was fired and denied a promotion because of her sex.

A. Discovery Limitations

District judges have broad discretion over discovery mat-

ters, so we review discovery rulings deferentially, only for

abuse of discretion. Spitz v. Proven Winners N. Am., LLC,

759 F.3d 724, 733 (7th Cir. 2014). This standard requires us to

affirm unless the judge’s ruling lacks a basis in law or fact or

clearly appears to be arbitrary. e360 Insight, Inc. v. Spamhaus

Project, 658 F.3d 637, 644 (7th Cir. 2011). If we do find an

abuse of discretion, “we will not grant any relief ‘absent a

clear showing that the denial of discovery resulted in actual

and substantial prejudice.’” Id. (quoting Searls v. Glasser,

64 F.3d 1061, 1068 (7th Cir. 1995)).

Kuttner argues that the judge’s temporal limitation on

discovery—the January 1, 2006 outer boundary for personnel

records—was arbitrary. Any temporal limit on discovery is in

some sense artificial, and it’s true that the January 1, 2006

No. 14-3812 7

date isn’t keyed to any specific facts in the case. But our

abuse-of-discretion standard of review requires a deferential

and contextualized approach. To that end, the proper in-

quiry in this case is two-fold: (1) was some time limit war-

ranted here, and (2) was this time limit reasonable, i.e., did it

allow Kuttner a meaningful opportunity for discovery? The

answer to both questions is “yes.”

To the first question, the judge’s reason for imposing the

time limit was to rein in Kuttner’s “overly broad and unduly

burdensome” discovery expedition, perhaps exemplified

most starkly by the request for the personnel records of

Sheriff Zaruba’s wife, who could not possibly have served as

a legitimate comparator and was presumably targeted solely

for harassment and humiliation. The judge reasonably

concluded that this litigation conduct by Kuttner’s counsel

justified placing some limits on discovery so that it would

focus only on capturing information reasonably calculated to

lead to relevant evidence.

Recency is one component of relevance. Valid compara-

tors for a plaintiff proceeding under the McDonnell Douglas

indirect method of proof are “employees [who] dealt with

the same supervisor, were subject to the same standards, and

had engaged in similar conduct without such differentiating

or mitigating circumstances as would distinguish their

conduct or the employer’s treatment of them.” Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 617–18 (7th Cir. 2000).

Here, restricting the time period wasn’t just about preempt-

ing a fishing expedition; it also served to hone in on possible

comparators who were reasonably likely to have been

subject to the same rules, supervisors, and decision-making

process as Kuttner. Cf. Balderston v. Fairbanks Morse Engine

8 No. 14-3812

Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003) (affirm-

ing the district court’s restriction of discovery in an ADEA

case to only those employees who, inter alia, “obtained [their]

desired positions around the same time” as the particular

round of workforce reduction affecting the plaintiff).

We’re confident as well that the authorized window was

adequate for Kuttner to engage in meaningful discovery.

Kuttner doesn’t attack the judge’s original order limiting

discovery; rather, she takes aim at the denial of her reconsid-

eration motion. Recall that more than three months elapsed

between the original order and Kuttner’s reconsideration

motion. While this delay is not dispositive, there’s no ques-

tion that it threatened to impose a massive new burden on

the defendants with only a few weeks remaining until the

discovery cutoff. Indeed, the judge relied on the delay as one

reason for declining to reopen the matter. That was clearly a

valid consideration.

The judge also noted that the discovery deadline had al-

ready been extended several times, yet Kuttner had “fail[ed]

to advance the actually-authorized discovery so far.” Kuttner

can’t complain that she was hamstrung by the temporal

limitation when she didn’t make an adequate or appropriate

effort to exhaust the avenues that were left open to her

under the court’s earlier orders. 3

3 Our dissenting colleague faults us for relying in part on the burdens

created by Kuttner’s tardy reconsideration motion. See Dissent at p. 18.

As we’ve noted, however, Kuttner’s attorney waited three months before

asking the judge to reconsider the discovery limitations, and he filed his

reconsideration motion only a few weeks before the discovery deadline,

which had already been extended several times. It was not unreasonable

for the judge to take the delay into account and also to consider the

No. 14-3812 9

Finally, Kuttner points to the fact that the judge who pre-

sided at trial “allowed testimony and evidence on all mat-

ters, including those between 1998 and 2006.” But the issue

at trial was whether the sheriff’s policies governing jail

staffing were discriminatory. That claim rested on an entirely

different evidentiary basis than Kuttner’s claim that she was

fired because of her sex. The scope of the evidence at trial is

irrelevant here.

Kuttner also complains about the court’s directive prohib-

iting “any hearsay questions during depositions.” But this

mischaracterizes the judge’s ruling. During Deputy Camp-

bell’s deposition, Kuttner’s counsel asked the witness wheth-

er she had ever heard or seen any deputy violate any de-

partmental policy or rule. That question was obviously

overbroad; the judge had previously ruled similar questions

out of bounds (twice!) and did so again when he was called

during Deputy Campbell’s deposition. To curtail further

abuses, the judge directed Kuttner’s counsel to stick to

questions about the witness’s “personal knowledge of abuse

of authority committed by other deputies (i.e., no more

hearsay in the hope of leading to admissible evidence con-

cerning abuse of authority).” Understood in proper context,

this wasn’t a ban on “any hearsay questions,” as Kuttner

now contends.

In short, the judge’s discovery limitations were entirely

reasonable responses to the litigation conduct of Kuttner’s

counsel. We find no abuse of discretion.

burdens that would necessarily flow from opening eight additional years

of personnel records to discovery so late in the litigation.

10 No. 14-3812

B. Summary Judgment

We review the judge’s summary-judgment ruling de no-

vo, giving Kuttner the benefit of all reasonable inferences.

Huang v. Cont’l Cas. Co., 754 F.3d 447, 450 (7th Cir. 2014).

Kuttner never specifically articulated which evidentiary path

she was pursuing to support her claims that she was fired

and denied a promotion on account of her sex. It’s clear,

however, that she has no direct proof of discrimination. See

Collins v. Am. Red Cross, 715 F.3d 994, 999 (7th Cir. 2013) (The

“direct” method of proof requires that the plaintiff “provide

either direct or circumstantial evidence that the employer

had a discriminatory motivation.”). The default method of

proving discrimination is the burden-shifting approach of

McDonnell Douglas, which requires the plaintiff to first make

a prima facie showing that “(1) she is a member of a protect-

ed class; (2) she met her employer’s legitimate job expecta-

tions; (3) she suffered an adverse employment action; and

(4) similarly situated employees outside of the protected

class received more favorable treatment.” Keeton v. Morn-

ingstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012).

The district judge concluded that Kuttner failed to satisfy

the prima facie requirements because she did not identify

any similarly situated male employee who received more

favorable treatment. That conclusion was sound. Kuttner

proposed four comparators—Richard Morgan, Philip Lynch,

Joseph Zbilski, and Edmund Moore—but their misconduct

wasn’t similar enough to Kuttner’s to make them suitable for

comparison under the indirect method of proof.

Deputy Morgan received a written reprimand for making

two personal visits to a female inmate in the jail while in

uniform. Sergeant Lynch and Deputy Zbilski both distribut-

No. 14-3812 11

ed expired commissary food to an indigent female inmate;

Lynch was instructed by a supervisor to discontinue the

practice, but no discipline followed for either officer.

Sergeant Moore held night employment as a bouncer at a

bar; he was issued a written reprimand and instructed to

quit his second job.

On appeal Kuttner points to additional alleged miscon-

duct by Morgan, Zbilski, and Moore. She says that Deputy

Morgan allowed his girlfriend to dress up in his uniform for

Halloween; for this he was referred to the Merit Commis-

sion, but he was not fired. Kuttner also claims that Deputy

Zbilski hired an ineligible inmate to operate the commissary,

but no charges were ever brought for this misconduct.

Finally, she says that Deputy Moore had a romantic relation-

ship with a domestic-violence victim but was not referred to

the Merit Commission or otherwise reprimanded.

Kuttner’s prima facie case requires a showing of suffi-

ciently analogous misconduct by male officers to support an

inference that she was treated more harshly because of her

sex. As the district judge correctly noted, the gravamen of

the misconduct for which Kuttner was fired was “us[ing her]

uniform to convey the impression that [she] was acting on

the authority of the Sheriff’s Office, but was not.” It’s not just

that Kuttner wore her uniform while off duty or even for

unofficial purposes; the material point is how the uniform

was being used—for the improper projection of coercive

police authority in service of a personal end. That’s what

differentiates Kuttner’s misconduct from, for example,

Deputy Morgan’s allowing his girlfriend to wear his uniform

to a Halloween party or making two personal visits to a

female inmate in the jail. In Deputy Morgan’s case, there

12 No. 14-3812

were no allegations of coercion by the use or appearance of

legal authority.

The remaining instances of misconduct by the male com-

parators are not remotely analogous to Kuttner’s coercive

misuse of her uniform. Probably the closest call is Sergeant

Moore’s night employment providing security at a bar. But

he was not accused of wearing his uniform at this second

job, so there was no improper coercion.

Summary judgment is appropriate when the distinctions

between the plaintiff and the proposed comparators “are so

significant that they render the comparison effectively

useless.” See Humphries v. CBOCS W., Inc., 474 F.3d 387, 405

(7th Cir. 2007). That is the case here. The judge correctly

granted summary judgment for the sheriff on Kuttner’s

claim that she was fired because of her sex.

Finally, Kuttner argues that her failure-to-promote claim

should have survived the summary-judgment motion. We

don’t see how; she never applied for a promotion, nor did

she allege that a less qualified male officer was promoted

over her during the 300-day limitations period preceding her

complaint. Rather than contesting this line of reasoning

directly, Kuttner shifts gears and argues that she “may

establish a prima facie case using statistical evidence instead

of comparative evidence pertaining to each class member.”

There are two glaring problems with this argument: This

isn’t a class action, and Kuttner hasn’t adduced a shred of

statistical evidence to support the claim.

AFFIRMED.

No. 14-3812 13

POSNER, Circuit Judge, dissenting. The plaintiff, a former

deputy sheriff of DuPage County, Illinois, charges the sheriff

with having filed a complaint with the Sheriff’s Merit Com-

mission that led the Commission to fire the plaintiff for an

offense that was almost always less serious, rarely as serious,

and never more serious than offenses committed by male

deputy sheriffs that elicited either no punishment or a slap

on the wrist. If the plaintiff could prove these allegations she

would be well on her way to proving sex discrimination in

violation of Title VII of the Civil Rights Act of 1964. She was

prevented from proving them by an arbitrary discovery cut-

off date of January 1, 2006, imposed by the district judge.

(Other allegations that she made were properly rejected by

the district court, however.)

She was fired for violating two departmental regulations:

“Conduct Unbecoming,” and “Wearing of the Uniform”

when not on duty. Knowing that her partner in a real estate

brokerage business had lent money that had not been repaid

when due, she went to the borrower’s home dressed at least

partially in uniform (a potentially significant qualification

ignored in the majority opinion, as by the district judge—

one would like to know whether she was wearing enough of

her deputy sheriff’s uniform to appear to be on duty). Upon

learning that he was not at home, she left a business card in

the names of “Susan A. McKinley” and “Team in Focus, DC

International,” names she uses in her off-duty business activ-

ities. She had no financial interest in the repayment of the

loan, which was unrelated to the partnership.

The Commission’s decision to fire her was based not just

on the incident just described but also on her failing to notify

the sheriff’s department that she had engaged in off-duty

14 No. 14-3812

business activity while in uniform, though this may have

been a common practice of other deputy sheriffs who en-

gage, as a number appear to do, in off-duty business activi-

ties. The majority opinion’s description of her wearing her

uniform (or part of it) off duty as “the improper projection of

coercive police authority” and “coercive misuse of her uni-

form” is, however, unsubstantiated. The borrower whom

she tried to visit was not at home, and so he didn’t see her in

uniform. His father opened the door to her and told her that

his son wasn’t at home, but he has not complained that he

felt intimidated by her visiting in uniform. (For all we know,

father and son knew she was a police officer and expected

her to be wearing a uniform.) If a police officer drops into

Starbucks in uniform, the uniform does not intimidate the

barista. So far as appears, no one has complained of being in-

timidated by the plaintiff. There is no suggestion that she

ever revisited the borrower’s home.

She’d been hired by the sheriff’s department in 1998; she

filed this suit in 2010. Because of the January 1, 2006, discov-

ery cut-off date, she was unable to conduct discovery re-

garding a series of suspected offenses by male sheriff’s dep-

uties committed between her hiring date and the end of

2005. She listed 21 suspected offenses that she believed had

been committed by male deputies during that period, in-

cluding a uniformed officer’s having sex in his squad car

with the wife of a man whom the officer had arrested for

domestic battery (she was the victim of the battery); an of-

ficer’s dressing his girlfriend in his uniform and parading

her in a bar, where the couple was seen by other officers

who had been summoned because a fight had broken out; an

officer who groped and harassed a teenage girl whose moth-

er complained to no avail, and who, while in uniform, re-

No. 14-3812 15

fused to pay the full price of or the tax on an item on the

ground that he was a sheriff’s deputy, and who hired a pros-

titute for himself and his wife, refused to pay her, and ar-

rested her when she kept insisting on being paid; an officer,

again in uniform, who demanded a “police price discount”

and launched an investigation to determine whether a hot

dog that had made him ill had been deliberately tampered

with because he was an officer; an officer arrested for driv-

ing under the influence; an officer who in and out of uniform

repeatedly beat up his girlfriends and was arrested twice for

driving under the influence and on one of those occasions

was found to have cocaine in his car; an officer who while in

uniform frequented a massage parlor suspected of being a

brothel and who when he discovered that the sheriff’s office

was beginning to investigate the parlor is believed to have

tipped it off; an officer repeatedly accused of sexual harass-

ment and caught viewing pornography on a county comput-

er while on duty and in uniform; another officer who was

the subject of repeated complaints of sexual harassment; an

officer who dated a female deputy sheriff who accused him

of having broken into her apartment after they broke up and

having on that occasion masturbated on the pillow of her

bed, all while in uniform; an officer who while in uniform

hired an ineligible inmate who happened to be a friend of

the officer’s family to operate the commissary in the sheriff’s

office; an officer who was caught on a videotape stealing

from a record store—in uniform.

I’ll spare the reader the other 10 alleged incidents. In

none of the 21 incidents were the perpetrators fired and

many were later promoted. Yet every one of the incidents, if

they were as described in the plaintiff’s allegations—and it’s

hard to imagine them as sheer fabrications—were either as

16 No. 14-3812

serious as, or (more often) considerably more serious than,

the plaintiff’s visit to the home of her partner’s debtor. In-

deed, since the person she was trying to visit was not at

home, he can’t have been intimidated by her uniform (unless

perhaps his father was—of which there is no indication).

Although the other ground of her being fired was wearing

her uniform while engaged in business activities, there is no

indication that her wearing the uniform ever intimidated an-

yone.

I don’t see how the judges in the majority can say with

straight faces that the plaintiff “did not identify any similarly

situated male employee who received more favorable treat-

ment.” She identified more than 21 such favored males (for

some of the incidents involved more than one officer).

Granted, these were accusations (though given what we

know of police behavior, not unbelievable ones), but she was

given no opportunity to prove them. I also don’t see the rel-

evance of the majority opinion‘s saying, about the deputy

sheriff who hired an ineligible inmate to operate the sheriff’s

office commissary, that “no charges were ever brought for

this misconduct”—as if failure to bring charges excused, ra-

ther than exacerbated, the misconduct.

The plaintiff’s lawyer was prevented from trying to es-

tablish the truth of the accusations against the male deputy

sheriffs because he was barred by the January 1, 2006, cut-off

date from conducting any discovery relating to the incidents

in question, all of which had occurred before that date. He

wasn’t even allowed to conduct discovery of just the most

egregious violations by the male deputy sheriffs, violations

that despite their egregiousness had led to no one’s being

fired and few being punished in any way. At oral argument I

No. 14-3812 17

asked the sheriff’s lawyer whether there had been any

changes in the department’s disciplinary standards or pro-

cedures, effective at the beginning of 2006, that might have

made the earlier incidents ancient history; for had the sher-

iff’s office cleaned up its act by January 1 of that year the

discovery limit would have been defensible. He replied that

there had been no such changes. The majority opinion miss-

es this point when it says that the cut-off date “served to

hone in on possible comparators [awful word] who were

reasonably likely to have been subject to the same rules, su-

pervisors, and decision-making process as” the plaintiff.

There is, to repeat, no evidence of a change of rules, supervi-

sors, or the department’s decision-making process in 2006.

The majority opinion approves the January 1, 2006, cut-

off date for discovery but gives no reason for its approval,

though the logical cut-off date would have been when the

plaintiff was hired in 1998. The cut-off date imposed by the

district judge and now ratified by this court killed the plain-

tiff’s case because she was able to identify only four inci-

dents of misconduct by male sheriff’s deputies in the four

years after the cut-off date, none of which was comparable to

her misconduct, compared to the 21 incidents that she had

learned about that had occurred in the eight preceding years

(1998–2006). Those incidents, summarized earlier in this

opinion, involved worse misconduct than hers—indeed

there’s no indication that the plaintiff’s misconduct caused

harm to anyone or even minor embarrassment to the sher-

iff’s department.

Had the department cleaned up its act by 2006, the judge

would have been right to exclude evidence pertaining to ear-

lier misconduct, because the incident that appears to have

18 No. 14-3812

triggered the plaintiff’s discharge—the visit to the home of

the person who owed her partner money—came later. But,

to repeat, the sheriff’s lawyer acknowledged that nothing

had changed in 2006, and so there was no reason to ignore

the earlier misconduct, which was the critical evidence of

discriminatory treatment of the plaintiff. The majority opin-

ion concedes that the “January 1, 2006 [cut-off] date isn’t

keyed to any specific facts in the case.” Very odd is the fur-

ther statement that granting the plaintiff’s motion to recon-

sider the cut-off date “threatened to impose a massive new

burden on the defendants with only a few weeks remaining

until the discovery cutoff.” If the department needed more

time, the judge could have extended the cut-off date. In the

unlikely event that discovery regarding all 21 incidents

would have placed a crushing burden on the sheriff’s office

(more likely it would have led the office to clean out the Au-

gean stables at last), the judge could have limited the discov-

ery, at least to begin with, to the most serious of the 21 inci-

dents.

One of the pre-2006 incidents that the plaintiff wanted to

explore involved the officer who had dressed his girlfriend

in his uniform and paraded her in a bar. His only post-cut-

off offense (2008), or at least the only offense of which he

was accused, was making personal visits to a female detain-

ee in the county jail, in uniform of course. For this miscon-

duct he was issued a written reprimand, even though the

misconduct was styled “abuse of position.” It is hard to

square his written reprimand with the plaintiff’s being fired

for a less serious offense, especially since he was a recidivist

and she a first offender, who could expect to be treated more

leniently. As for the three other incidents of misbehavior by

male deputy sheriffs after the 2006 cut-off date, one led to a

No. 14-3812 19

written reprimand, another to no disciplinary action, and the

third to a mere admonition to the deputy sheriff to desist

from repeating the infractions.

The arbitrary discovery cut-off date was the district

court’s worst mistake, but there were two other serious mis-

takes as well, both ignored in the majority opinion. One was

to base the cut-off date on annoyance at what the judge

deemed abuses by the plaintiff’s lawyer—and there were a

few, such as asking to see the personnel file of the sheriff’s

wife. But the proper response to those abuses would have

been to order the lawyer to shape up, and if necessary to fine

him for his contumacy; the tight cut-off date arbitrarily pun-

ished his client. Second, the judge refused to allow the law-

yer to ask any questions intended to elicit hearsay testimony.

The lawyer wanted to ask members of the sheriff’s depart-

ment whether they’d heard mention of misconduct commit-

ted by other members. An answer to such a question would

be hearsay. But as the district judge seems to have over-

looked, the version of Fed. R. Civ. P. 26 in force during the

district court proceedings permitted hearsay in discovery if

it held reasonable prospects of leading to admissible evi-

dence. See Fed. R. Civ. P. 26(b)(1) (the rule was changed ef-

fective December 1, 2015, but final judgment in the district

court in the present case had been entered on December 4,

2014, and anyway the new rule provides that “discovery

need not be admissible in evidence to be discoverable”);

Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 930

(7th Cir. 2004); Oppenheimer Fund, Inc. v. Sanders, 437 U.S.

340, 350–51 (1978). Given the difficulty of discovering mis-

conduct that does not give rise to a written report, the judge

should have allowed inquiry into the knowledge possessed

20 No. 14-3812

by witnesses concerning possible misconduct by sheriff’s

deputies.

The combination of the arbitrary cut-off date and the dis-

covery hearsay bar was fatal to a promising case of disparate

treatment based on gender. And “promising” is an under-

statement. It is a virtual certainty that the plaintiff was disci-

plined far more harshly than male counterparts who en-

gaged in far more egregious conduct—far more harshly be-

cause she’s a woman. The DuPage County Sheriff’s Office is

or at least was a boy’s club.

We should be reversing and remanding to permit further

discovery, not affirming.