### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 3812
S USAN A. K UTTNER , Plaintiff

- Appellant ,

v.
J OHN Z ARUBA , et al. , Defendant s

- Appellee s

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division

. No. 10 C 04290

— Edmond E. Chang , Judge

.

____________________
A RGUED M AY 29 , 2015

— D ECIDED A PRIL 14 , 2016

____________________

Before P OSNER , E ASTERBROOK , and S YKES , Circuit Judges

. S YKES , Circuit Judge

. Susan Kuttner was fired from her job

as a DuPage County deputy sheriff after she wore her uniform and badge while trying to collect on a loan for a friend. She sued the s heriff alleging that she was fired because of her sex

. There’s no direct evidence of sex discrimination, soKuttner’s lawyer embarked on a protracted fishing expedition in search of possible comparators to try to mount a case2 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 di scovery requests, the district judge s tep ped in and impose d some limits. In the end Kuttner failed to ad duce evidence of sex discrimination , so the judge entered summary judgment for the sheriff

. On appeal Kuttner argu es that the judge unduly restricted di scovery and improperly granted summary judgment

. We reject these arguments and affirm. I. Background

Kuttner began working as a DuPage County deputy sheriff in 19 98. In February 2010 she was fired by the Merit Commis sion, a unit of the s heriff’ s department that handles hiring, promotions, and disciplinary mat ters. T he Commission was acting on an October 2009 complaint by Sheriff John Zaruba regarding an inci dent that occurred several months earlier when Kutt ner, 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 Ben jamin

. Benjamin did not repa y the loan. O ne afternoon in April or May 2009 , Kuttner

— wearing her official sheriff’s u niform and badge

— visited Benjamin’s home in Hinsdale, Illinois, where he lived with his parents

. Benjamin’s fat her 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

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Sheriff Zaruba alleged in his disciplinary complaint that Kuttner’s conduct

— attempt ing to collect on a personal loan f o r a friend while in uniform

— violated multiple departmental regulations . In what amount ed to a plea deal, Kuttner stipulated to the facts we’ve just recounted and admit ted to violating two rules: one prohibiting “conduct unbecoming” an officer and another prohibiting the improper wearing of the uniform. In exchange the other disciplinary charges were dropped. T he Merit Commission deter mined 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 t he agency declined action and gave her permission to sue, she brought this lawsuit against Sheriff Zaruba claimin g 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 w as fired and d enied 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 C ounty is in the suit only by virtue of its duty to pay any judgment against Sheriff Zaruba in his official capacity. We’l l 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 employment 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

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Discovery did not go smoothly . Lacking any direct evidence of discriminatio n, Kuttner ’s attorney cast a very wide discovery net in an effort to turn up male deputies who fac ed similar miscon duct charges but suffered less drastic employment consequenc es. Among other things, Kuttner’s lawyer sought the entire personnel files of mor e than 30 employees of the Sheriff’s Office

— including , baselessly, documents relat ing to S heriff Zaruba ’s wife. The sheriff objected , and w hen t he parties couldn’t resolve the dispute, they sought the court’s assistance. Prompted by the judge, K uttner’s la wyer admitted that his request for documents about the sheriff’s wife’s file was just “a fishing expedition.” Following a hearing, t he judge concluded that K uttner’s discovery requests were overly broad and unduly burdensome because they lacked any time limitation and werebased on “an overbroad definition of ‘similarity’ of misconduct.” T he judge curtailed the scope of discoverable personnel documents to those aris ing after January 1, 2006 , and pertaining to employees who we re alleged to have engaged in “similar misconduct as [ Kuttner ] (abuse of authority) or sufficiently serious misconduct.” In addition to issuing these general limitations, t he ju dge r esolved some specific disputes about the disclosure of personnel files of particular employees.

D iscovery proceeded for several months under these restrictions. More than three months later, however, Kuttner

mo ved for reconsideration. The judge was not impressed with the belated motion, which came just a few weeks before the dea dline to complete discovery (already twice extended)

. The judge reiterated his view that “[f]rom the start of discovery , P la i ntiff (actually, her counsel) has made overlyNo. 14

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broad and unduly burdensome discovery requests, some of which were unwarranted fishin g expeditions bordering on harassment.” As the judge saw it, Kuttner’s counsel was again “over

- reaching” and had sh own “no solid factual basis for believing ” that relevant evidence would be uncovered if the discovery restrictions were lifted. T he judge declined to revisit his earlier order. It was not long before Kuttner ’s lawyer again butt ed heads with the judge

— this time during the next

- to

- last round of depositions. D e posi ng Depu ty Tara Campbell , Kuttner’s counsel asked the witness whether she h ad ever heard or seen any deputy violate any S heriff’s O ffice policy or pro cedure. Predictably, this expansive inquiry drew an objection, and a call to the judge’s chambers followed

. T he judge had twice sustained objection s t o similarly overbroad inquiries by Kut tner’s counsel earlier in this contentious discovery process . The judge did so again and restrict ed the inquiry to questions about the witness’s “personalknowledge of abuse of authority committed by other deputies ( i.e. , no more hearsay in the hope of lea ding to admissible evidence concerning abuse of authori ty).” After discovery closed Sheriff Zaruba moved for summary judgment

. Kuttner responded by proffering four male comparators that she claimed had also abused their positions but were not fired. The judge rejected all four because the ir misconduct w as too dissimi lar to make them suitable for comparison under the McDonnell Douglas indirect method of proof

. Kuttner offered no other evidence that she was fired because of her sex, so t he judge entered summary judgment for the sheriff on this claim. The judge also rejected Kuttner’s failure

- to

- promote claim because she had never6 No. 14

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sought a promotion , nor had she allege d th at a less qualified male employee w as promoted over her w ithin the 3 00

- day limitations period. Finally, the judge concluded that material factual dispute s necessitated a trial on Kuttner’s claim about the she riff’s jail

- staffing policies. A different judge presided at trial. Sheriff Zaruba prevailed

. II. Discussion

Kuttner apparently accepts the outcome of the trial ; on appeal s he does not seek to revive her jail

- staffing claim

. Rather, s he challenges only the judge’s discovery limitations and his summary

- judgment rulings rejecting her claims that she was fired and d enied a promotion because of her sex

. A. Discovery Limitations

D istrict judges have broad discretion over discovery matters , so we review discovery rulings deferentially, only for abuse of discretion. Spitz v. Proven Winners N

. Am

. , LLC , 759 F.3d 724, 733 (7 th 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). I f we do find an abuse of discretion, “ we will not grant any relief ‘absent a clear showing that the denial of discovery re sult ed in actual and substantial prejudice. ’ ” Id. (quoting Searls v. Glasser , 64 F.3d 1061, 1068 ( 7th Cir. 19 9 5) )

. Kuttner argues that the judge’s temporal limitation on di scovery

— the January 1, 2006 outer boundary for personnel records

— was arbitrary. A ny temporal limit on discovery is in

some sense ar tificial , and it’s true that the January 1, 2006No. 14

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

. But our abuse

- of

- discretion standard of review requires a deferential and c ontextualized approach . To that end, the proper inquiry in this case is two

- fold: (1) was some time limit warranted here, and (2) was this tim e limit reasonable, i.e., did it allow Kuttner a meaningful opportunity for discovery? T he 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 expedi tion, perhaps exemplified

mos t 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. T he judge reasonably concluded that this litigatio n conduct by Kuttner’s counsel justified placing some limit s on discov ery so that it would focus only on capturing information reasonably calculated to lead to relevant evi dence. Recency is one component of relevance. Valid comparators for a plaintiff pro ceed ing 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 o r the employer’ s treatment of them.” Radue v. Kimberly

- Clark Corp ., 219 F.3d 612, 617

– 18 (7th Cir. 2000). Here, r estricting the time period wa sn’t just about preempting a fishing expedi tion; it also serve d 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 Engine8 No. 14

- 3812

Div. of Coltec Indus ., 328 F.3d 309, 322 (7th Cir. 2003) (affirming the district co urt’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 plain tiff).
We’re confident as well that the auth orized window was adequate for Kuttner to engage in m eaningful discovery. Kuttner doesn’t attack the judge’s original order limiting discovery; rather, she takes aim at t he denial of her reconsideration motion

. Recall that m ore than three months elapsed be tween the original order and Kuttner’s reconsideration motion . While this delay is not dispositive, there’s no question that it threaten ed 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 de clining to reopen the matter

. That was clearly a valid consideration

. The judge also noted that the discovery deadline had already been ex tended several times, yet Kuttner had “fail [ed] to advance the act ually

- 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 tar dy reconsideration motion. See Dissent at p. 1 8

. As we’ve noted, however, Kuttner’s attorney waited three mont hs before asking the judge to re consider 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 theNo. 14

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Finally , Kuttner points to the fact that the judge who presided at trial “ allowed testimony and evidence on all matters, 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 ent irely 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 t he court’s directive prohibit ing “ any hearsay questions during depositions

. ” But this mischaracteriz es the judge’s ruling

. D uring Deputy Campbell’s deposition , Kuttner’s counsel asked the witness whether she had ever heard or seen any deputy violate any departmental policy or rule . Th at question wa s o bviously 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 abuse s, 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 morehearsay in the hope of leading to admissible evidence concerning abuse of authority).” Understood in proper context, this wasn’t a ban on “any hearsay quest ions , ” 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

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B. S ummary Judgment

We review the judge’s summary

- judgment ruling de novo, giving Kuttner the benefit of all reasonable infer ences

. Huang v. Cont ’ l Cas. Co. , 754 F.3d 447, 450 (7th Cir. 2014). Kutt ner never specifically articulated which evidentiary path she was pursuing to support her claims that she was fired

an d denied a promo tion on account of her sex. It’s clear , however, that s he has no direct proof of dis crimination

. 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 direc t or circumstantial evidence that the employer had a discriminatory motivation.” ). The default method of pro ving discrimination is the burden

- shifting approach of McDonnell Douglas , which requires the plaintiff to first make

a prima facie showing tha t “(1) she is a member of a protected class; (2) she met her employer’s legitimate job expectations ; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of the protected class received more favorable treatment.” Keeton v. Morningstar, Inc ., 667 F.3d 877, 884 (7th Cir. 2012). The district judge concluded t hat Kuttner failed to satisfy the prima facie requirements because she did not identify any similarly situated male employee who received more favorable treatment. That co nclusion was sound. Kuttner proposed four comparators

— Richard Morgan, Philip Lynch, Jo seph Zbilski, and Edmund Moore

— but their misconduct wasn’t similar enough to Kuttner’s to make them suitable for comparison u nder the indirect method of proof

. Deputy Mor gan received a written reprimand for making
two personal visits to a female in mate in the jail while in uniform

. Sergeant Lynch and Deputy Zbilski both distribut-No. 14

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ed expired commissary food to an i ndigent female inmate; Lynch was instructed by a supervisor t o discontinue the practice, but no discipline followed for either officer

. Sergeant Moore held night employment as a boun cer at a bar; he was issued a written reprimand and instructed to quit his second job. On appeal Kuttner points to additional alleg ed m isconduct 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 Commission , but he was not fired

. Kuttner also claims that Deputy Zbilski hired an ineligible inmate to operate the commissary , but no charg es were ever brought for this misconduct

. Finally, s he says that Deputy Moore had a romantic relationship with a domestic

- violence vic tim but was not referred to the Merit Commission or otherwise rep rimanded. Kuttner’s prima facie case requires a showing of sufficiently analogous misconduct by male officers to support an inference that she was treated more harshly because of her sex. As t he district judge correctly noted, the gravamen of the misconduc t for which Kuttner was fired w as “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 ma terial point i s 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 uni form
to a Halloween party or making two personal visits to a female inmate in the jail . I n Deputy Morgan’s case, there12 No. 14

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were no allegations of coerc ion by the use or appearance of legal authority.
The remaining instances of misconduct by the male comparators are not remotely analogous to Kuttner’s coercive misuse of her uniform

. P robably the closest call is Sergeant Moore’s night employment provid ing security at a bar. But he was not accused of wearing his unifor m at this second job, so there was no improper c oercion

. 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. CBO CS W. , Inc ., 47 4 F.3d 387, 405 (7th Cir. 2007)

. That is the case here. The judge correctly grant ed 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 h ave survived the summary

- judgment motion

. We don’t see how; she never applied for a promotion, nor did she allege that a less qualified ma le officer was promoted over her during the 300

- day limitations period preceding her

com plaint. 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 : T his isn’t a class action , and Kuttner hasn’t adduced a shred of statistical evidence to support the claim

. A FFIRMED

.N o. 14

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P OSNER , Circuit Judge , dissenting. The plaintiff, a former deputy sheriff of DuPage County, Illinois, charges the she r iff with having filed a complaint with the Sheriff’s Merit Co mmission that led the Commissio n to fire the plaintiff for a n offense that was almost always less serious , rarely as serious, and never more seri ous than offenses committed by male deputy sheriffs that elicited either no punis h ment or a slap on the wrist

. If the plaintiff could prove th ese allega tions she would be well on her way to proving sex discrimination in viol a tion of Title VII of the Civil Rights Act of 1964. She was prevented from proving them by an a r bitrary discovery cut

off date of January 1, 2006, imposed by the district jud ge

. (O ther allegations that she made were properly rejected by the di s trict court , however .)
She was fired for violating two department al regul a tions: “Conduct Unbecoming , ” and “Wearing of the Un i form” when not on duty. K nowing that her par t ner in a real e state brokerage business had lent money that had not been repaid when due , she went to the bo r rower’s home dressed at least partially in uniform (a potentially significant qualif i cation ignored in the majority opinion , as by the di s trict judge

— one would li ke to know whether she was wearing enough of her deputy sheriff’s uniform to appear to be on duty ) . U pon learning that he was not at home , she left a business card in the names of “Susan A. McKinley” and “Team in Focus, DC I n terna tional, ” names she uses in her off

- duty business activities . S he had no fina n cial interest in the repayment of the loan , which was unrelated to the par t ne r ship.
The Commission’s decision to fire her was based not just on the incident just described but also on her failing to n o tify the sheriff’s department that she had engaged in off

- duty14 No. 14

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business ac tivit y while in un i form , though this may have been a common practice of other deputy sheriffs who e ngage , as a number appear to do , in off

- duty business activ ities. The m a jorit y opinion’ s description of her wearing her uniform (or part of it) off duty as “the improper proje c tion of coercive police authority” and “coercive misuse of her un iform ” is , however, unsubstant i ated . The borrower whom she tried to visit was not at home, and so he d idn’t see her in uniform. His f a ther 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 off i cer 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 i ntimidated 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 , disco very cut

- off date , she was unable to conduct discovery r egarding a series of suspected offenses by male she r iff’s d eputies committed between her hiring date and the end of 2005

. She listed 21 suspected offenses that she b e lieved had been committed by male deputies during that period , i ncluding a uniformed officer’s having sex in his squad car with the wife of a man who m the officer had arrested fordomestic battery (she was the victim of the battery); an off i cer’s dressing his girlfriend in his uniform and para d ing her in a bar, where the couple was seen by other officers who had been summoned because a fight had broken out ; an off i cer who groped and harassed a tee n age girl whose mother complained to no avail , and who , while in uniform , r e-No. 14

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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 pro stitute for hims elf and his wife, refused to pay her, and arrested her when she kept insisting on being paid ; an officer , again in uniform , who demanded a “p o lice price discount” and launched an investigation to dete r mine whether a hot dog that had made him ill had been d elibe r ately tampered with because he was an officer; an officer arrested for driving u n der the influence; an officer who in and out of uniform

r e peatedly beat up his girl friends and was arrested twice for driving under the influence and on one of those o c c asions was found to have cocaine in his car; an officer who while in

un i form frequented a massage parlor suspected of be ing a brothel and who when he di s covered that the sheriff’s office was beginning to investigate the parlor is believed to have tipped it off; an officer repeatedly accused of sexual haras sment and caught viewing pornography on a county co m puter while on duty and in uniform; another officer who was the subject of repeated co m plain t s of sexual harassment; an officer who dated a female deputy sheriff who accused him of having broke n into her apart ment 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 un i form hired an ineligi ble inmate who happened to be a friend of the offi c er’s fam ily to operate the commissary in the she r iff’s office; an off i cer who was caught on a videotape stealing from a re cord store

— in un i form. I’ll spare the reader the other 10 alleged incidents

. In

none of the 21 incidents were the perpetra tors fired and many were later promoted

. Yet every one of the incidents , if they were as described in the plaintiff’s all e gations

— and it’s hard to imagine them as sheer fabrications

— were either as16 No. 14

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ser i ous as, or (more often) considerably more serious than , the plaintiff’s visit to the home of her partner’s debtor. I ndeed, 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)

. A l though the other ground of her being fired was wearing her uniform while engaged in business activities, there is no i n dication that her wearing the uniform ever intimidated any one

. I don’t see how the judges in the majority can say with straight face s that the plaintiff “ did not identify any similarly situated male employe e who received more favorable trea tment

. ” 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 k now of police b e havior, not unbelievable ones) , but she was given no oppo r tunity to prove them. I also don’t see the relevance of the majority opinion‘s saying, about the deputy sheriff who hired an ineligible i n mate to operate the sheriff’s office commiss ary , that “ n o charges were ever brought for this misconduct”

— as if fai l ure to bring charges excused, rather than ex a cerbated, the misco n duct

. The plaintiff’s lawyer was prevented from trying to e stablish the truth of the accusations against the male deput y sheriffs because he was barred by the January 1, 2006 , cut

- off date from conducting any discovery re lating to the incidents in question , all of which had o c curred before that date

. He wasn’t even allowed to conduct discovery of just the most egr e gious vi olations 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 INo. 14

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asked the sheriff’s lawyer whether there had been any change s in the department’s discip linary standards or pr ocedures, effe c tive at the beginning of 2006, that might have made the ear lier incidents ancient history; for had the she riff’s office cleaned up its act by January 1 of that year the discovery limit would have been defensible. He r e p lied that there had been no such change s

. The majority opinion misses this point when it says that the cut

- off date “served to hone in on possible comparators [a w ful word] who were reasonably likely to h a ve been subject to the same rules, s upervisors, and decision

- making process as” the plaintiff. There is , to repeat, no evidence of a change of rules, superv isors, or the department’s d e cision

- making process in 2006. The majority opinion approves the January 1, 2006 , cut

off date for discovery but gives no r eason for its approval, though t he 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 plai ntiff’s case because she was able to identify only fo ur inc idents of misconduct by male she r iff’s deputies in the four years after the cut

- off date, none of which was comparable to her misconduct, co m pared to the 21 incidents that she had learned about that had o c curred in the eight preceding years (1998

– 200 6)

. Those incidents , summarized earlier in this opi n ion, involved worse misconduct than hers

— indeed there’s no indic a tion that the plaintiff’s misconduct caused harm to anyone or even minor embarrassment to the she riff’s d e partment.
Had the d e partment clea ned up its act by 2006, the judge would have been right to exclude evidence pertaining to ea rlier misconduct , because the incident that appears to have18 No. 14

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triggered the plaintiff’s discharge

— the visit to the home of the person who owed her partner money

— came later

. But , to repeat, the she r iff’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 opi nion conce des that the “Jan u ary 1, 2006 [cut

- off] date isn’t keyed to any specific facts in the case.” Very odd is the fu rther statement that granting the plaintiff’s motion to reco nsider the cut

- off date “threatened to impose a massive new bu r den on the defendants with only a few weeks remaining until the disco v ery cutoff.” I f the department needed more time, the judge could have extended the cut

- off date. In the unlikely event that di s covery regarding all 21 incidents would have placed a crushing burden on the she r iff’s office (more likely it would have led the office to clean out the A ugean stable s at last), the judge could have limited the disco very, at least to begin with, to the most serious of the 21 inc idents

. One of the pre

- 2006 incidents that the plaintiff w anted 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 d e tainee in the county jail, in uniform of course

. For this mi s conduct he was issued a written reprimand , even though the misconduct was styled “abuse of position

. ” It is hard to square his wri t ten reprimand with the plaintiff’s being fired for a less serious offense, es pecially since he was a recidivist and she a first o f fender, who could expect to be treated more leniently

. As for the three other incidents of misbehavior by male deputy she r iffs after the 2006 cut

- off date , one led to aNo. 14

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written reprimand , another to no d isc i plinary 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 mi s take, but there were two other serious mi stake s as well , both i g no red 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 as k ing to see the personnel file of the sheriff’s wife. But the proper response to those abus es would have been to o r der the lawyer to shape up, and if necessary to fine him for his contumacy ; t he tight cut

- off date arbitrarily pu nished his client. Second, the judge refused to allow the la wyer to ask any questions intended to elicit hearsay testim ony

. The lawyer wanted to ask members of the sheriff’s depar tment whether they’d heard mention of misconduct commi tted by other members . An answer to such a question would be hearsay . B ut as the district judge seems to have ove rlooked , the ve r sion 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 ev idence

. See Fed. R. Civ. P. 26 (b)(1) ( the rule was cha nged e ffective D e cember 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 M e morial Hospital v. Ashcroft , 362 F.3d 923, 930 (7th Ci r. 2004) ; Oppe n heimer Fund, Inc. v. Sanders , 437 U.S. 340, 35 0

– 5 1 (1978)

. Given the difficulty of discovering mi sconduct that does not give rise to a written report, the judge should have allowed inquiry into the knowledge possessed20 No. 14

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by witnesses concerning possible misconduct by sheriff’s deputies. The combination of the arbitrary cut

- off date and the discovery hearsay bar was fatal to a promising case of disp a rate treatment based on gender. And “promising” is an u n derstatement. It is a virtual certainty th at the plaintiff was disciplined far more harshly than male counterparts who engaged in far more egregious conduct

— far more harshly b ecause she’s a woman. The DuPage County Sheriff’s Office is

or at least was a boy’s club. We should be reversing and remand ing to permit fu r ther discovery , not a f firming.