Susan Kuttner v. John Zaruba , 819 F.3d 970 ( 2016 )


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  •                                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.