Robert Bless v. Cook County Sheriff ’ Soffice

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2733
R OBERT BLESS,
Plaintiff-Appellant,
v.
C OOK C OUNTY SHERIFF ’ S OFFICE et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13-c-4271 — John Z. Lee, Judge.
____________________
A RGUED MAY 11, 2021 — D ECIDED A UGUST 17, 2021
____________________
Before EASTERBROOK , R IPPLE , and KANNE , Circuit Judges.
KANNE , Circuit Judge. Robert Bless, a police officer for the
Cook County Sheriff’s Office, was fired after an internal re-
view board determined that he had violated office policies
and then lied to investigators about his misconduct. Bless
sued his employer, alleging race discrimination and political
retaliation against him as a white Republican. The district
court granted summary judgment in favor of Defendants

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2 No. 20-2733
because Bless failed to carry his burden of proof under either
theory. We affirm the district court’s decision.
I. BACKGROUND
Robert Bless was employed by the Cook County Sheriff’s
Office from 1996 to 2013. In 2004, Bless earned his law degree
and began practicing law in addition to working as a police
officer. The Sheriff’s Office requires its employees to request
and receive authorization before engaging in secondary em-
ployment. From 2004 through 2008, Bless duly submitted the
required forms and received approval.
In September 2008, Bless was involved in a head-on colli-
sion in his squad car while on duty. He sustained injuries to
his neck and right shoulder. After the accident, he was placed
on disability leave and began receiving temporary disability
benefits because he was unable to return to work as a police
officer.
Shortly after the accident, Bless ran as a Republican for a
McHenry County Commissioner seat. He won the election in
November 2008 and began serving in that role in addition to
working as an attorney and collecting disability payments
from the Sheriff’s Office. The parties dispute whether Bless
submitted secondary employment requests for both jobs
while on disability leave, but it is undisputed that he did not
receive approval until November 2010, after he was medically
cleared and returned to work as a police officer.
Soon after his return, Bless was transferred from his pre-
vious north-side day shift in Rolling Meadows (close to his
home) to a less desirable south-side night shift. In February
2011, he was transferred back to Rolling Meadows.

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No. 20-2733 3
Meanwhile, in early 2009, the Cook County Department of
Risk Management began investigating Bless’s activities while
on disability leave. It discovered that Bless was driving his car
to work as an attorney and County Commissioner even
though he was classified as “Injured on Duty” (“IOD”) and
had a driving restriction on file. Risk Management notified
the Sheriff’s Office, and the internal Office of Professional Re-
view (“OPR”) began its own investigation.
OPR determined that the Sheriff’s Office had no records of
secondary employment requests (or approvals) for Bless from
January 31, 2009, to December 9, 2010. In an interview with
OPR, Bless told the investigators that he had submitted re-
quest forms during that time. OPR concluded that he was ly-
ing.
OPR brought administrative charges against Bless in May
2011 and, in October, filed a complaint with the Merit Board.
The complaint alleged that Bless had been driving while on
IOD status and working two other jobs without authorization
from the Sheriff’s Office. It also alleged that he had falsely re-
ported to OPR investigators that he had secondary employ-
ment requests on file.
As it happens, around this same time, the Cook County
Sheriff’s Office was released from a consent decree governing
its hiring practices. Thomas Dart, running as a Democrat, was
elected Cook County Sheriff in December 2006. Two years
later, under the various consent decrees, the district court ap-
pointed a federal monitor to review political considerations in
the Sheriff’s Office’s employment practices. In January 2011,
the court released the Sheriff’s Office from the decrees after
finding that it was in “substantial compliance.” Shakman v.
Democratic Org. of Cook Cnty., No. 69-cv-2145, ECF No. 1984.

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4 No. 20-2733
Between November 2012 and January 2013, the Merit
Board heard evidence on the charges against Bless. In May
2013, the Board issued its decision. It found that Bless had en-
gaged in unauthorized secondary employment, violated driv-
ing restrictions, and lied to OPR investigators about submit-
ting secondary employment requests. For those reasons, the
Board directed the Sheriff’s Office to fire Bless. It did.
After his termination, Bless filed this lawsuit against the
Sheriff’s Office, Sheriff Dart, and other county employees, al-
leging political retaliation under 42 U.S.C. § 1983 and race dis-
crimination under § 1983 and Title VII, 42 U.S.C. §§ 2000e, et
seq.1
During discovery, Bless sent interrogatories to Sheriff Dart
and sought to compel his deposition. Dart responded to the
interrogatories and moved to quash the deposition. The mag-
istrate judge denied Bless’s motion and granted Dart’s mo-
tion, and the district court overruled Bless’s objections to the
magistrate judge’s order.
Defendants then moved for summary judgment, which
the district court granted as to both the political retaliation
and race discrimination claims. Bless now appeals that deci-
sion, in addition to the district court’s order denying his at-
tempt to depose Sheriff Dart.
II. A NALYSIS
This appeal boils down to two issues: (1) was Bless entitled
to depose Sheriff Dart, and (2) were Defendants entitled to
1 Bless also requested administrative review of the Merit Board deci-
sion under state law. 735 ILCS 5/3-102. That claim was dealt with sepa-
rately and is not before us in this appeal.

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No. 20-2733 5
summary judgment on Bless’s discrimination and retaliation
claims. The answers are no and yes, respectively.
A. Deposing Sheriff Dart
District courts may limit discovery “to protect a … person
from annoyance, embarrassment, oppression, or undue bur-
den or expense” by, among other things, “prescribing a dis-
covery method other than the one selected by the party seek-
ing discovery.” Fed. R. Civ. P. 26(c)(1). We will overturn a dis-
trict court’s discovery determination only if it abused its dis-
cretion. Stagman v. Ryan, 176 F.3d 986, 993–94 (7th Cir. 1999).
A party generally has the right to depose witnesses during
discovery. Fed. R. Civ. P. 30(a). But “depositions of public of-
ficials create unique concerns.” Stagman, 176 F.3d at 994–95.
Thus, public officials, even those named in a lawsuit, need not
“giv[e] depositions in cases arising out of the performance of
their official duties unless there is some reason to believe that
the deposition will produce or lead to admissible evidence.”
Olivieri v. Rodriguez, 122 F.3d 406, 409–10 (7th Cir. 1997). The
district court found no reason to believe so here.
The court determined that Bless failed to provide “a suffi-
cient reason to believe that a deposition of Dart would create
or lead to unique, admissible evidence” or “explain[] why the
discovery tools that were available to him (and which he de-
clined to use) were an insufficient means of developing the
evidence he sought.” That was not an abuse of discretion.
There is no dispute that Sheriff Dart was not involved in
the OPR investigation of Bless or the Merit Board proceedings
reviewing Bless’s actions. And all that could be elicited from
Sheriff Dart’s deposition was information about one conver-
sation with Bless at an event. Although Bless alleges that he

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6 No. 20-2733
told Sheriff Dart about his 2008 accident, his positions as an
attorney and County Commissioner, and his affiliation with
the Republican Party, Sheriff Dart responded to Bless’s inter-
rogatories that he has “no recollection” of these events. It is
hard to see what more could be gained from a deposition, and
the court did not abuse its discretion in refusing to compel a
deposition when “a written interrogatory would do just as
well.” Olivieri, 122 F.3d at 410; see also Stagman, 176 F.3d at 994
(“We do not conclude that the district court abused its discre-
tion when, considering the evidence before it at that time, it
determined that deposing [the Illinois Attorney General]
would serve no useful purpose.”).
We therefore conclude that the district court did not abuse
its discretion in denying Bless’s attempt to depose Sheriff
Dart.
B. Summary Judgment on Bless’s Claims
“We review the district court’s grant of summary judg-
ment de novo, examining the record in the light most favorable
to [Bless] and construing all reasonable inferences from the
evidence in his favor.” Yahnke v. Kane County, 823 F.3d 1066,
1070 (7th Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)). “Summary judgment is appropriate
when the admissible evidence shows that there is no genuine
dispute as to any material fact such that the moving party is
entitled to judgment as a matter of law.” Monroe v. Ind. Dep’t
of Trans., 871 F.3d 495, 503 (7th Cir. 2017) (quoting Taylor-No-
votny v. Health Alliance Med. Plans, Inc., 772 F.3d 478, 488 (7th
Cir. 2014)).

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No. 20-2733 7
1. Political Retaliation
“The First Amendment generally prohibits government
officials from dismissing or demoting an employee because of
the employee’s engagement in constitutionally protected po-
litical activity.” Heffernan v. City of Paterson, 136 S. Ct. 1412,
1416 (2016).
We apply a burden-shifting analysis to determine whether
this First Amendment liberty has been denied. Kidwell v. Ei-
senhauer, 679 F.3d 957, 965 (7th Cir. 2012) (“[A]t summary
judgment, the burden of proof is split between the parties.”).
“To make out a prima facie claim for a violation of First
Amendment rights, public employees must present evidence
that (1) their speech was constitutionally protected; (2) they
suffered a deprivation likely to deter free speech; and (3) their
speech was at least a motivating factor in the employer’s ac-
tions.” Yahnke, 823 F.3d at 1070. There is no dispute that Bless
established the first two elements of his prima facie case, so we
zero in on the third.2
Establishing the third element requires evidence of a
“causal connection … show[ing] ‘that the protected activity
and the adverse action are not wholly unrelated.’” Kidwell, 679
F.3d at 966 (quoting Sauzek v. Exxon Coal USA, Inc., 202 F.3d
913, 918 (7th Cir. 2000)). Circumstantial evidence, from which
the trier of fact can infer retaliation, can satisfy a plaintiff’s
burden. Greengrass v. Int’l Monetary Sys., 776 F.3d 481, 486 (7th
Cir. 2015).
2 At summary judgment, the district court assumed, without deciding,
that the individual defendants could be liable for the Merit Board’s deci-
sion to terminate Bless. We do the same here.

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8 No. 20-2733
In this case, Bless relies solely on circumstantial evi-
dence—namely, the timing of certain events—to show that his
political activity was a motivating factor in the decision to ter-
minate his employment. See Kidwell, 679 F.3d at 966 (“Circum-
stantial evidence may include suspicious timing … .”). Bless
was elected to the McHenry County Board as a Republican in
November 2008; he submitted secondary employment forms
for his county seat to the Sheriff’s Office in January 2009; Bless
returned to work and submitted secondary employment
forms for the county seat in November 2010; the Sheriff’s Of-
fice transferred him to a night shift further from his home
upon his return to work; the Sheriff’s Office was released
from a consent decree monitor in January 2011; and adminis-
trative charges were filed against Bless in May 2011. The im-
plication, Bless maintains, is that the Sheriff’s Office essen-
tially demoted him after it became aware of his position as a
Republican county commissioner and then initiated his re-
moval as soon as it was free of a federal monitor’s oversight.
“[F]or a suspicious-timing argument alone to give rise to
an inference of causation, the plaintiff must demonstrate that
‘an adverse employment action follows close on the heels of
protected expression, and the plaintiff [must] show that the
person who decided to impose the adverse action knew of the
protected conduct.’” Id. (alteration in original) (quoting Lal-
vani v. Cook County, 269 F.3d 785, 790 (7th Cir. 2001)).
The district court was skeptical that the decisionmakers
here even knew about Bless’s political activity, much less that
they were motivated by it. But even assuming that they were
aware of his political activity, nothing about this timeline sug-
gests to us that his political activity was a motivating factor in
the Merit Board’s decision because the adverse employment

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No. 20-2733 9
action is too distant from the protected activity to fairly be
considered “close on [its] heels.” Indeed, “it is clear from our
case law that the time period between the protected activity
and the adverse action must be ‘very close,’”—as in “no more
than a few days.” Id. (quoting Loudermilk v. Best Pallet Co., 636
F.3d 312, 315 (7th Cir. 2011)). Given the lapse of several
months between Bless’s election to office and the adverse ac-
tions, this evidence—without more—is not enough to satisfy
his burden under the third element.
Furthermore, “allowing such an inference would be even
more inappropriate when we consider the context in which
the various complained-of actions were taken.” Id. at 967.
“[W]here a ‘significant intervening event separat[es]’ an em-
ployee’s protected activity from the adverse employment ac-
tion he receives, a suspicious-timing argument will not pre-
vail.” Id. (alteration in original) (quoting Davis v. Time Warner
Cable of Se. Wis., 651 F.3d 664, 675 (7th Cir. 2011)). The context
here involves Bless’s actions in continuing to collect disability
benefits while working two other jobs without having author-
ization for his secondary employment, and these actions oc-
curred closer in time to the adverse employment action than
his protected activity.
Bless also failed to present evidence rebutting the defend-
ants’ nonpolitical reasons for firing him. Even if Bless could
establish a prima facie case, “the burden [would then] shift[] to
the defendant[s] to show that the harm would have occurred
anyway.” Hawkins v. Mitchell, 756 F.3d 983, 996 n.10 (7th Cir.
2014) (quoting Thayer v. Chiczewski, 705 F.3d 237, 251-52 (7th
Cir. 2012)). And when the defendants make that showing of
nonpolitical grounds for the adverse action, the burden shifts
back to the plaintiff to demonstrate that the proffered grounds

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10 No. 20-2733
are “unworthy of credence ‘by providing evidence tending to
prove that the employer’s proffered reasons are factually
baseless, were not the actual motivation for the discharge in
question, or were insufficient to motivate’ the employment
action.” Yahnke, 823 F.3d at 1070 (quoting Carter v. Chi. State
Univ., 778 F.3d 651, 659 (7th Cir. 2015)).
Here, Defendants point to several nonpolitical reasons for
Bless’s termination. The Merit Board found that Bless violated
the Sheriff’s Office’s secondary employment rules, drove his
car while medically restricted from doing so and on disability
leave, and lied to OPR investigators.
The burden therefore would shift back to Bless to present
evidence “demonstrat[ing] a material issue of fact as to pre-
text” for each of those proffered rationales. Hudson v. Chi.
Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004). To meet this
burden, he “must show that either (1) it is more likely that a
discriminatory reason motivated the employer than the prof-
fered non-discriminatory reason or (2) that an employer’s ex-
planation is not credible.” Id. (citing Guerrero v. Ashcroft, 253
F.3d 309, 313 (7th Cir. 2001)). “Pretext is more than a mistake
on the part of the employer; it is a phony excuse.” Id. (citing
Debs v. Ne. Ill. Univ., 153 F.3d 390, 395 (7th Cir. 1998)). Bless
has also failed to meet that burden.
Bless correctly points out that there is some evidence con-
tradicting some of the Merit Board’s reasons for firing him.
For example, Bless’s supervisors and three other officers have
testified that Bless did submit a secondary employment re-
quest form in 2009, contrary to the Merit Board’s findings. But
an error alone does not show pretext. See Barnes v. Bd. of Trs.
of Univ. of Ill., 946 F.3d 384, 389–90 (7th Cir. 2020) (“[P]retext
… is not ‘just faulty reasoning or mistaken judgment on the

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No. 20-2733 11
part of the employer; it is [a] “lie, specifically a phony reason
for some action.”’” (alteration in original) (quoting Argyropou-
los v. City of Alton, 539 F.3d 724, 736 (7th Cir. 2008))). What’s
more, “a showing of pretext alone is not enough; the plaintiff
must also show that the explanations are a pretext for the pro-
hibited animus.” Hitchcock v. Angel Corps., Inc., 718 F.3d 733,
740 (7th Cir. 2013). Bless simply has not presented evidence
that could lead a trier of fact to determine that the Merit
Board’s justifications for firing him were pretext for political
retaliation.
For these reasons, we agree with the district court that
Bless failed to meet his burden of establishing the elements of
his prima facie retaliation case and establishing that the de-
fendants’ proffered nonpolitical reasons for firing him were
pretextual.
2. Race Discrimination
Discrimination cases brought under § 1983 are governed
by the same legal standards as those brought under Title VII.
Steinhauer v. DeGolier, 359 F.3d 481, 483 (7th Cir. 2004).
At summary judgment, the plaintiff must present evi-
dence which, taken as a whole, “would permit a reasonable
factfinder to conclude that the plaintiff’s race … caused the
discharge.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th
Cir. 2016). “[T]he protections of Title VII are not limited to
members of historically discriminated-against groups.”
Hague v. Thompson Distrib. Co., 436 F.3d 816, 820 (7th Cir. 2006)
(quoting Ballance v. City of Springfield, 424 F.3d 614, 617 (7th
Cir. 2005)). But we have modified the traditional McDonnell-
Douglas burden-shifting framework in this context to require
evidence of “background circumstances” supporting a race-

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12 No. 20-2733
discrimination claim brought by a white plaintiff. Id. Thus, to
make a prima facie case at summary judgment:
[Bless] must show that (1) “background circum-
stances exist to show an inference that the employer
has reason or inclination to discriminate invidiously
against whites or evidence that there is something
‘fishy’ about the facts at hand”; (2) he was meeting
his employer’s legitimate performance expectations;
(3) he suffered an adverse employment action; and
(4) he was treated less favorably than similarly situ-
ated individuals who are not members of his pro-
tected class.
Formella v. Brennan, 817 F.3d 503, 511 (7th Cir. 2016) (quoting
Ballance, 424 F.3d at 617). As above, if Bless establishes the
prima facie case, then the burden shifts to the defendants to
offer a “legitimate, non-discriminatory reason for the [ad-
verse employment] decision.” Id. (alteration in original). And
if the defendants make that showing, the burden shifts back
to Bless to demonstrate that the reason is pretext for race dis-
crimination. Id.
We begin and end our analysis at the first prong of the
prima facie case: Bless failed to present evidence from which a
jury could find that there were “background circumstances …
show[ing] an inference that the employer has reason or incli-
nation to discriminate invidiously against whites or evidence
that there is something ‘fishy’ about the facts at hand.” For-
mella, 817 F.3d at 511.
We have found that this prong can be satisfied by evidence
that members of one race were fired and replaced by mem-
bers of another race. Hague, 436 F.3d at 822. We have also ex-
plained that evidence that employers “are under pressure

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No. 20-2733 13
from affirmative action plans, customers, public opinion, the
EEOC, a judicial decree, or corporate superiors imbued with
belief in ‘diversity’” may similarly satisfy this prong. Preston
v. Wis. Health Fund, 397 F.3d 539, 542 (7th Cir. 2005) (citing Hill
v. Ross, 183 F.3d 586 (7th Cir. 1999)). We have also suggested
that “[a] gross disparity in qualifications might be such evi-
dence.” Id.
But Bless has failed to satisfy his burden under this prong.
Bless points out that several people involved in his firing, in-
cluding Sheriff’s Office investigators Henry Hemphill and
Sheryl Collins and officers Dwayne Holbrook and Zelda
Whittler, are outside of his protected class. But those are not
the only relevant actors. Other actors who were heavily in-
volved in the investigation are of the same race, including
Rosemarie Nolan, the Personnel Director, and Joseph Ways,
the Executive Director of OPR. This makeup of individuals
does not suggest that there was racial motivation in the inves-
tigation.
Bless also presents potential comparators—nonwhite em-
ployees who were purportedly treated better than Bless—to
make this showing. But the circumstances involving these
employees differ from Bless’s situation and do not suggest an-
ything “fishy” about the Sheriff’s Office’s disciplinary prac-
tices, much less any “reason or inclination to discriminate in-
vidiously against whites.” Formella, 817 F.3d at 511.
Although “precise equivalence is not required” in a com-
parator, Andy Mohr Truck Ctr. v. Volvo Trucks N. Am., 869 F.3d
598, 604 (7th Cir. 2017), “[a] similarly situated employee must
be ‘directly comparable’ to plaintiffs ‘in all material re-
spects.’” Alexander v. Casino Queen, Inc., 739 F.3d 972, 981 (7th

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14 No. 20-2733
Cir. 2014) (quoting Abuelyaman v. Ill. State Univ., 667 F.3d 800,
810 (7th Cir. 2011)).
Hubert Thompson, who is African American, was found
to have been working one unauthorized job and lied to OPR
about submitting request forms. Although he had a lengthy
disciplinary history, he was not charged with giving a false
statement, and OPR recommended a ten-day suspension. No-
tably, though, he differs in the number of secondary jobs—he
worked one while Bless worked two—and in the facts that he
was not collecting disability benefits at the time nor was med-
ically restricted from driving. These are material differences
when it comes to comparing their respective punishments.
The comparison to the other proffered employees is even
more tenuous. Bless points to African-American individuals
who, for example, violated the secondary employment rules
but were not accused of working while on disability leave or
working multiple jobs. Another was placed back in his previ-
ous assignment when he returned from leave, whereas Bless
was transferred to a different shift in a different district, but
there is no evidence that the comparator violated office poli-
cies, unlike Bless. Others worked unauthorized secondary
jobs and received lesser forms of discipline than Bless—but
there is no evidence that they were receiving disability bene-
fits or worked more than one secondary job.
As it stands, there are clear differences between Bless’s ac-
tions and those of the proposed comparators. Because Bless
did not present evidence showing that there were back-
ground circumstances “show[ing] an inference that the em-
ployer has reason or inclination to discriminate invidiously
against whites or evidence that there is something ‘fishy’
about the facts at hand,” Formella, 817 F.3d at 511, he failed to

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No. 20-2733 15
meet his burden of establishing his prima facie case of race dis-
crimination.
Even if Bless could establish the prima facie case, his claim
fails for the additional reason that Bless failed to present evi-
dence showing that the proffered nonracial reasons for firing
him were pretextual. As explained above, the defendants’ rea-
sons for firing Bless were that he (1) violated the Sheriff’s Of-
fice’s rules about secondary employment; (2) regularly drove
his car while medically restricted; and (3) lied to OPR investi-
gators while making a sworn statement. Even if those conclu-
sions were mistaken, Bless failed to present evidence that they
were dishonest. See Steward v. Henderson, 207 F.3d 374, 378
(7th Cir. 2000) (“The focus of a pretext inquiry is whether the
employer’s stated reason was honest, not whether it was ac-
curate, wise, or well-considered.”). Nor is there any evidence
suggesting that these reasons were otherwise a pretext for ra-
cial discrimination. See Hitchcock, 718 F.3d at 740.
Ultimately, there is no evidence from which a jury could
conclude that race was a factor in the decision to fire Bless, so
he failed to meet his burden of establishing the prima facie
case for race discrimination. We therefore conclude that the
district court did not err in granting summary judgment to
the defendants on this claim.
III. CONCLUSION
For the reasons above, the district court did not err in
denying Bless the opportunity to depose Sheriff Dart, and De-
fendants are entitled to summary judgment on Bless’s claims
of political retaliation and race discrimination. We AFFIRM.

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