Michael Outley v. City of Chicago

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 24, 2023
Decided February 13, 2023
Before
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-2476
MICHAEL OUTLEY,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 13 C 1583
Joan H. Lefkow,
Judge.
O R D E R
Michael Outley, who is Black, worked as an engineer for the City of Chicago,
which declined to promote him. He sued the City and others for race discrimination.
The district court entered summary judgment for the defendants. More than a year
later, Outley moved for relief from judgment based on “fraud on the court.” He accused
the defendants’ counsel of suborning perjury in a statement submitted with the
defendants’ motion for summary judgment. The court denied the motion. We affirm.
Outley has not shown that the statement contained perjury—let alone that the attorneys
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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suborned it or that the statement prejudiced him. Further, we conclude with a note
about the frivolous nature of this appeal.
I. Background
Outley applied several times for a promotion from Assistant Chief Operating
Engineer to Chief Operating Engineer in the City of Chicago’s Department of Water
Management. He never got the promotion. After the City repeatedly rejected him, he
sued the City and city officials in the Water Department and alleged—among other
claims—race discrimination in violation of the Equal Protection Clause of the
Fourteenth Amendment (actionable under 42 U.S.C. § 1983), as well as Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and 42 U.S.C. § 1981.”
The defendants filed a motion for summary judgment that included a declaration
from Jill May, an employee in the Chicago Department of Human Resources. In her
declaration, May stated, “I oversee and facilitate the City’s hiring process by working
with various City departments to prepare testing materials, administer exams, [and]
score and analyze the results.” To prepare the declaration, she reviewed the testing
materials used when Outley applied for his promotion. After explaining this
background, she detailed the three steps of the engineering application process for
some of the years Outley applied: “(1) a multiple choice test on Ethics, Shakman, and
Personnel Rules … , (2) a multiple choice test on Technical and Supervisor skills … , and
(3) a structured oral interview comprised of questions designed to assess supervisory
skills and technical knowledge.” (“Shakman” refers to consent decrees in Shakman v.
Democratic Organization of Cook County, No. 69-cv-2145 (N.D. Ill.), which yielded a court-
approved hiring process.) This process, she said, was later changed to two steps “to
align with best practices and legal testing standards.” The signature block of her
declaration appears on its own page, separate from May’s written testimony.
The district court entered summary judgment for the defendants. The court
reasoned that the defendants presented nondiscriminatory reasons for not promoting
Outley—namely poor test and interview performance—and that Outley had not
provided evidence for a reasonable jury to find these reasons were pretextual. Outley
did not appeal.
After the judgment in this case, Outley deposed May in another case with
overlapping parties. See Outley v. City of Chicago, No. 17 C 8633 (N.D. Ill.). May testified
that she did not recall “design[ing],” “develop[ing],” “preparing,” or “administering”
the engineering exam. When answering why the hiring process changed from a three-

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step process to a two-step process, May said that “the Department of Human Resources
was no longer under the Shakman [decrees] and the Department wanted to align the
[hiring] process along with the rest of the hiring plan … .”
Returning to this case over a year after the district court had entered judgment,
Outley moved for relief from that judgment for “fraud on the court.” F ED. R. C IV.
P. 60(d)(3). He argued that (1) May had lied about her knowledge of the engineering
hiring process and (2) the defense attorneys submitted her declaration knowing it
was false. For support for the latter, Outley contended that the placement of the
signature block on a separate page “strongly suggest[ed] the nefarious practices of
the” defense attorneys.
The district court denied the motion. It found no contradictions between May’s
declaration and deposition and no evidence that the defense attorneys had done
anything “nefarious.” The court also concluded that Outley had not proved that he
suffered prejudice from this supposed fraud.
Outley appealed, and we limited review to only the postjudgment motion.
II. Analysis
Courts retain the inherent authority to set aside, at any time, judgments that
resulted from fraud on the court. See F ED. R. CIV. P. 60(d)(3). This authority is distinct
from Rule 60(b)(3), which permits district courts to set aside judgments for “fraud”
identified within one year of the judgment. Fraud on the court under Rule 60(d)(3) must
be fraud that could not have been discovered with a “diligent inquiry” within a year of
judgment. In re Golf 255, Inc., 652 F.3d 806, 809 (7th Cir. 2011). Such fraud could be an
attorney suborning perjury, but perjury by a witness, without the knowing involvement
of an attorney, is not fraud on the court. Id. at 809–10. Lawyers have methods to expose
lying witnesses—for example, through discovery or cross-examination—but lawyers
are not subject to those methods, thus making it harder to ferret out attorney
misconduct. Fraud on the court also requires prejudice to the adverse party. Wickens v.
Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010). It is thus “a high bar,” Kennedy v. Schneider
Elec., 893 F.3d 414, 420 (7th Cir. 2018), reserved for only “the most extraordinary and
egregious circumstances.” Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068,
1080 (7th Cir. 2016). Finally, a movant must prove the fraud by clear and convincing
evidence, and we review the district court’s ruling for an abuse of discretion. Kennedy,
893 F.3d at 418–19.

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On appeal, Outley argues that the district court abused its discretion when it
ruled that the defense attorneys did not commit fraud on the court through May’s
declaration. For several reasons, we conclude that the court did not abuse its discretion.
First, no fraud occurred because May’s deposition testimony is consistent with
her declaration. In the first of the two inconsistencies that Outley tries to create, he
argues that May testified in the deposition to having less knowledge about the testing
process than she acknowledged in the declaration. He is incorrect. In the declaration,
May said that she works with all departments to help them prepare, administer, and
score employment tests generally, and, in preparation for this litigation, she reviewed
the Water Department’s materials for its engineering exam. At the time of her
deposition, May said that she did not recall designing, administering, or scoring the
engineering exam at issue. It is not inconsistent for May to say that she was familiar
with the engineering exam’s process through her (1) work with exams generally and
(2) review of materials about that exam for this litigation—while at another time saying
she did not devise that particular exam. In other words, “I am familiar with this
process” does not contradict “I did not develop this process.” Outley’s real qualm might
be that May is not the best person to testify about the engineering exam and the related
hiring process. But that is a far cry from perjury.
The second supposed inconsistency concerns May’s testimony about the testing
format changing from a three-step to a two-step process. According to Outley, May said
in her declaration that the process changed to align with testing practices and legal
requirements, and in her deposition she said the process changed because the City was
no longer under the Shakman decrees. But this is not an accurate reflection of the record.
In both statements, May testified that the City wanted to adopt best practices for hiring.
In her deposition, May simply added that the City was able to do so because it was no
longer bound by Shakman.
Even assuming the statements in May’s affidavit and her later deposition
testimony were direct contradictions of each other, that would fall well short of proving
that she had deliberately lied in her affidavit. See United States v. Dunnigan, 507 U.S. 87,
94 (1993) (“A witness testifying under oath or affirmation violates this statute if she
gives false testimony concerning a material matter with the willful intent to provide
false testimony … .” (emphasis added)). Witnesses often give contradictory testimony
for innocent, quintessentially human reasons, such as a lapse in memory or a
misunderstanding of the question. See id.

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Even if May perjured herself, there would still be insufficient evidence for fraud
on the court. “Mere” perjury of a witness is not enough; an attorney had to have
suborned it. Golf, 652 F.3d at 809–10; Kennedy, 893 F.3d at 419. Outley contends that the
proof that the defense attorneys suborned perjury is that the signature block on May’s
declaration is on its own page. This, Outley says, “suggests” that the attorneys got
May’s signature first and then used it as a blank check to write whatever they wanted in
the declaration. But a “suggestion” (which is just speculation), falls far short of clearing
the “high bar” to prove fraud on the court by clear and convincing evidence. Kennedy,
893 F.3d at 418–19; Foxx, 815 F.3d at 1080.
Finally, even if Outley had shown that the defendants’ counsel suborned perjury,
he would still lose because he has not shown that this purported fraud on the court
prejudiced him. See Wickens, 620 F.3d at 759. The argument section of Outley’s opening
brief (approximately three pages long) discusses the supposedly perjurious statements
and how defense counsel allegedly suborned them; the discussion does not clearly
highlight any potential prejudice. (Although we can make out an inkling of a prejudice
argument, we expect arguments regarding a necessary condition to be more prominent
in a brief.) We thus agree with the defendants that Outley failed to develop—and thus
waived—any prejudice argument. Greenbank v. Great Am. Assurance Co., 47 F.4th 618,
629 (7th Cir. 2022); see also F ED. R. A PP . P. 28(a)(8)(A).
III. Frivolous Appeal
This appeal is frivolous. We do not, however, think sanctions are appropriate.
We sense that, Outley’s attorney (who also represented him in the district court)
sincerely believes her adversaries sabotaged her client’s case by submitting evidence
they knew to be false. Thus, we do not see an “indication of the appellant’s bad faith
suggesting that the appeal was prosecuted with no reasonable expectation of altering
the district court’s judgment[,] … for purposes of delay or harassment[,] or out of sheer
obstinacy.” H.A.L. NY Holdings, LLC v. Guinan, 958 F.3d 627, 636–37 (7th Cir. 2020). Still,
we think it prudent to inform counsel that this appeal is frivolous and explain why.
An appeal is frivolous when the outcome is “obvious,” BLET GCA UP v. Union
Pac. R.R. Co., 988 F.3d 409, 414 (7th Cir. 2021), because a party’s “arguments … are so
insubstantial that they are guaranteed to lose.” Wegbreit v. Comm'r, 21 F.4th 959, 964
(7th Cir. 2021); see also United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014) (“Most
claims or arguments held to be ‘frivolous’ are … so clearly blocked by statute,
regulation, binding or unquestioned precedent, or some other authoritative source of
law that they can be rejected summarily.”). This appeal meets this definition because it

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loses for several independent reasons and Outley’s attorney was not remotely close to
salvaging any of these flaws. First, counsel failed to brief a necessary element—
prejudice—for her client to win this appeal. And omitting a necessary condition makes
the result of any legal issue “obvious.” Second, Outley accused May of perjury and
defense counsel of suborning it. These are serious accusations of criminal misconduct.
See 18 U.S.C. §§ 1621–22. The best (indeed the only) evidence counsel could cite were
two alleged inconsistencies in a lay witness’s testimony taken years apart and an oddity
in pagination. These arguments are “guaranteed to lose” because she leaves a gulf of
speculation between the evidence she provided and the evidence sufficient to clear her
client’s burden. Hefty accusations require hefty evidence, and counsel did not provide
that here.
IV. Conclusion
We therefore AFFIRM the district court’s denial of Outley’s postjudgment
motion.

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