A lawyer in a federal discrimination case against Chicago sued city attorneys and the judge, accused of violating a man’s constitutional right to a fair trial.
On October 11, Attorney Calvita Frederick filed a complaint against federal judge Gary Feinerman, who declared a mistrial in the case of Outley v. City, and city attorneys Scott Crouch, John Catalano, Rena Honorow; and Robert Mussen, the chief operating engineer at the Lexington Pumping Station on the West Side.
Frederick alleged that during a three-day trial, Judge Feinerman violated the constitutional due process rights of Michael Outley, who said a culture of racism under his supervisor, Mussen, forced him to retire in 2017.
He began working at the Lexington Pumping Station when it opened in the early 1990s. A highly-trained engineer, Outley rose through the ranks during his 24- year career at the pumping station before his retirement.
That trial resulted in a mistrial September 27 at the Northern District Court of Illinois, where Frederick represented Outley in his discrimination case against the city of Chicago.
In that lawsuit, Outley said in the final years of his career, he experienced a culture of racism at work, where he was called a “monkey” and “nigger” and “boy” while under the leadership of Mussen.
In 2017, Outley filed a lawsuit alleging that a hostile work environment at the facility made his final year unbearable before his planned retirement on July 16, 2017.
As the chief operating engineer overseeing the entire Lexington Pumping Station, Mussen, who supervised Outley as well as engineers and laborers, was named as a defendant. After years of discovery hearings, Outley’s discrimination trial finally went to trial on September 23. Things did not go well for Frederick and her client from the start.
In her opening argument, Frederick was accused of making statements that drew numerous objections from city attorneys and Judge Feinerman. City attorneys, citing Judge Feinerman’s limited court order,objected to her telling the jurors that her client’s case was about retaliation.
Judge Feinerman also barred Frederick from presenting reports from the city’s Office of InspectorGeneral, which in 2017, uncovered widespread racism in the Water Department, where racist emails, including one with a Ku Klux Klan coat on a stick in a watermelon patch, was sent to high-ranking staff members.
After Frederick’s opening arguments continued to draw objections from city attorneys, Judge Feinerman made the rare move of stopping Frederick from continuing to make her opening arguments.
But when city attorney Catalano in his opening argument blamed Outley for a cancer-causing glycol spill that occurred at the pumping station on July 17, 2017, Frederick filed a motion for a mistrial, accusing Catalano of making a false statement. She cited city documents that show Outley was never blamed or accused of wrongdoing for the spill.
Frederick was also shocked that the incident was discussed during the trial after both sides agreed not to mention it during the proceedings. Documents show Frederick was also barred from asking Mussen questions about the glycol spill in depositions, a move that Judge Feinerman said he should have decided in court rather than being done by an attorney in a private setting.
All this led Frederick to file a motion on Sunday, September 25, asking Judge Feinerman to declare a mistrial.
Frederick’s request for a mistrial went unanswered. Feinerman—in court and in transcripts—said he never read Frederick’s request, and the trial went on as scheduled.
On Monday, September 26, the trial spent much of the day on Outley’s testimony. He talked about his extensive education and training to operate boilers and chillers before he served as an engineer at the U.S. Post Office main headquarters in Chicago and at the Chicago Housing Authority.
His testimony that day drew many objections from city attorneys and warnings from Judge Feinerman who accused Frederick of not reading his order that included statements or questions not to be asked during the trial.
The next day on Tuesday, September 27, city attorneys had Judge Feinerman declare a mistrial before the trial proceedings resumed that morning.
They once again accused Frederick of making numerous inadmissible statements and told the judge that it was impossible for them to undo any alleged damage that Frederick had done to Mussen’s reputation in the eyes of the jurors, one of whom asked why the defendant’s lawyers were preventing Frederick from talking about the issues.
City lawyers representing Mussen accused Frederick of possessing a “willful ignorance and just a dereliction of the responsibilities” to give Mussen a fair trial.
Judge Feinerman agreed and scolded Frederick for making “frivolous” motions and repeatedly violating his order restricting inadmissible statements. On top of declaring a mistrial, Judge Feinerman dismissed the case with prejudice, meaning Frederick can’t file Outley’s discrimination case again.
“I’ve been here just over 12 years,” Judge Feinerman said. “I have never granted a mistrial. This and, if so, if a situation is close to the line, I deny the motion for a mistrial. What happened here isn’t even close to being [close to the] line. I’m backed into a corner. The only correct decision here is to grant a mistrial.”
The mistrial occurred the day Frederick planned to cross-examine Mussen about the statement Catalano made in his opening statement that blamed Outley for the glycol spill at the Lexington Pumping Station.
The incident became an issue in the trial when Catalano made the allegation in his opening argument. For Frederick, the incident was proof that her client was the target of the hostile work environment where he was blamed for something he said he did not do.
Frederick wants Outley’s case back in court. Two weeks after Judge Feinerman declared a mistrial she filed an 86-page lawsuit against him, Mussen and the city attorneys who represented him in court.
In her lawsuit, Frederick argues that her client’s constitutional rights to a fair trial were violated.
“Mr. Outley was forced to go to trial with his naked testimony, “naked” as in uncorroborated by the documents he could have introduced in support of his testimony,” the lawsuit says.
According to Frederick’s lawsuit, “The Defendants welcomed and cheered Defendant Honorable Judge Feinerman’s ruling on Plaintiff’s Motion…while at the same time planned to disregard the ruling altogether and bring up their false version of the Glycol incident to damage Mr. Outley’s testimony and tip the scale in Defendant’s favor in the ‘he said/he said’ [sic] trial they had pushed for and obtained, exactly as they wanted, as a direct result of Defendant Honorable Judge Feinerman’s ruling.”
Frederick also noted her allegedly blocked efforts to question Mussen about the glycol spill that Catalano blamed on Outley in his opening argument.
The lawsuit seeks numerous reliefs, including against the admissibility of the city’s Equal Employment Opportunities. The suit also asks the court to “declare when Defendant Honorable Judge Feinerman abused his discretion and ruled against the law regarding the hearsay nature of the OIG reports, he violated Mr. Outley’s due process rights secured by the Fifth and Fourteenth Amendment to the United States Constitution.”
The suit also said the defendants “violated a duty of candor to the tribunal when they tried to introduce into evidence a false statement regarding Mr. Outley’s alleged responsibility for the glycol incident, a statement that they obstructed discovery upon, and never even attempted to clear after the evidence in Plaintiff’s Motion for Mistrial showed that the statement was false.”