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06/28/96 RAYMOND PIERSON v. UNIVERSITY ORTHOPEDICS

June 28, 1996

RAYMOND PIERSON, M.D., PETITIONER-APPELLANT,
v.
UNIVERSITY ORTHOPEDICS, S.C., RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Aaron Jaffe, Judge Presiding.

Released for Publication August 13, 1996.

The Honorable Justice O'brien delivered the opinion of the court: Cahill, J., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Petitioner, Raymond Pierson, M.D., filed a motion for preliminary injunction to prevent respondent, University Orthopedics, S.C., from terminating his employment until the Illinois Department of Human Rights (IDHR) rendered a decision on his charge of discrimination. The circuit court denied the motion without conducting an evidentiary hearing. Petitioner appealed.

Dr. Pierson, an orthopedic surgeon, began his relationship with University Orthopedics as an employed physician on April 17, 1987. Several years later he became an Associate Partner. On or about July 1, 1992, and upon execution of a Partnership Agreement, Dr. Pierson became a Senior Partner of University Orthopedics.

Pursuant to the partnership agreement, Dr. Pierson was required to work full-time for University Orthopedics and to assume a full and equal share of its financial obligations. The partnership agreement did not require Dr. Pierson to participate in the day-to-day business affairs and management of the staff. Nor did he, as these responsibilities were reserved for members of the partnership's Executive Committee and its Managing Partner. However, Dr. Pierson, together with the other Senior Partners had the power and authority to determine who would be employed by University Orthopedics as an Employed Physician, Associate or Senior Partner, and to dismiss any of these persons for cause or not for cause.

During 1992 and early 1993, University Orthopedics, by and through its Senior Partners, contemplated asking an orthopedist specializing in hand surgery to join the partnership. Dr. Pierson suggested University Orthopedics hire his wife, Dr. Joanne R. Werntz, to fill this position and actively supported her application for employment. The Executive Committee did not consider Dr. Werntz, but negotiated an employment agreement with another hand surgeon.

On May 21, 1993, the Executive Committee unanimously voted to expel Dr. Pierson from University Orthopedics. The decision was reaffirmed on July 23, 1993. On July 27, 1993, the Executive Committee unanimously resolved to effect the dismissal of appellant, purportedly without cause, effective as of November 24, 1993.

On or about September 3, 1993, Dr. Werntz filed a charge of discrimination at the Illinois Department of Human Rights. In her charge, Dr. Werntz alleged that University Orthopedics refused to hire her based upon her sex and marital status. Six weeks later, Dr. Pierson filed his own charge at the Department. In his charge, Dr. Pierson alleged that his dismissal was in retaliation for advocating his spouse's employment and for opposing an illegal "no spouse" policy which prevented Dr. Werntz from being considered or hired by University Orthopedics. Dr. Pierson also pursued a grievance through appropriate internal channels. On November 18, 1993, Dr. Pierson was advised that the termination decision was final and would not be reversed.

Upon learning the termination decision would in fact take effect as of November 27, 1993, Dr. Pierson filed a Verified Petition for Temporary Restraining Order and Preliminary Injunction with the Circuit Court on November 23, 1993. Attached to the Petition was a copy of Dr. Pierson's IDHR charge and an affidavit signed by Rose Mary Bombela, Director of the Illinois Department of Human Rights. Bombela's affidavit stated that "an injunction is appropriately issued in this case pursuant to section 5/7A-104 of the [Illinois Human Rights] Act, 775 ILCS 5/7A-104 [(West 1992)]." Section 5/7A-104 reads, in pertinent part:

Judicial Proceedings. (A) Temporary Relief. (1) At any time after a charge is filed, the Department or complainant may petition the appropriate court for temporary relief, pending final determination of the proceedings under this Act, including an order or judgment restraining the respondent from doing or causing any act which would render ineffectual an order which the commission may enter with respect to the complainant. Whether it is brought by the Department or by the complainant, the petition shall contain a certification by the Director that the particular matter presents exceptional circumstances in which irreparable injury will result from a civil rights violation in the absence of temporary relief.

(2) The petition shall be filed in the circuit court for the county in which the respondent resides or transacts business or in which the alleged violation took place, and the proceedings shall be governed by Part I of Article XI of the "Code of Civil Procedure," as amended. Except as provided in subsection (A)(3), the court may grant temporary relief or a temporary restraining order as it deems just and proper.

775 ILCS 5/7A-104(A)(1) and (2) (West 1992) (footnote omitted). Neither Dr. Pierson's Verified Petition for Certification from the Illinois Department of Human Rights nor any document outlining the Department's findings of fact supporting ...


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