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November 28, 2000


The opinion of the court was delivered by: Mihm, District Judge.


This matter is now before the Court on motions for summary judgment by both Plaintiffs and Defendants. For the reasons set forth below, Plaintiffs' Motion for Summary Judgment on Counts I and II of Defendants' Counterclaims [# 47] is GRANTED, and Defendants' Motion for Summary Judgment [# 67] is GRANTED IN PART and DENIED IN PART.


In Counts I and II of the Complaint, Plaintiffs claim that they were discriminated against on the basis of their national origin in violation of Title VII, 42 U.S.C. § 2000e, et seq. Thus, this action invokes the federal question jurisdiction of the Court pursuant to 28 U.S.C. § 1331.


In early 1994, Defendants, Drs. Stanley Aung ("Aung"), Fang Tse Lu ("Lu"), Peggy Mulcahy ("Mulcahy"), Witold Rybicki ("Rybicki"), and Renyan Wang ("Wang") (hereinafter referred to collectively as the "Defendant Doctors"), provided nonexclusive anesthesiology services at St. Joseph Medical Center ("St. Joseph") in Bloomington, Illinois. In May 1994, they wrote to a top administrator at St. Joseph proposing that they incorporate and enter into a contract that would allow them the exclusive right to provide these services. Thereafter, the Defendant Doctors formed the Illinois corporation of Bloomington Anesthesiology Service, Ltd. On July 14, 1994, each of them were issued 20 shares of stock in the corporation. They took action to elect officers; Wang was elected president. Although Plaintiff's do not dispute that Bloomington Anesthesiology was formed as a corporation, they further allege that Drs. Aung, Lu, Mulcahy, Rybicki, and Wang also formed a partnership at this time and interacted with each other as partners.

Each of the Defendant Doctors entered into an Employment Agreement with Bloomington Anesthesiology to provide professional services on behalf of the corporation. Bloomington Anesthesiology subsequently entered into a contract with OSF Healthcare System, the operator of St. Joseph, to provide exclusive anesthesia services to the hospital from September 1994 through February 1998.

In September 1994, the Defendant Doctors held a meeting at which the possibility of extending an offer of employment to Plaintiff Taimoorazy ("Taimoorazy") was discussed. An Employment Agreement was prepared and presented to Taimoorazy by Wang and was ultimately executed. Taimoorazy contends that Wang made representations that he would become part of the "partnership" after two years of employment, and further asserts that after the expiration of two years, he was congratulated by Wang, Mulcahy, Aung, and Rybicki and told he was then a partner. He then began receiving draws of $20,000.00 per month, just as the Defendant Doctors did, his vacation was increased to the same level of six weeks per year, and his salary was increased to $240,000.00 per year, which is the same salary that the Defendant Doctors were making.

On or about July 1, 1996, Plaintiff Benyamin ("Benyamin") also executed an Employment Agreement with Bloomington Anesthesiology.

The contract between Bloomington Anesthesiology and OSF/St. Joseph provided that Bloomington Anesthesiology would designate an acceptable physician to serve as the Medical Director of Anesthesia at St. Joseph. On July 1, 1997, Taimoorazy was designated to succeed Mulcahy in this position. As Medical Director, he was responsible for overseeing the quality of patient care provided by anesthesiologists at St. Joseph and reporting matters relating to the quality of patient care.

In November 1997, Taimoorazy attended a meeting with Bloomington Anesthesiology's accountant, who informed him that he was not a partner. When Taimoorazy questioned this, he was told to call the corporation's attorney, Clay Cox ("Cox"). In a telephone conversation, Cox confirmed his understanding that Taimoorazy was not a partner. After receiving this information, Taimoorazy and Benyamin had a meeting with Wang and Aung, during which they confirmed that Taimoorazy was a partner and that they would resolve the confusion regarding his partnership within two weeks. When questioned by Benyamin after the two weeks had passed, Wang purportedly stated, "I think we have done everything we were supposed to do according to the contract and we are just going to stick with the contract." (Benyamin Dep. at 116-17.)

On February 2, 1998, Taimoorazy and Benyamin received letters indicating that their employment by Bloomington Anesthesiology was terminated immediately pursuant to Section 10.1 of their Employment Agreements. The letters went on to state that each would be subject to a restrictive covenant which prohibited them from practicing medicine in either McLean or Livingston County, Illinois, for two years following the termination, as provided in Article 20 of the Employment Agreement.

On May 8, 1998, Taimoorazy and Benyamin incorporated Anesthesiology Consultants, Ltd.; each was issued 1,000 shares of stock in the corporation. Shortly thereafter, their applications for privileges at BroMenn Hospital in Bloomington were approved, and they began working at BroMenn on May 18, 1998.

On June 25, 1999, Plaintiffs commenced this action. In Counts I and II of the Complaint, Taimoorazy and Benyamin, respectively, allege employment discrimination on the basis of national origin in violation of Title VII. Count III asserts a claim on behalf of Taimoorazy for wrongful expulsion/breach of fiduciary duty under the Illinois Uniform Partnership Act. In Count IV, Taimoorazy alleges a state law claim for breach of contract, while Benyamin alleges the same claim in Count V. Count VI is a state law claim by Taimoorazy for retaliatory discharge, and Count VII is a state law claim by both Plaintiffs for intentional interference with prospective contractual relations. Defendants then filed a Counterclaim, in which Count I alleges a violation of a non-competition restriction by Taimoorazy and Count II alleges a similar violation by Benyamin.

Both Plaintiffs and Defendants have now filed Motions for Summary Judgment which are fully briefed and ready for resolution. Defendants seek judgment as a matter of law on Counts III, IV, VI and VII of the Complaint, while Plaintiffs seek summary judgment on Counts I and II of the Counterclaim. This Order follows.


Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may meet its burden of showing an absence of disputed material facts by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).

If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Federal Rule of Civil Procedure 56(e) requires the nonmoving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Nevertheless, this Court must "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). Summary judgment will be denied where a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).


I. Illinois Partnership Act

In Count III, Taimoorazy alleges that the Defendant Doctors' failure to abide by their oral promise to share equally in the profits and surplus of the partnership that he contends existed, as well as the management and conduct of such partnership, violated the Illinois Partnership Act, 805 ILCS 205/18, et seq. Defendants contend that any such claim is barred by the Statute of Frauds.

Under Illinois law, "[n]o action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless . . . in writing and signed by the party to be charged." McInerney v. Charter Golf, Inc., 176 Ill.2d 482, 223 Ill.Dec. 911, 680 N.E.2d 1347, 1351 (Ill. 1997), citing 740 ILCS 80/1. Courts have interpreted this provision to ...

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