ownership interest in Bloomington Anesthesiology. Cox responded
on behalf of Bloomington Anesthesiology, stating that the board
had not yet determined whether they would extend Taimoorazy an
offer to purchase an interest in the corporation.
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
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.
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
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 provide that a contract is unenforceable if it is
not capable of being performed within one year. Id.
Here, Taimoorazy alleges that under the oral agreement between
himself and Wang, he was to work for two years at a lower rate of
pay and then be made an equal partner upon the expiration of the
two-year term. Thus, it is clear that the purported partnership
agreement contemplated a performance duration of longer than one
year, bringing the alleged agreement squarely within the bar of
the Statute of Frauds. See Cargo, Inc. v. Allstates Air Cargo,
Inc., 1998 WL 601910, at *2 (N.D.Ill. Sept.9, 1998), citing
Sinclair v. Sullivan Chevrolet, Co., 45 Ill. App.2d 10, 14-15,
195 N.E.2d 250 (3rd Dist. 1964); Gilliland v. Allstate Insurance
Co., 69 Ill. App.3d 630, 26 Ill.Dec. 444, 388 N.E.2d 68, 70 (1st
Dist. 1979) (finding that "[i]f a contract stipulates a duration
of service greater than one year, the fact that either party
could have terminated the contract within one year will not
remove the Statute of Frauds barrier"); Doerrfeld v. OAO
International Corp., 1998 WL 142393, at *3 (N.D.Ill. March 24,
Taimoorazy attempts to avoid the application of the Statute of
Frauds by arguing that his full performance under the oral
agreement takes this case outside the statute. In support of this
argument, he cites Kozasa v. Guardian Elec. Mfg. Co.,
99 Ill. App.3d 669, 54 Ill.Dec. 920, 425 N.E.2d 1137, 1144 (1st Dist.
1981), for the proposition that "an oral contract is not
unenforceable under the statute of frauds if the contract has
been completely performed by one party." Thus, he contends that
since he fully performed his obligations under the agreement by
working for two years at a reduced salary, the Statute of Frauds
should not bar him from enforcing Wang's promise to make him a
full partner. However, none of the cases cited by Taimoorazy
involves an employment situation that was otherwise governed by a
comprehensive written employment contract requiring the same
performance, which the Court finds to be a significant
As noted by Defendants, the so-called "full performance
doctrine" relied on by Taimoorazy is a common law rule that
operates "in the form of an estoppel." Strzelecki v. Schwarz
Paper Co., 824 F. Supp. 821, 825 (N.D.Ill. 1993), citing Meyer
v. Logue, 100 Ill. App.3d 1039, 56 Ill.Dec. 707, 427 N.E.2d 1253,
1256-57 (1st Dist. 1981); Zayre Corp. v. S.M. & R. Co., Inc.,
882 F.2d 1145, 1155 (7th Cir. 1989). This is important because
courts have consistently held that a party may not maintain an
action for estoppel "where the performance which is said to
satisfy the requirement of detrimental reliance is the same
performance which supplies the consideration for the contract."
Lippert Marketing, Ltd. v. Kingwood Ceramics, Inc., 1998 WL
699023, at *24 (N.D.Ill. Oct.5, 1998), citing Prentice v. UDC
Services, Inc., 271 Ill. App.3d 505, 207 Ill.Dec. 690,
648 N.E.2d 146, 151 (1st Dist. 1995). In other words, "[o]nce a
written contact is found to exist covering the subject matter of
the alleged promises," the doctrine of estoppel is inapplicable.
Id. "When there is an express contract governing the
relationship out of which the promise emerged, and no issue of
consideration, there is no gap in the remedial system for
promissory estoppel to fill." All-Tech Telecom, Inc. v. Amway
Corp., 174 F.3d 862, 869-70 (7th Cir. 1999).
In this case, it is undisputed that on or about November 21,
1994, Taimoorazy entered into a written Employment Agreement with
Bloomington Anesthesiology. Section 1.1. of this agreement set
forth a term of employment commencing on February 1, 1995, and
expiring on January 31, 1997. Article 21 of this agreement
further stated that upon the successful completion of the term of
employment, Bloomington Anesthesiology anticipated offering
Taimoorazy the opportunity to become a shareholder in the
corporation by purchasing shares, but was under no obligation to
do so; nor was Taimoorazy under any obligation to buy the shares
in the event that they were offered. Thus, there is an express
contract governing the relationship out of which the alleged
promise emerged, leaving no gap in the remedial system for an
estoppel-like remedy to fill.
Moreover, the performance Taimoorazy contends supported the
oral promise of partnership is the same performance that he was
obligated to render under the plain and unambiguous terms of his
written Employment Agreement, which includes no reference to the
purported offer of partnership but rather clearly states that at
the end of his term of employment, he may be offered the
opportunity to buy stock in the corporation. There is a
presumption under Illinois law that written contracts include all
material terms agreed upon by the parties, and where a written
contract appears complete and unambiguous on its face, "extrinsic
evidence of a prior or contemporaneous agreement is not
admissible to alter the terms" of the written contract.
Commonwealth Eastern Mortgage Co. v. Williams, 163 Ill. App.3d 103,
114 Ill.Dec. 360, 516 N.E.2d 515, 520 (1st Dist. 1987).
Taimoorazy admits that the conversation in which Wang stated
that he would work with less salary for two years and that would
constitute his buying in to become a partner "just like one of
us" occurred prior to signing the Employment Agreement. Thus, the
Court finds that the parol evidence rule would also bar any
consideration of the argument that the alleged oral
representation between Taimoorazy and Wang made prior to the
execution of the written agreement was unaffected by or modified
the provisions of the written Employment Agreement. If Taimoorazy
was concerned that Article 21 of the Employment Agreement did not
fully or accurately reflect his understanding of what would
happen following his two-year term of employment, he had ample
opportunity to correct this before signing the contract.
Following the signing of the Employment Agreement, Taimoorazy
relies on instances in which he was referred to by various
persons by the term "partner" or some variant of that term.
However, he is unable to set forth any post-Employment Agreement
evidence indicating that the mere use of the term "partner"
entitled him to an automatic ownership interest in the
Bloomington Anesthesiology corporation in contravention of the
process specifically set forth in Article 21 of the Employment
Agreement. Even assuming that these vague comments were
sufficient to be considered a subsequent attempt to modify the
contract, Article 13 of the Employment Agreement expressly
No amendment of this Agreement will be valid or
enforceable unless such amendment is reduced to
writing and thereafter properly executed by the
Employer and Employee.