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
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
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
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 ...