Jokich v. Rush Univ. Med. Ctr.

PETER JOKICH, M.D., FSBI, FACR, Plaintiff, v. RUSH UNIVERSITY MEDICAL CENTER, Defendant.

Case No. 18 C 7885

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 13, 2019

Judge Joan H. Lefkow

OPINION AND ORDER

Dr. Peter Jokich filed suit against Rush University Medical Center (Rush), bringing claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34 (the ADEA) (count I), Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, et seq. (Title VII) (count II), and the Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1-101 (IHRA) (count III) for retaliation against Dr. Jokich. He also filed breach of contract claims based on Rush's alleged breach of Dr. Jokich's employment agreements (count IV) and the Rush Medical Staff Bylaws (count V), and a declaratory judgment claim (count VI) related to the conduct alleged in the breach of contract claims. Rush has moved to dismiss counts IV, V, and VI pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 15.) For the reasons stated below, Rush's motion to dismiss is granted in part and denied in part.¹

BACKGROUND²

I. Employment with Rush

Dr. Jokich is a breast imaging radiologist and was the director of the Division of Breast Imaging (DBI) at Rush for the past seventeen years.³ (Dkt. 1 ¶¶ 11, 99.) He has published more than two dozen scholarly articles and book chapters, is one of approximately 118 fellows of the Society of Breast Imaging, and serves on the American College of Radiology/Illinois Radiological Society's Committee of Government Relations - Breast Imaging.⁴ (Id. ¶¶ 12-13.) Dr. Jokich is frequently interviewed for print publications, has been interviewed many times on local and national television programs, and has given both local and national lectures on breast cancer and breast imaging topics. (Id. ¶ 13.) He has also received excellent performance reviews during his tenure at Rush. (Id. ¶ 14.) Dr. Sharon Byrd, the chairperson of the Radiology Department, has conducted Dr. Jokich's performance reviews since she became the chairperson, and in her most recent June 20, 2018 review wrote that "Dr. Jokich has run an excellent breast imaging service."(Id. ¶¶ 100-02.)

Dr. Jokich alleges that he has two employment agreements with Rush: a Faculty Employment Agreement (FEA) and a letter dated August 12, 2016 (the Letter Agreement). (Dkt. 1 ¶ 56.) The FEA is provided to all physicians at Rush and puts its signatories on one-yearcontracts that automatically renew unless the agreement is terminated with at least 120 days' notice. (Id. ¶ 57.) Dr. Jokich signed his FEA in 2012. (Id. ¶¶ 56-57.) The Letter Agreement stated that the "term of this agreement is for four (4) years through June 30, 2020," and that the term of the agreement would be extended two additional years (through June 2022) upon achievement of certain objectives. (Id. ¶ 58; dkt. 1-3.) The letter also stated that Dr. Jokich's "current base compensation and incentive arrangement over the next four (4) years will remain consistent with your current agreement and will have to be approved by the Compensation Committee of the Board of Trustees." (Dkt. 1-3 at 2.) The letter concluded with the statement, "Please indicate your acceptance of this agreement offer by signing in the space below." (Id. ¶ 59; see also dkt. 1-3 at 4.) The dean of Rush Medical College had already signed the letter when Dr. Jokich received it, and he signed the letter in the space provided on August 18, 2016. (Id.) The letter does not mention the FEA. (Dkt. 1 ¶ 60.)

On June 26, 2017, nearly a year after Dr. Jokich signed the Letter Agreement, the dean's office sent Dr. Jokich another pre-signed letter (the Amendment Letter) indicating that the Compensation Committee had "reviewed the compensation and incentive arrangement outlined in [the Dean's] letter to you dated August 12, 2016 (the 'Initial Offer Letter')," and "decided that we must establish pre-determined plan and growth objectives that are quantitative in nature," which had to be presented to and approved by the committee before the plan could be finalized. (Id. ¶¶ 61-62, 67; dkt. 18 at 53-54.) The letter outlined such objectives and concluded by asking Dr. Jokich to "indicate acceptance of this letter as an amendment to the Initial Offer Letter by signing below." (Dkt. 18 at 54.) Dr. Jokich does not recall receiving this letter and did not sign it. (Dkt. 1 ¶¶ 61, 66, 70; see also dkt. 18 at 54.)

II. Administrative Suspension

Beginning in or around 2016, Dr. Jokich began to voice concerns to Rush management about various practices that he deemed to be discriminatory. (Id. ¶17.) He complained that Rush often demoted or terminated older physicians and chose not to recruit senior breast specialists, that the institution did not treat Mexican-American employees fairly and had a dearth of Hispanics in top executive positions, and that Rush discriminated against women. (Id. ¶¶ 17-21.) He also put some of these complaints in writing. For example, on October 4, 2016, Dr. Jokich cosigned a letter to Dr. Robert DeCresce (a pathologist, the director of Rush Medical Laboratories, and the acting director of the Rush University Cancer Center) voicing concern over Rush's decision not to renew the contract of a nationally recognized female breast radiation oncologist. He was later told this letter "ruffled feathers" within Rush. (Id. ¶¶ 18, 33, 103-04.) In mid-June of 2018, he also made a written complaint to Rush's senior management listing what he believed to be discriminatory practices by the institution. (Id. ¶ 21.)

Around this same time, Dr. Jokich also voiced his opinion that Rush was sacrificing patient care for the benefit of business interests and profits. (Id. ¶ 22.) Specifically, Dr. Jokich advocated for Rush to invest in screening breast ultrasound technology to increase the cancer detection rate in dense breast tissue but was met with repeated resistance or silence. (Id. ¶¶ 25, 27.) Dr. Jokich felt such technology was important given the growing recognition that women with dense breasts require additional or supplemental screening because dense breast tissue decreases the sensitivity of traditional mammography. (Id. ¶¶ 23-24.)

Dr. Jokich expressed further concerns with a technology called 3D/Tomosynthesis mammography, which Rush has installed at several of its locations. (Id. ¶ 28.) According to Dr. Jokich, this technology detects far fewer cancers in dense breasts than ultrasound technology andexposes patients to more than twice the overall radiation dose of a standard mammogram. (Id.) In a May 22, 2018 email to all attendees of a Rush multidisciplinary breast conference, Dr. Jokich made his concerns known,

There are also ethical issues involved with the use of 3D/tomo. Should there be informed consent for a procedure with double the radiation dose of the standard 2D exam? Are we double radiating patients without discussing risks and benefits with them and their physicians? Do we want the primarily minority and low-income population at [Rush Oak Park Hospital] potentially harmed (double radiated) for business, market share or research reasons? . . .

It is a sad state of affairs when at the "new" Rush, administrators, business people, non-clinical nurses and lawyers, and ultimately the Board of Trustees, are making all the major decisions based on money and business concerns, and not the working physicians, who are the only ones, it appears, concerned with what is truly best for our patients, and who really have the Rush mission embedded in our hearts, which is to improve the health of the communities that we serve.

(Id. ¶ 29; Dkt. 18 at 7-8) (emphasis in original).⁵

Four days later, on May 26, 2018, Dr. DeCresce wrote an email to Rush's senior vice president of human resources (copying the dean of Rush Medical College) stating, "I would like to inform you that I have made a decision to terminate Dr. Peter Jokich." (Id. ¶ 30.) But on July 1, 2018, Dr. Jokich had his "Clinical Privileges" renewed by the Medical Staff and the Board of Trustees, based on the Medical Staff's assessment of his medical skills and good medical citizenship. (Id. ¶¶ 15, 30, 96-97.) Then, on August 22, 2018, Dr. DeCresce sent Dr.Jokich a letter informing him that, (1) effective immediately, he was no longer the director of the DBI; (2) his salary would be decreased by approximately $200,000, a level Rush determined after researching reported salaries paid to experienced breast imaging physicians; (3) he would be placed on paid leave until June 30, 2019, the date on which (in Rush's view) Dr. Jokich's contract expires; and (4) he was not to communicate on Rush official business with anyone, including Rush leadership, department members, or other medical staff members, and did not have authority to act or speak on behalf of Rush. (Id. ¶¶ 32-33; see also dkt. 1-4.)

III. Litigation History

Dr. Jokich originally brought a breach of contract claim in the Circuit Court of Cook County for breach of his employment agreements. (See dkt. 18 at 9-145.) He sought a TRO, which was denied by the state court judge in a written order after a hearing. (See id. at 146-252.) That decision was subsequently affirmed by the Illinois Appellate Court. (Id. at 278.) Dr. Jokich then amended his complaint, this time alleging breach of his employment agreements and breach of the Bylaws of the Medical Staff of Rush University Medical Center (the Bylaws), and seeking a declaratory judgment pertaining to his contract claims. (See id. at 279-448.) After the judge set a briefing schedule for dispositive motions, Dr. Jokich filed a motion for voluntarily dismissal of his complaint in state court, which the court granted on October 26, 2018. (See id. at 449-50.)

Further, after the August 31, 2018 TRO hearing in state court, at which Dr. Jokich indicated that he did not have sufficient guidance around transitioning patients and what he could and could not communicate to...