42 F.4th 626
7th Cir.2022Background
- Dr. Peter Jokich was a longtime breast-imaging radiologist at Rush University Medical Center with a Faculty Employment Agreement (one-year automatic renewal) and a negotiated 2016 letter agreement that would extend employment through June 2020 but was expressly subject to Board of Trustees approval.
- The Board declined to approve the 2016 letter agreement; Rush and Jokich negotiated amendments in 2017 (adding productivity benchmarks) that Jokich rejected or did not accept; Rush nonetheless paid bonuses consistent with the 2016 agreement in part due to an administrative mistake.
- Beginning in early–mid 2018 Jokich had repeated conflicts with colleagues, sent critical emails about surgeons and a colleague’s tomosynthesis presentation, and was the subject of complaints to HR alleging problematic conduct; an outside investigator cleared him of discrimination.
- Rush reassigned supervisory duties, removed Jokich as director of the Division of Breast Imaging, cut his pay by over $200,000, and gave notice it would not renew his Faculty Employment Agreement (employment to end June 2019); Rush offered a severance/settlement which Jokich rejected.
- Jokich sued for Title VII retaliation (claiming his participation/anticipated participation in a colleague’s Title VII suit and his complaints about discrimination prompted adverse actions) and for breach of contract (enforcement/waiver/estoppel of the 2016 letter agreement and alleged improper mid-term termination/removal).
- The district court granted summary judgment to Rush on all claims; the Seventh Circuit affirmed, holding the record did not support protected activity/causation for retaliation and that no contract was breached because the 2016 agreement was subject to an unwaived condition precedent and the Faculty Agreement permitted the challenged actions.
Issues
| Issue | Plaintiff's Argument (Jokich) | Defendant's Argument (Rush) | Held |
|---|---|---|---|
| Whether Jokich engaged in Title VII–protected "participation" by being listed as a potential witness and by talking to HR about a colleague | Being listed as a witness and reporting concerns to HR counts as participation/opposition protected by Title VII | Mere listing on a witness list and general HR comments do not constitute protected participation/opposition under §2000e-3(a) | Court: Listing as a potential witness and the HR comments did not amount to protected activity sufficient to support retaliation claim |
| Whether Rush’s personnel actions (transfer of satellite oversight; removal as director, pay cut, nonrenewal) were retaliation causally linked to protected activity | The timing of adverse actions after Jokich’s alleged protected activity supports a retaliation inference; positive reviews show pretext | Actions were driven by long‑running conflicts with colleagues; many decisions predated or were independent of Jokich’s June complaints | Court: No but‑for causal link shown; timing and evidence insufficient to rebut nondiscriminatory explanations, so retaliation claim fails |
| Whether the 2016 letter agreement (extending employment to June 2020) was enforceable despite lack of Board approval; whether Rush waived or is estopped from enforcing the Board‑approval condition | Rush’s payment of bonuses and benefits under the 2016 terms shows waiver/estoppel and induced reliance making the agreement enforceable | The 2016 agreement was subject to an express condition precedent (Board approval) never satisfied; Rush’s conduct did not demonstrate an intent to abandon that condition nor mislead Jokich reasonably | Court: Condition precedent was not waived or estopped; 2016 agreement unenforceable and Faculty Agreement governed through June 2019 |
| Whether Rush breached the Faculty Employment Agreement by (a) terminating Jokich mid‑term without cause or (b) allowing DeCresce (not the department chair) to remove him as division director under bylaws | (a) Nonrenewal/role changes amounted to mid‑term termination without cause; (b) Bylaws require department chair to exercise discretion to remove director | (a) Rush provided proper 120‑day nonrenewal notice; Faculty Agreement permits mid‑term duty/pay changes with 60 days’ notice; (b) Chair’s practical acquiescence satisfied bylaw discretion | Court: No breach — nonrenewal and pay/duty modifications complied with Faculty Agreement; bylaw removal did not violate contract |
Key Cases Cited
- Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832 (7th Cir. 2014) (standard of review on summary judgment)
- McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783 (7th Cir. 2019) (summary judgment standards and review)
- Boston v. U.S. Steel Corp., 816 F.3d 455 (7th Cir. 2016) (elements required to establish Title VII retaliation)
- Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741 (7th Cir. 2010) (limits on what constitutes protected participation)
- Tomanovich v. City of Indianapolis, 457 F.3d 656 (7th Cir. 2006) (complaints must link alleged conduct to a protected class)
- McKenzie v. Ill. Dep't of Transp., 92 F.3d 473 (7th Cir. 1996) (but‑for causation and pretext framework for retaliation)
- Castro v. DeVry Univ., Inc., 786 F.3d 559 (7th Cir. 2015) (temporal proximity as only limited support for causation)
- Daugherty v. Wabash Ctr., Inc., 577 F.3d 747 (7th Cir. 2009) (timing alone insufficient to prove retaliation)
- Sphere Drake Ins. Ltd. v. Am. Gen. Life Ins. Co., 376 F.3d 664 (7th Cir. 2004) (definition and high bar for implied waiver by conduct)
- Downs v. Rosenthal Collins Grp., L.L.C., 963 N.E.2d 282 (Ill. App. Ct. 2011) (waiver of condition precedent principles)
- Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Ins. Co., 962 F.2d 628 (7th Cir. 1992) (waiver may be shown by conduct inconsistent with enforcing condition)
- Whalen v. K‑Mart Corp., 519 N.E.2d 991 (Ill. App. Ct. 1988) (performance can sometimes indicate waiver)