Peter Jokich v. Rush University Medical Center ( 2022 )

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-2691
PETER JOKICH, M.D.,
Plaintiff-Appellant,
v.
RUSH UNIVERSITY MEDICAL CENTER,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18 C 7885 — Joan H. Lefkow, Judge.
____________________
ARGUED FEBRUARY 23, 2022 — DECIDED JULY 28, 2022
____________________
Before SYKES, Chief Judge, and FLAUM and KANNE *, Circuit
Judges.
SYKES, Chief Judge. Rush University Medical Center fired
Dr. Peter Jokich, a distinguished radiologist who had
worked at the hospital for nearly two decades. Dr. Jokich
* Circuit Judge Kanne died on June 16, 2022, and did not participate in
the decision of this case, which is being resolved under 28 U.S.C. § 46(d)
by a quorum of the panel.
2 No. 21-2691
sued Rush, asserting claims under Title VII of the Civil
Rights Act of 1964 and Illinois law. He contends that his
termination and other actions taken by Rush were unlawful
retaliation for his participation in a colleague’s Title VII
lawsuit and his opposition to discriminatory practices at
Rush. He also contends that Rush’s actions violated the
procedures set out in his employment contract and that Rush
failed to adhere to an agreement guaranteeing his employ-
ment for an additional year.
The district judge entered summary judgment for Rush
on all claims. We affirm. The record supports Rush’s conten-
tion that its actions were taken because of Dr. Jokich’s clash-
es with his colleagues; it does not support Dr. Jokich’s claim
that he was fired because of his participation in activity
protected by Title VII. Nor does the record support
Dr. Jokich’s claims for breach of contract. Rush’s actions
comported with his employment contract, and the agree-
ment extending his employment was subject to a condition
precedent—approval by the hospital’s Board of Trustees—
that was never satisfied and that Rush did not waive.
I. Background
Dr. Peter Jokich is an accomplished radiologist who spe-
cializes in breast imaging. He was recruited to Rush in 2001
by Dr. Larry Goodman, then the hospital’s Dean, to improve
Rush’s struggling breast-imaging practice. Over the next two
decades, Dr. Jokich built a highly successful practice and
until his final year of employment, served as the director of
the hospital’s Division of Breast Imaging. That changed in
August 2018 when Rush stripped him of this role, cut his
pay by over $200,000, and provided notice that his employ-
ment contract would not renew when it expired in June
No. 21-2691 3
2019. Dr. Jokich contends that these actions resulted in
several breaches of contract and were unlawful retaliation
for his participation in activity protected by Title VII.
A. The Employment Contract
Dr. Jokich and Rush had an employment contract called a
“Faculty Employment Agreement.” The agreement, stand-
ard for doctors employed by Rush, set Dr. Jokich’s duties
and base salary and provided for a one-year employment
term. The agreement automatically renewed on July 1 each
year unless one party provided 120 days’ notice of the intent
to terminate the agreement. Rush could terminate the
agreement mid-term only for cause. However, Rush could
modify Dr. Jokich’s pay and duties with 60 days’ notice.
In addition to the Faculty Employment Agreement,
Dr. Jokich’s employment was at times governed by “letter
agreements,” which were written on Rush letterhead and
sent to Dr. Jokich for his signature. Dr. Jokich specially
negotiated for the letter agreements, which provided for
multiyear employment terms—superseding the Faculty
Employment Agreement’s one-year term—and annual
bonuses and special benefits for him and his breast-imaging
team. Absent an active letter agreement, Dr. Jokich’s em-
ployment was governed solely by the Faculty Employment
Agreement.
In August 2016 Dr. Jokich signed a letter agreement ex-
tending his employment through June 30, 2020. (We call this
the “2016 letter agreement” or “2016 agreement.”) The
enforceability of the agreement was subject to a condition
precedent: approval by Rush’s Board of Trustees. The Board
of Trustees had to approve the pay of very highly compen-
4 No. 21-2691
sated doctors like Dr. Jokich because the hospital, a tax-
exempt, not-for-profit entity, risked liability under antikick-
back laws if it overcompensated a physician relative to his
clinical productivity.
At an October 2016 meeting, the Board of Trustees con-
sidered and declined to approve the 2016 letter agreement. It
worried that Dr. Jokich’s clinical productivity was too low to
warrant the bonus compensation, exposing Rush to the risk
of liability. After the Board’s decision, Rush tried to craft an
amendment to the 2016 agreement acceptable to both
Dr. Jokich and the Board. Dr. Jokich personally participated
in the negotiations, sending several e-mails in March 2017
suggesting changes that he hoped might assuage the Board’s
legal concerns.
In April 2017 Rush sent Dr. Jokich a proposed amend-
ment to the 2016 agreement. The proposal, drafted with
recommendations from the Board of Trustees, sought to add
productivity benchmarks for Dr. Jokich’s practice. He would
be eligible for the bonus compensation set out in the 2016
agreement only if the benchmarks were met. Dr. Jokich
found the productivity requirements unacceptable and
immediately sent an e-mail rejecting the offer.
In June Rush returned with another proposed amend-
ment to the 2016 agreement. This offer (which we call the
“2017 amendment”) likewise added productivity bench-
marks, albeit less demanding ones, limiting Dr. Jokich’s
eligibility for the bonus compensation set out in the 2016
agreement. The amendment invited Dr. Jokich to accept with
his signature. But Dr. Jokich did not sign or otherwise signal
acceptance, and unlike his rejection of the first proposed
amendment, this time he told no one about his decision. At
No. 21-2691 5
his deposition he agreed that he had not accepted the 2017
amendment because “[i]t was basically the same letter that
[he] had earlier said [that he] wouldn’t sign.”
Although the Board of Trustees had not approved the
2016 agreement and although Dr. Jokich had not accepted
the 2017 amendment, Rush provided Dr. Jokich and his team
bonuses and benefits consistent with the 2016 agreement.
This included paying Dr. Jokich a yearly bonus in October
2017. Dr. Ranga Krishnan, Rush’s Dean and the person
responsible for approving Dr. Jokich’s bonuses, explained in
a declaration that he signed off on the bonus because he
mistakenly believed that Dr. Jokich had accepted the 2017
amendment.
B. Conflict and Termination
The parties have entered a mountain of evidence catalog-
ing a series of conflicts between Dr. Jokich and his col-
leagues. We will simplify where we can and focus on the key
events. In February 2018 Dr. Jokich e-mailed Dr. Krishnan,
Dr. Larry Goodman (who by then was Rush’s CEO), and
Rush’s head of surgery to complain about the hospital’s
breast surgeons. Dr. Jokich urged the administrators to find
an adequate replacement for a recently retired breast sur-
geon and criticized the performance of the remaining breast
surgeons, two of whom are female.
The head of surgery showed the e-mail to the two sur-
geons so they could gather evidence to rebut Dr. Jokich’s
suggestion that their performances were subpar. After
learning of the e-mail, the two female surgeons and
Dr. Paula Grabler, a radiologist who worked under
Dr. Jokich, raised concerns about him with the hospital’s
6 No. 21-2691
human-resources department. They complained about their
working relationship with him generally and suggested that
he may have engaged in sex discrimination.
Rush’s response to the complaints was twofold. First,
Dr. Krishnan made changes to the reporting hierarchy.
Dr. Grabler would now report to Dr. Robert DeCresce, the
acting director of the Rush Cancer Center, rather than
Dr. Jokich. Dr. Jokich would now report to Dr. DeCresce as
well rather than Dr. Sharon Byrd, the chair of the Depart-
ment of Diagnostic Radiology and Nuclear Medicine, which
housed Dr. Jokich’s Division of Breast Imaging. Second,
Rush hired an outside investigator to assess whether
Dr. Jokich had violated hospital policy or engaged in sex
discrimination. In April 2018 the investigator returned a
report concluding that Dr. Jokich had done neither.
Eight days after the investigator submitted her report,
Dr. DeCresce, who had received a copy of the report, placed
Dr. Grabler in charge of supervising breast-imaging facilities
at Rush’s satellite locations. The responsibility formerly
belonged to Dr. Jokich, and he considered the change a
demotion. At his deposition Dr. DeCresce explained that he
made the change because others involved in planning the
satellite facilities had said that Dr. Jokich had been difficult
to work with.
Dr. Jokich claims that it was really the investigator’s re-
port that motivated Dr. DeCresce to make the change.
Specifically, the report took note of Dr. Jokich’s theory that
his female colleagues had ginned up their complaints at the
urging of Rush leadership for the purpose of dissuading him
from testifying in another employee’s discrimination lawsuit
against Rush. That suit, filed in November 2017 by Norma
No. 21-2691 7
Melgoza, a Hispanic administrator, asserted claims under
Title VII and the Equal Pay Act. During discovery, Melgoza
had named Dr. Jokich (along with 111 others) as a potential
witness. Other than appearing on the witness list, Dr. Jokich
was not involved in Melgoza’s case.
According to Dr. Jokich, Dr. DeCresce would have been
unhappy to learn about Dr. Jokich’s potential involvement in
Melgoza’s lawsuit. The previous year Dr. DeCresce had
interviewed Melgoza for an internal promotion, and she
claimed that he put on a “Trump mask” during the inter-
view. Melgoza told Dr. Jokich about the incident, and he
encouraged her to complain to human resources. In Decem-
ber 2017 after Melgoza had filed her lawsuit, Dr. Jokich told
human-resources personnel who were investigating the
incident that he had told Melgoza that he thought the con-
duct was “unbelievable and unprofessional.” He did not,
however, say that Dr. DeCresce had discriminated against
her.
Returning to 2018 in the timeline, Dr. Jokich’s conflicts
with Dr. Grabler continued. On May 21 she gave a presenta-
tion on a breast-imaging technology called “tomosynthesis”
(or 3D mammography). Dr. Jokich attended the presentation
and made no comments while there. But the next day he
criticized the presentation in an e-mail sent to 60 colleagues,
including Drs. DeCresce, Goodman, and Krishnan, but not
including Dr. Grabler. Dr. Jokich suggested that tomosyn-
thesis was a gimmick to increase revenue at the expense of
patient safety and expressed broader concerns that money
was improperly driving the hospital’s decisions regarding
patient care.
8 No. 21-2691
A few hours later, Dr. DeCresce e-mailed Dr. Krishnan
about “Dr. Jokich’s latest outburst concerning his col-
leagues.” He raised concerns about Dr. Jokich’s behavior,
concluding: “I believe it is time for a change in mammogra-
phy. … If we want to be a leading cancer center[,] we need
individuals who will work together to achieve the goal. Pete
is not one of those people.” Dr. Krishnan added
Dr. Goodman to the e-mail chain, and Dr. Goodman re-
sponded to both, saying: “I totally support your judgement
[sic] concerning the individuals that report to you.”
Later that week on May 26, 2018, Dr. DeCresce contacted
human resources and explained the decision to terminate
Dr. Jokich’s employment. The hospital engaged outside
counsel to help carry out the termination, and by June 6 a
draft termination letter was ready.
June 11, however, brought another e-mail from
Dr. Jokich. This time he wrote to three Rush executives,
including Dr. Goodman, saying that he was aware of “seri-
ous discrimination issues and unfair employment practices
that have occurred, and are occurring, at Rush involving at
least gender, age, and national origin.” He then filed a
formal complaint with human resources alleging specific
instances of unlawful practices. The only ones relevant here
are the alleged discrimination underlying Melgoza’s already
pending lawsuit and retaliation against Dr. Jokich for his
supposed involvement in the case.
Dr. Goodman wanted to learn more about the issues
raised by Dr. Jokich before moving forward with the termi-
nation. To that end, Rush hired an outside investigator to
look into the claims. On July 29 the investigator returned a
report concluding that Dr. Jokich’s complaints were merit-
No. 21-2691 9
less. With that, according to Rush, it was time to proceed
with the previously planned termination.
On August 8 Drs. DeCresce and Krishnan met with
Dr. Jokich and presented a choice: resign under a special
agreement or face termination. The special agreement was
essentially a severance package that would pay Dr. Jokich
his salary of nearly $660,000 through June 2020 and leave
him free to take any other job. It also included mutual
nondisparagement provisions and a positive recommenda-
tion from Dr. Goodman. On August 21 Dr. Jokich declined
the offer.
The next day Dr. DeCresce informed Dr. Jokich by letter
that he was removed as the director of the Division of Breast
Imaging and provided notice that in 60 days his salary
would be reduced to about $450,000 to reflect the change in
duties. The letter also provided notice that Rush would
terminate the Faculty Employment Agreement at the end of
its term in June 2019, ending Dr. Jokich’s employment at
Rush.
C. Proceedings Below
Dr. Jokich responded with this lawsuit. He sued under
Title VII, asserting that Rush’s actions were unlawful retalia-
tion for his participation in Melgoza’s lawsuit and his oppo-
sition to discriminatory practices at Rush. He also brought
contract claims under Illinois law. His primary contention is
that Rush breached the 2016 letter agreement by employing
him through only June 2019, not June 2020. He also claimed
that Rush violated the Faculty Employment Agreement by
terminating him mid-term without cause and by allowing
10 No. 21-2691
Dr. DeCresce, rather than Dr. Byrd, the head of his depart-
ment, to remove him as a division director.
The district judge entered summary judgment for Rush
on all claims. On the Title VII claim, she determined that
some of the challenged actions were not adverse employ-
ment actions. For those that were, she determined that the
evidence was insufficient to allow an inference that Rush
took the actions because of Dr. Jokich’s participation in
protected activity.
The judge likewise determined that no reasonable fact-
finder could conclude that Rush breached any contractual
obligation to Dr. Jokich. Rush’s actions complied with the
Faculty Employment Agreement, and the 2016 letter agree-
ment was subject to a condition precedent—approval by
Rush’s Board of Trustees—that was never satisfied. The
condition was not waived by Rush, nor was the hospital
estopped from enforcing it.
II. Discussion
We review a summary judgment de novo, reviewing the
record in the light most favorable to Dr. Jokich, the nonmov-
ing party, and drawing all reasonable inferences in his favor.
Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 836 (7th
Cir. 2014). Summary judgment is appropriate if there is no
genuine dispute of material fact and Rush, the moving party,
is entitled to judgment as a matter of law. McCurry v. Kenco
Logistics Servs., LLC, 942 F.3d 783, 788 (7th Cir. 2019).
A. Title VII Retaliation
Title VII makes it unlawful for an employer to retaliate
against an employee because he opposes any employment
practice proscribed by Title VII or because he participates in
No. 21-2691 11
an investigation or proceeding under Title VII. 42 U.S.C.
§ 2000e-3(a). To survive summary judgment on his retalia-
tion claim, Dr. Jokich needed to provide evidence that (1) he
engaged in activity protected by Title VII; (2) he suffered an
adverse employment action; and (3) there is a causal link
between the protected activity and the adverse employment
action. Boston v. U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir.
2016).
To attempt to make his case, Dr. Jokich points to two sets
of actions taken by Rush. The first is Dr. DeCresce’s decision
to transfer oversight of the satellite breast-imaging facilities
to Dr. Grabler, which came about a week after an outside
investigator’s report noted Dr. Jokich’s theory that his
female colleagues had sought to dissuade him from testify-
ing in Melgoza’s lawsuit. Dr. Jokich claims that the report
revealed his “participation” in Melgoza’s lawsuit, prompting
Dr. DeCresce to retaliate against him.
The judge determined that the transfer of supervisory
responsibility was not a sufficient change to Dr. Jokich’s
duties to constitute an adverse employment action. Rush
advances the same argument on appeal. For present purpos-
es we put the dispute aside and focus on the other two
elements of a retaliation claim.
Dr. Jokich’s case falls short on both. First, he presented
no evidence that he engaged in protected activity prior to the
challenged action. In relevant part, § 2000e-3(a) protects an
employee who “ma[kes] a charge, testifie[s], assist[s], or
participate[s]” in a Title VII “investigation, proceeding, or
hearing.” To say that appearing with 111 others on a list of
potential witnesses counts as “participation” in a lawsuit
stretches the statutory language too far. Cf. Hatmaker v.
12 No. 21-2691
Mem’l Med. Ctr., 619 F.3d 741, 746–47 (7th Cir. 2010) (analyz-
ing the text of § 2000e-3(a) and concluding that participating
in an internal investigation is generally not protected activi-
ty).
Insisting that he engaged in protected activity, Dr. Jokich
emphasizes that he spoke with Rush’s human-resources
department about Dr. DeCresce wearing a “Trump mask”
when interviewing Melgoza. That conversation was not
protected activity because Dr. Jokich did not claim that
Dr. DeCresce had discriminated against Melgoza at all, let
alone on the basis of a protected characteristic. See
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.
2006) (“Merely complaining in general terms of discrimina-
tion or harassment, without indicating a connection to a
protected class or providing facts sufficient to create that
inference, is insufficient.”). Nor does the conversation with
human resources do anything to transform Dr. Jokich’s mere
appearance on a witness list into protected participation in
Melgoza’s suit.
Even if we assume that Dr. Jokich engaged in protected
activity, he would still need evidence that doing so motivat-
ed Rush to take the challenged action. Specifically, Dr. Jokich
must show that Rush would not have transferred his duties
to Dr. Grabler but for his supposed participation in
Melgoza’s lawsuit. McKenzie v. Ill. Dep’t of Transp., 92 F.3d
473, 483 (7th Cir. 1996). But-for causation may be inferred
from circumstantial evidence, although Rush may rebut the
inference with evidence of a nondiscriminatory explanation
for the challenged action. See Tomanovich, 457 F.3d at 663. If
Rush does so, the burden returns to Dr. Jokich to show that
No. 21-2691 13
the hospital’s nondiscriminatory explanation is pretextual.
McKenzie, 92 F.3d at 483.
Temporal proximity between protected activity and an
adverse employment action can support an inference of
causation between the two. Castro v. DeVry Univ., Inc.,
786 F.3d 559, 565 (7th Cir. 2015). Suspicious timing alone,
however, is generally insufficient to establish a retaliatory
motivation. Daugherty v. Wabash Ctr., Inc., 577 F.3d 747, 751
(7th Cir. 2009) (per curiam). Moreover, any inference of
causation supported by temporal proximity may be negated
by circumstances providing an alternative explanation for
the challenged action. See, e.g., Parker v. Brooks Life Sci., Inc.,
No. 21-2415, 2022 WL 2721059, at *4 (7th Cir. July 14, 2022);
Sun v. Bd. of Trs., 473 F.3d 799, 816 (7th Cir. 2007).
In this case, there is insufficient evidence to infer a causal
link between the supposed protected activity and the trans-
fer of responsibility to Dr. Grabler. Suspicious timing, at
most, is all there is, and without more a reasonable fact-
finder could not infer a retaliatory motivation for the action.
This is especially so in light of the competing explanation
that those working at the satellite locations found Dr. Jokich
difficult to work with, which Dr. Jokich has not shown to be
a pretext.
The second set of actions that Dr. Jokich challenges are
the August 2018 decisions to remove him as a division
director—with an associated pay cut of over $200,000—and
to not renew his Faculty Employment Agreement. Dr. Jokich
claims that these actions were taken in retaliation for his
June 2018 complaints about discriminatory practices at Rush.
The pay cut and termination are plainly adverse employ-
ment actions. See Barton v. Zimmer, Inc., 662 F.3d 448, 453–54
14 No. 21-2691
(7th Cir. 2011). And we assume for present purposes that
Dr. Jokich’s formal complaint about alleged discrimination
was a “step in opposition to a form of discrimination that
[Title VII] prohibits” qualifying as protected activity. Ferrill
v. Oak Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 501 (7th
Cir. 2017) (quotation marks omitted).
Dr. Jokich’s trouble, again, is establishing a causal link
between his protected activity and Rush’s actions. Rush says
that it decided to terminate Dr. Jokich in May 2018—when
Dr. Jokich sent an e-mail to 60 colleagues criticizing
Dr. Grabler’s presentation and Rush generally—before his
June complaints. A paper trail confirms this account:
Dr. DeCresce told human resources about the decision on
May 26, and by June 6 a draft termination letter was ready.
The termination was halted, according to Rush, in response
to Dr. Jokich’s complaints about discrimination, which came
shortly after the draft termination letter had been completed.
Dr. Jokich urges us to reject Rush’s timeline, suggesting
that the true decision to fire him was made after his June
2018 complaints. That would require an improbable series of
events such as this: Rush decided in May 2018 to fire
Dr. Jokich; engaged outside counsel to do so; drafted a
termination letter; then—for reasons unexplained—had a
change of heart and decided to keep him on; finally,
Dr. Jokich lodged his complaints, provoking Rush to fire him
(again, and to follow through this time). The story is tough
to swallow in theory, and it’s impossible to credit in fact
because there is no evidence for it.
Even if we fully accept this unsupported back-and-forth-
and-back-again hypothesis, Dr. Jokich still cannot win. The
only evidence of a retaliatory motive would be arguably
No. 21-2691 15
suspicious timing between his June 2018 complaints and
Rush’s August 2018 actions. That’s not enough to make his
case. Pushing back, Dr. Jokich insists that his positive per-
formance reviews evince pretext on Rush’s part. They don’t.
Rush agrees that Dr. Jokich is an excellent doctor and has
always maintained that it fired him because of his conflicts
with colleagues. The judge properly granted Rush’s motion
for summary judgment on the retaliation claim.
B. Breach of Contract
Dr. Jokich contends that Rush’s actions resulted in sever-
al breaches of contract under Illinois law. The district court
had supplemental jurisdiction over the state-law claims
pursuant to 28 U.S.C. § 1367(a) because they form part of the
same “case or controversy” as the Title VII retaliation claim.
Like the retaliation claim, the state-law claims center on
Rush’s August 2018 actions against Dr. Jokich.
Dr. Jokich’s primary contention is that Rush breached the
2016 letter agreement, which extended his employment
through June 2020, by employing him through only June
2019 when the Faculty Employment Agreement terminated.
The 2016 agreement, Dr. Jokich concedes, was subject to
approval by Rush’s Board of Trustees, a condition precedent
that was never satisfied. Nonetheless, he argues that Rush
waived the condition precedent or is estopped from enforc-
ing it.
A condition precedent may be waived by the party
whom it was intended to benefit. Downs v. Rosenthal Collins
Grp., L.L.C., 963 N.E.2d 282, 290 (Ill. App. Ct. 2011). Waiver
may occur either “expressly or by conduct indicating that
strict compliance with the condition[] is not required.”
16 No. 21-2691
Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm
Ins. Co., 962 F.2d 628, 633 (7th Cir. 1992). Conduct implies
waiver only when it is “wholly inconsistent with the clause
or condition, thereby indicating [the] intent to abandon the
contractual right.” Sphere Drake Ins. Ltd. v. Am. Gen. Life Ins.
Co., 376 F.3d 664, 679 (7th Cir. 2004) (quotation marks omit-
ted). Put differently, “[a]n implied waiver of a right may be
shown when the conduct of the person against whom waiv-
er is asserted is inconsistent with any intention other than to
waive the right.” Downs, 963 N.E.2d at 290–91.
A party to a contract may likewise lose a contractual
right by virtue of estoppel. Estoppel occurs when a party’s
“statement or conduct misleads another into the belief that a
right will not be enforced and cause[s] him to act to his
detriment in reliance on that belief.” Sphere Drake Ins.,
376 F.3d at 679 (quoting Old Sec. Life Ins. Co. v. Cont’l Ill. Nat’l
Bank & Tr. Co. of Chi., 740 F.2d 1384, 1392 (7th Cir. 1984)).
The statement or conduct causing detrimental reliance need
not be fraudulent in the legal sense or even done with the
intent to mislead. Ceres Ill., Inc. v. Ill. Scrap Processing, Inc.,
500 N.E.2d 1, 7 (Ill. 1986). But the reliance of the party acting
to his detriment must be reasonable. Schwinder v. Austin Bank
of Chi., 809 N.E.2d 180, 192 (Ill. App. Ct. 2004).
No express statement from Rush supports waiver or es-
toppel, so Dr. Jokich’s arguments rely on Rush’s conduct.
The hospital provided him benefits and a bonus consistent
with the 2016 agreement. Dr. Jokich argues that these actions
implied waiver by indicating that Rush intended to abandon
the condition that the Board of Trustees approve the con-
tract. He further argues that Rush is estopped from enforc-
ing the condition because, he claims, he would have left the
No. 21-2691 17
hospital if not for the belief, induced by Rush’s conduct, that
he had the assurance of a multiyear agreement.
Beginning with waiver, we agree that a party’s perfor-
mance or its acceptance of another party’s performance may
sometimes establish waiver of a condition precedent to the
formation of a contract. E.g., Whalen v. K-Mart Corp.,
519 N.E.2d 991, 994 (Ill. App. Ct. 1988); H.J., Inc. v. Int’l Tel. &
Tel. Corp., 867 F.2d 1531, 1545–46 (8th Cir. 1989). We also
agree that some of Rush’s actions—providing certain bene-
fits and paying an annual bonus—were consistent with the
2016 agreement.
Waiver of a condition precedent, however, requires more
than just some actions consistent with the performance of
the contract. It requires conduct “wholly inconsistent” with
the condition. Sphere Drake Ins., 376 F.3d at 679; see also
Downs, 963 N.E.2d at 290–91. The record does not satisfy this
demanding standard. After the Board of Trustees rejected
the 2016 agreement, Rush worked to craft an amendment
that the Board would accept. It did so openly with Dr. Jokich
himself participating in the negotiations. Rush also entered
unrefuted evidence that for several months in 2013 and 2014,
it had provided Dr. Jokich benefits consistent with a prior
letter agreement even though a new letter agreement had
not been reached. Whatever the reason for Rush’s provision
of compensation consistent with the 2016 agreement—
whether a mistake or an act of grace for a valued doctor—
those actions cannot establish waiver where Rush otherwise
demonstrated an unwillingness to waive the condition.
Dr. Jokich’s estoppel argument fares no better. He could
not have been misled into thinking that Rush would not
enforce the condition precedent because, as just explained,
18 No. 21-2691
the hospital openly worked to gain the Board of Trustees’
approval. What’s more, he cannot show that he reasonably
and detrimentally relied on a misrepresentation to stay at
Rush. He learned that the Board had rejected the 2016
agreement and silently chose not to accept the 2017 amend-
ment. He stayed at Rush anyway.
With the waiver and estoppel arguments knocked out,
there is no basis for the enforceability of the 2016 agreement.
And Dr. Jokich provides no argument for the enforceability
of the 2017 amendment. (Indeed, he affirmatively disavows
it.) Thus, the Faculty Employment Agreement controlled the
employment relationship. It ran through June 2019, and
consequently, Rush did not breach any contract by employ-
ing Dr. Jokich through only that date.
Dr. Jokich has two additional arguments for breach of
contract. The first is that Rush breached the Faculty Em-
ployment Agreement by terminating him mid-term without
identifying cause for doing so. The argument has no merit
because Rush did not terminate Dr. Jokich mid-term. Rather,
the hospital declined to renew the Faculty Employment
Agreement (with 120 days’ notice) at the end of its term. No
cause was required for that nonrenewal. Rush did modify
Dr. Jokich’s duties and pay (with 60 days’ notice) in the
middle of the term. But the Faculty Employment Agreement
specifically allowed the hospital to make these changes
without cause; they are not, in any event, a “termination.”
Second, Dr. Jokich argues that Rush violated its medical-
staff bylaws by allowing Dr. DeCresce to remove him as a
division director. (Rush concedes that the Faculty Employ-
ment Agreement incorporated the bylaws.) Bylaw 10.3-2(c)
provides that a division director serves in the position
No. 21-2691 19
“solely at the discretion” of the chair of the department in
which the division sits. By Dr. Jokich’s reading of the bylaw,
his removal as a division director could occur only if
Dr. Sharon Byrd, the department chair, initiated the action.
Dr. Jokich’s reading of the bylaw is far too stringent.
Dr. DeCresce made the decision to remove Dr. Jokich as a
division director with the support of Dr. Krishnan, Rush’s
Dean, and Dr. Goodman, Rush’s CEO. Dr. Byrd later learned
about the decision but did not seek to change it. Indeed, she
explained at her deposition that she hardly interacted with
Dr. Jokich in practice and was content for those who did to
handle the situation. Whatever level of discretion the bylaw
required Dr. Byrd to exercise, her decision to hand off the
matter to others satisfied it.
The evidence was insufficient to prove a breach of con-
tract on any theory. Accordingly, the judgment of the district
court is AFFIRMED.