exam. According to Defendants, Sundstrom y. Village of Arlington Heights, 826 F. Supp. 1143,
1148 (N.D, Il. 1993), states that an agreement to promote the top-ranked officer on the
promotion eligibility list cannot override the statutory discretion given to police boards to
promote any candidate from among the three highest candidates on the promotion eligibility list.

{lowever, the holding of the court in Sundstrom is not so broad. In ruling on a motion for
summary judgment, the Sundstrom court stated, “Sundstrom must somehow show that. . . he
shared a mutual understanding with [the] Board that the latter had abdicated its statutory
discretion in favor of an invariable appointment of the number-one-ranked applicant.” The
Sundstrom court concluded that the plaintiff could not do so, and summary judgment was granted
against the plaintiff, Sundstrom, 826 F. Supp. at 1148-49, Accord Llermes v. Hein, 742 F.2d
350, 353 (7th Cir. 1984).

In this case, Plaintiff alleges Defendants promised to promote officers in strict rank order,
based on the results of the promotion cligibility test. For the purposes of a motion to dismiss,
this allegation is taken as true, Accordingly, for the purposes of this motion, Plaintiff has stated a
valid breach of contract claim.

Finally, Defendants claim that discretionary decisions regarding employment personnel in
Illinois are protected by absolute immunity. “Except as otherwise provided by Statute, a public
employec serving in a position involving the determination of policy or the exercise of discretion
is not liable for an injury resulting from his act or omission in determining policy when acting in
the exercise of such discretion even though abused.” 745 ILCS § 10/2-201; 745 TLCS

§ 10/2-109.


ANALYSIS

Defendants first argue that Greek-Americans arc not a protected class under § 1981. A
prima facie case of ethnicity discrimination under § 1981 requires a showing that Plaintiff was a
member of a protected class. See, e.g., Lalvani v. Cook County, 269 F.3d 785, 789 (7th Cir,
2001).

However, “[t]he proper inquiry here is not whether [Greeks] are considered to be a
separate race by today’s standards, but whether, at the time Section 1981 was adopted, [Greeks]
constituted a group of people that Congress intended to protect.” Bisciglia v. Unified Sch. Dist.
Number 1, 45 F.3d 223, 230 (7th Cir. 1995) (quoting Shaure Tefila Congregation v. Cobb, 481
U.S. 615, 616 (1987) (internal quotations omitted). The Supreme Court concluded that in
enacting § 1981, “Congress intended to protect from discrimination identifiable classes of
persons who are subjected to intentional discrimination solely because of their ancestry and racial
characteristics.” Therefore, § 1981 prevents discrimination against distinctive ethnic groups.
Saint Francis College v, Al-Khazraji, 481 U.S. 604, 613 (1987). At least one court has found
that Greeks are a protected class under Title VII. Ress v. Comptroller's Office, 97 C 5569, U.S.
Dist. LEXIS 277, at * 16 (N.D. Ill, Jan. 12, 2000).

Here, Plaintiff alleges that he was discriminated upon his race, Greck. Under § 1981,
Greeks are protected from discrimination bases solely on their ethnicity and ancestry, Therefore,
for the purposes of this motion, Plaintiff has stated a valid § 1981 claim.

Defendants next contend that Plaintiff’s breach of contract claim is barred by 65 ILCS
§ 2/10-2,1-15. That statute permits the police board of a municipality to promote officers to the

next highest rank if the officer ranks in the top three candidates after taking the promotional


As Plaintiff points out in his response, however, the Illinois statutory immunity does not
apply to contracts. 745 ILCS § 10/2-101(a). This immunity does not apply to constitutional
violations either. People ex rel. Birkett v. City of Chicago, 758 N.L..2d 25, 30 (Ill. App. Ct.
2001). Defendants did not challenge these arguments in their response. Therefore, for the
purposes of this motion, Defendants’ claim of immunity docs not apply.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is denied.

( JOHN W. DARRAH
ited’States District Judge

\
Dated: Mek. 2 2a0%



Mite Qyder Font (067)

United States District Court, Northern District of [llinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 3398 DATE 12/2/2003
CASE Drikos vs. City of Palos Heights
TITLE

[In the following box (a) indicate the party filing the motion, t.x., plaintiff, defendunt, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ usc listing in “Motion” box above.]

(2) o Brief in support of motion due

Q) Qo Answer brief to motion due____..- Reply to answer brief due.

(4) Q Ruling/Hearing onset fora

(5) ag Status hearing{held/continued to] [sct for/re-set for]on setfor______att

(6) iat} Pretrial conference[held/continued to] [set for/re-set for}on _ set for at.

(a) a Trial[sct for/re-sct for] on

(8) Oo (Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) Cl Local Rule 41.1 CFRCP4i(a)(1) CO FRCP41(a)(2).

co) «=x [Other docket entry] For the reasons stated in the attached memorandum opinion and order,

defendant’s 12(b)(6) to dismiss plaintiff's complaint [3-1] is denied. Defendant to file an answer to the
complaint by 12/23/03. Parties to exchange Rule 26(a)(1) disclosures by 1/22/04. Status hearing set for
2/4/04 at 9:00 a.m.

qa) | | [For further detail see order attached to the original minute order.]

No notices required, advised in open court Document

Number.

No notives required
numer of woicgn

Notices mailed by judge's staff.

Notitied counsel by telephone,

Docketing to mail notices.

Mail AQ 450 form, uno 191 _
Copy to judge/magistrate judge. sptsio sn
courtroom HO sh pg 2. . ate ie ste
copay _ 2~ 930 cy
initials SHOT Rp Nokon
central Clérk’s Office sg ety inlay



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GEORGE DRIKOS, HOCKETES
PlaintifF, DEC 03 2003

v No: 03 C 3398
CITY OF PALOS HEIGHTS, an Illinois
Municipal Corporation;

CITY OF PALOS HEIGHTS POLICE
DEPARTMENT; THE BOARD OF FIRE
AND POLLCE COMMISSIONERS; and
PALOS HEIGHTS POLICE CHLEF
LARRY YOTT, in his official and individual
capacities,

Judge John W. Darrah

Defendants.

eee SS eS Se ee ee eee

MEMORANDUM OPINION AND ORDER

The Plaintiff, George Drikos, sued the Defendants, the City of Palos Heights, the City of
Palos Heights Police Department, the Board of Fire and Police Commissioners, and Palos
Heights Police Chief Larry Yott, for a violation of 42 U.S.C. § 1981, a conspiracy to discriminate
jn violation of § 1981, and a breach of contract. Now before the Court is the Defendants’
12(b)(6) Motion to Dismiss. For the following reasons, that Motion is denied.

LEGAL STANDARD

In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and
any reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc,, 205 F.3d 323, 326 (7th Cir. 2000), A plaintiff is

not required to plead the facts or elements of a claim, with the exceptions found in Federal Rules

‘



of Civil Procedure 9. See Swierkiewicz v, Sorema, 534 U.S. 506, 511 (2002); Walker y.

Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). Dismissal is warranted only if “it appears

beyond a doubt that the plaintiff can prove no sct of facts in support of his claim which would

entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957), The “suit should not be

dismissed if it is possible to hypothesize facts, consistent with the complaint, that would make

out a claim.” Graehling v, Village of Lombard, fi, 58 F.3d 295, 297 (7th Cir. 1995),
BACKGROUND

The facts, for the purposes of this motion, are taken as true from Plaintiff's Complaint.
Plaintiff is a Greek-American male who started working for the City of Palos Heights Police
Department in July 1990. Plaintiff is the only fully ethnic, bi-lingual Greek member of the Palos
Heights Police Department.

Defendants offered Plaintiff a promotion to the rank of sergeant by announcing a
promotion examination. Defendants promised Plaintiff that officers would be ranked, in
numencal order, according to the performance on the exam. Officers would then be promoted in
strict rank order. Plaintiff acccpted this offer by taking the examination and continuing to work.

Plaintiff took and passed a promotion test given by the Palos Heights Police Department
for the position of sergeant. After the test, Plaintiff was placed number one on the eligibility list.
Despite this ranking, Plaintiff was not promoted to the rank of sergeant. The position of sergeant
remained open until a less qualified person, with a lower rank on the promotional eligibility test

and not of Greek origin, was promoted.