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Dirilten v. Tall Grass Homeowners Association

United States District Court, N.D. Illinois, Eastern Division

July 2, 2014





The Plaintiffs, Suleyman Dirilten, Mustafa Dirilten, Hudai Dirilten, and Kamil Dirilten (the "Diriltens"), of Middle Eastern ethnicity, owned numerous lots in Tall Grass, a residential development located in Naperville, Illinois. The Defendant, Tall Grass Homeowners Association ("Tall Grass" or the "Association"), has issued a Declaration of Covenants and Restrictions which govern all property owners in the subdivision. Defendant, James Shehee ("Shehee"), is a property owner in Tall Grass and has served as President, Secretary, and as a Board member of Tall Grass Homeowners Association. The Diriltens have filed this suit pursuant to Sections 1981 and 1982 (42 U.S.C. §§ 1981 and 1982), seeking to redress what they contend is Defendants' unlawful and discriminatory contractual and housing practices directed against them on the basis of race and ethnicity. They contend that they have been targeted and discriminated against by Tall Grass and some board members as well as residents because of their race and ethnicity. Specifically, they contend that residents of Tall Grass have been illegally dumping on their properties at various times and specifically on July 29, 2007, July 29, 2009 and at other times up to the present. They further allege that Tall Grass has billed them repeatedly for failure to maintain their lots and charged them excessive fees for lawn maintenance and clearing of debris dumped by other residents. They contend also that the Association brought multiple suits against them in state court to recover money spent by the Association for lot maintaining the Diriltens' properties. They further contend that they have been subjected to frequent racial and ethnically derogatory language by Shehee and other Board members. They further contend that non-Middle Eastern lot owners with similar or worse conditions on their properties have not encountered the fees and billing for maintenance work that they have encountered.

The position of the Board is that it has notified all residents on numerous occasions that dumping and vandalism was illegal but has told the Diriltens that it has no authority to enforce criminal laws but that they as well as other offended residents should notify the Naperville Police Department of any illegal dumping and vandalism. The Board notifies its residents by way of its official news letter, Whispers. The Defendants also contend that there is no evidence, documentary or otherwise to support the contentions that any racial or derogatory terms were used by Board members against any of the Plaintiffs. They also claim that the Plaintiffs were not the only ones with maintenance issues with the Board and that many other owners were charged for the cost the board incurred in cleaning and maintaining their lots. Defendants do admit that Plaintiffs were the only ones actually sued by the Board to recover maintenance costs but that was only because the Plaintiffs had run up unpaid costs that were higher than any other property owner. They also contend that many of the Plaintiffs' complaints are time barred. They move for summary judgment.


Section 42 U.S.C. § 1981 states that every person "shall have the right... to make and enforce contracts... as enjoyed by White citizens." The term "make and enforce" includes "the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." The statute of limitations for Section 1981 is four years and starts to run when a party discovers or should have discovered an injury. Cathedral of Joy Baptist Church v. Village of Hazelcrest, 22 F.3d 713, 716 (7th Cir. 1994).

Section 42 U.S.C. § 1982 concerns racial discrimination in property transactions. It states that "all citizens shall have the same right in every state or territory, as enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real property." The act bars all "racial discrimination, both private and public, in the sale or rental of property, in other words to be free from racially motivated interference with property rights. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 128 (1979).


To establish either a Section 1981 or a Section 1982 claim, a plaintiff must show: (1) he is a member of a racial minority; (2) the defendants had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute. Morris v. Office Max, Inc., 89 F.3d 411, 413-414 (7th Cir. 1996). In relation to Section 1981, the Plaintiffs' claims would be under the right to make and enforce contracts - here the property declarations which entitle Tall Grass to enforce its property maintenance requirements. In relation to Section 1982 the Plaintiffs' claims would be essentially the same only in the real estate ownership context. Id.

The Plaintiffs can defeat summary judgment under both Sections 1981 and 1982 by using the indirect burden shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To do so, Plaintiffs must first establish a prima facie case by establishing that (1) they are members of a protected class; (2) their performance met the legitimate expectations of defendants under the agreements at issue; (3) they suffered an adverse action; and (4) similarly situated individuals not in the protected class were treated more favorably. Once a prima facie case is established, the burden of production shifts to defendants to articulate some legitimate, nondiscriminatory reason for its action. If the defendant does so, the burden is on plaintiffs that the stated reason is pretext. Elkhatib v. Dunkin Donuts, Inc., 493 F.3d 827, 831 (7th Cir. 2007).

Here the Defendants do not dispute that as "middle easterners" the Plaintiffs are members of a protected class. In Elkhatib, the court held that Arabs, Middle Easterners, were a protected class. They do not dispute that Plaintiffs, in incurring costs and forced to defend a lawsuit, suffered adverse actions. However, Defendants do dispute, both that Plaintiffs' performance met their legitimate expectations and that similarly situated non-Middle Easterners were treated more favorably. They also contend that many of Plaintiffs' complaints occurred outside the statute of limitations (Section 1981 - 4 years, and Section 1982 - two years.)

With respect to the two disputed aspects of their cases, Plaintiffs put forth the following allegations of fact, which they contend are supported by the record:

1. Suleyman Dirilten testified that at some unspecified time and place he was told by Laurie Wise and Barb McKibben, on-site managers, employed by management companies hired by the Tall Grass Board of Directors, that certain letters and requests sent to them were "ridiculous and unfair" and other builders were not held to the same standard as the Diriltens.

2. Suleyman testified that at some unspecified time he saw a group of residents talking and one of them was dumping flower pots on Hudai Dirilten's lot. Defendant Shehee happened to be outside on his driveway at the time and did nothing to stop it. ...

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