Dale v. Human Rights Comm'n

2024 IL App (4th) 240434-U

• Court: Appellate Court of Illinois
• Decided: December 17, 2024
• Docket: 4-24-0434
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2024 IL App (4th) 240434-U FILED December 17, 2024 Supreme Court Rule 23 and is NO. 4-24-0434 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

NICHOLAS W. DALE, ) Petition for Petitioner, ) Review of an Order of the v. ) Human Rights Commission THE HUMAN RIGHTS COMMISSION, THE ) DEPARTMENT OF HUMAN RIGHTS and THE ) SECRETARY OF STATE, ) No. 23-0213 Respondents. )

JUSTICE STEIGMANN delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.

ORDER

¶1 Held: The Human Rights Commission did not abuse its discretion in upholding the determination of lack of substantial evidence of discrimination.

¶2 In February 2022, petitioner, Nicholas W. Dale, a member of the Satanic Temple,

filed a charge with the Department of Human Rights (Department), alleging that the Secretary of

State (Secretary) denied him the full and equal enjoyment of the Illinois State Capitol building

(Capitol) due to his religion when, on December 20, 2021, a Capitol Police Officer denied him

entry to the Capitol to attend the installment of the Satanic Temple’s holiday display.

¶3 In May 2023, the Department dismissed Dale’s claim for lack of substantial

evidence. In August 2023, Dale filed a request for review of the Department’s decision with the

Human Rights Commission (Commission), reiterating the arguments in his initial charge and

adding a new charge of retaliation. In January 2024, the Commission sustained the Department’s

dismissal. ¶4 Dale petitions this court for direct administrative review of the Commission’s

decision, arguing that the decision should be overruled because (1) he presented substantial

evidence of religious discrimination and retaliation and (2) the decision was made based on the

personal bias and prejudice of the Commission’s members. We disagree and affirm.

¶5 I. BACKGROUND

¶6 A. The Charge

¶7 On February 4, 2022, Dale filed a charge of discrimination with the Department,

alleging that the Secretary—acting through the Capitol Police—denied him the full and equal

enjoyment of the Capitol due to his religion, in violation of section 5-102(A) of the Illinois

Human Rights Act (Act) (775 ILCS 5/5-102(A) (West 2022)). In his complaint, he stated the

following:

“On December 20, 2021, I was denied the full and equal enjoyment of [the

Secretary’s] facility by Officer Jennifer Breta (religion unknown) and Sargent

Michael Moore (religion unknown). The reason they cited for the denial was

because I did not have a special permit for the event that was going on. After

touring the capitol for a half hour, I asked the guards, ‘how long do these events

last.’ ‘The guard responded there was no event.’ They let me into the capitol

building as an individual and told me I would be in violation if I engaged in

chanting with the religious group. They did not find me to tell me I could engage

with my religious group after letting me in. They knew I was there to assemble

with the group. DVD videos are included herein, of the entire interaction. I used

my cell phone camera to record everything. The videos are too large to email.

Also, herein is a link to them on various cloud providers if the DVD’s [sic] get

-2- damaged in the mail. There are two videos.

Similarly situated non-Satanic Temple individuals were treated more

favorably under similar circumstances.”

¶8 The charge then provided a list of Internet links to online versions of the videos.

¶9 B. The Proceedings Before the Department

¶ 10 1. The Investigation

¶ 11 The Department investigated the charge, reviewing the testimony of four

witnesses—namely, (1) Dale, (2) Equal Employment Opportunity Officer Jeanine Stroger,

(3) Capitol Police Sergeant Michael Moore, and (4) Capitol Police Investigator Jennifer Brida—

as well as four exhibits—namely, (1) video footage, (2) a “Non-discrimination policy,” (3) a

“Satanic Temple special events permit,” and (4) a “December 21, 2021[,] email.” The evidence

showed the following.

¶ 12 On December 20, 2021, the Satanic Temple received an event permit to erect a

holiday display inside the Capitol on that date, with a minimum of 5 people and a maximum of

20 people helping. Approximately 15 to 20 members of the Satanic Temple arrived at the Capitol

that day to erect the display. Another religious group, the Tradition, Family, and Property (TFP)

group, arrived at the Capitol around the same time in opposition to the Satanic Temple, without

having obtained an event permit. Having heard about the Satanic Temple event through social

media, Dale traveled to the Capitol independently to support the erection of the holiday display,

arriving at approximately the same time as members of the Satanic Temple and TFP. Although

he was a member of the Satanic Temple, Dale was not part of the group that had acquired the

permit to erect the holiday display, and he did not arrive at the Capitol with that group.

¶ 13 Because such a large number of people arrived at the Capitol at approximately the

-3- same time, Capitol Police delayed entry for everyone, including Dale, while they determined

which people were part of the group that possessed the permit. Dale stated that he did not recall

whether he identified himself as a member of the Satanic Temple. Capitol Police stated that Dale

never identified himself as a member of the Satanic Temple or of any other group, indicating

only that he was there to assemble.

¶ 14 Capitol Police eventually granted entry to all members of the public. They

allowed the Satanic Temple group to enter pursuant to their permit but also admitted other

individuals who did not have permits. However, Capitol Police informed everyone entering the

Capitol, including the Satanic Temple group, that assembling and chanting were not allowed

pursuant to COVID-19 restrictions.

¶ 15 Once inside the Capitol, the Satanic Temple group erected their holiday display.

Both the Satanic Temple and TFP supporters gathered around the various holiday displays and

began to chant. Members of the public and the press also gathered around the holiday displays.

Capitol Police did not enforce their earlier-stated rule that assembling and chanting were not

allowed. During this time, Dale walked around the Capitol videotaping the event.

¶ 16 2. The Department’s Decision

¶ 17 On May 2, 2023, the Department dismissed Dale’s charge for lack of substantial

evidence, finding that the Secretary may not have known Dale was a member of the Satanic

Temple.

¶ 18 The Department provided the following analysis:

“In this case, it is uncontested that the Satanic Temple was granted a

permit to place a holiday display at the Capitol building on December 20, 2021. It

is also uncontested that members of the Satanic Temple were granted access to

-4- the Capitol [b]uilding, were able to place their holiday display, and were allowed

to assemble and chant inside of the Capitol building. Additionally, it is

uncontested that [Dale] may not have identified himself as a member of the

Satanic Temple, that [Dale] requested entry to the Capitol building as an

individual, and that [Dale] was granted entry to the Capitol building as an

individual. Finally, it is uncontested that members of a different religious group

were also denied access to the Capitol building on that date. The evidence also

shows that the Satanic Temple event organizer was appreciative to [the Secretary]

for [its] ‘professionalism and respect for diversity’ on December 20, 2021. Thus,

there is no substantial evidence that [the Secretary] knew [Dale] to be a member

of the Satanic Temple, or that [the Secretary] held or demonstrated a bias against

individuals who were members of the Satanic Temple. Therefore, there is no

substantial evidence that [Dale] was denied the full and equal enjoyment of [the

Secretary’s] facility due to his religion, Satanic Temple.”

¶ 19 C. The Proceedings Before the Commission

¶ 20 In August 2023, Dale requested a review of the Department’s decision with the

Commission. In his request, he (1) alleged similar allegations to those contained in his charge,

disputed the Department’s findings, and contended the Department misapplied the law and

(2) added an allegation of retaliation for his having filed the charge against the Secretary,

asserting that his car was “almost T’Boned by *** Investigator Timothy Frye, who ran a red

light and did not turn his lights on until he was already in the intersection,” due to Dale’s filing

the charge.

¶ 21 In January 2024, the Commission entered an order sustaining the Department’s

-5- decision, concluding as follows:

“[The Department] properly dismissed [Dale’s] charge for lack of

substantial evidence.***

***

[Dale] first contends that Capitol Police denied him entry into the Capitol

because of his religion. [He] asserted that members of TFP were treated more

favorably than him. However, Capitol Police initially denied entry to everyone,

regardless of their religious affiliation. After determining how to handle the

crowd, Capitol Police then allowed everyone who desired to enter the Capitol

(including Satanic Temple, TFP, the press, and [Dale]) to do so. The Commission

concludes that [Dale] has failed to establish a prima facie case of discrimination

because he did not identify a similarly situated person who was not Satanic

Temple who was treated more favorably than him.

Next, [Dale] argues that Capitol Police prohibited him from assembling

and chanting in support of Satanic Temple’s erection of their holiday display but

allowed TFP supporters to assemble and chant. However, despite initially telling

all visitors to the Capitol that assembling and chanting were prohibited due to

COVID-19 protocols, once inside the building, Capitol Police did not stop anyone

regardless of religion from gathering around the holiday displays and chanting.

No one told [Dale] that he could not gather with the Satanic Temple group or join

in the chanting or otherwise prevented him from doing so. It is also worth noting

that, like TFP, [Dale] did not have an approved permit; he arrived at the Capitol

separately and was not part of the Satanic Temple group that had applied for and

-6- received the event permit, indicating that Capitol Police treated TFP and [Dale]

the same. The Commission concludes that [Dale] has failed to establish a

prima facie case of discrimination because he has not shown that he was denied

anything, and he did not identify a similarly situated person who was not Satanic

In his Request, [Dale] argues that Jeanine Stroger, legal counsel for [the

Secretary], ‘illegally and knowingly materially misrepresented her clients’ by

stating that Satanic Temple did not have permission to assemble and chant.

However, this argument does not cure the defects in [Dale’s] prima facie case as

analyzed above.

[Dale] also raises a new allegation in his Request that was not previously

alleged in his initial charge of discrimination—retaliation. In a request for review,

however, the Commission only has jurisdiction to review claims raised before [the

Department] in the charge of discrimination.”

¶ 22 This petition followed.

¶ 23 II. ANALYSIS

¶ 24 Dale petitions this court for direct administrative review of the Commission’s

decision, arguing that the decision should be overruled because (1) he presented substantial

evidence of religious discrimination and retaliation and (2) the decision was made based on the

personal bias and prejudice of the Commission’s members. We disagree and affirm.

¶ 25 A. The Applicable Law and Standard of Review

¶ 26 The Act makes it a “civil rights violation” for “any person on the basis of

unlawful discrimination” to “[d]eny or refuse to another the full and equal enjoyment of the

-7- facilities, goods, and services of any public place of accommodation.” 775 ILCS 5/5-102(A)

(West 2022). Similarly, the Act provides that a public official may not deny “the full and equal

enjoyment of the accommodations, advantage, facilities or privileges or the official’s office or

services or of any property under the official’s care because of unlawful discrimination.” Id.

§ 5-102(C). “Unlawful discrimination” includes discrimination due to a person’s actual or

perceived religion. Id. § 1-103(Q).

¶ 27 Under the Act, people who believe that their civil rights have been violated may

file a charge with the Department, which then investigates the allegations in the charge. Id.

§§ 7A-101, 7A-102(A-D). An investigator prepares a report for the director of the Department,

who determines whether there is “substantial evidence” to pursue the charge. Id. § 7A-102(D)(1),

(D)(2). Substantial evidence is defined as evidence that a reasonable mind would accept as

sufficient to support the complainant’s allegations and which “consists of more than a mere

scintilla but may be somewhat less than a preponderance.” Id. § 7A-102(D)(2).

¶ 28 If the Department finds that the charge lacks substantial evidence, it must dismiss

the charge, and the complainant may then request the Commission’s review of the Department’s

decision. Id. §§ 7A-102(D)(3), 8-103(A). In conducting its review, the Commission “may

consider the Department’s [investigation] report, any argument and supplemental evidence

timely submitted [by the parties], and the results of any additional investigation conducted by the

Department in response to the request [for review].” Id. § 8-103(B).

¶ 29 If the Commission sustains the dismissal, the complainant may seek review

directly in the appellate court. 775 ILCS 5/8-111(B)(1) (West 2022). We review the decision of

the Commission, not the Department. Spencer v. Illinois Human Rights Comm’n, 2021 IL App

(1st) 170026, ¶ 31.

-8- ¶ 30 The Act provides that we review the Commission’s factual findings under the

manifest weight of the evidence standard. 775 ILCS 5/8-111(B)(2) (West 2022). However, we

review the Commission’s conclusions of law de novo and its ultimate decision for an abuse of

discretion. Spencer, 2021 IL App (1st) 170026, ¶¶ 31-32. We will not find an abuse of discretion

unless the Commission’s decision is arbitrary or capricious, meaning that “ ‘it contravenes

legislative intent, fails to consider a critical aspect of the matter, or offer[s] an explanation so

implausible that it cannot be regarded as the result of an exercise of the agency’s expertise.’ ” Id.

¶ 32 (quoting Young v. Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, ¶ 33).

¶ 31 A complainant may prove discrimination by presenting direct evidence of

discrimination, such as proof of a racial slur or a written or oral admission, or through indirect

evidence. Board of Education of City of Chicago v. Cady, 369 Ill. App. 3d 486, 495 (2006);

Lalvani v. Illinois Human Rights Comm’n, 324 Ill. App. 3d 774, 790 (2001). When there is no

direct evidence of discrimination, the complainant bears the burden to establish a prima facie

case by a preponderance of the evidence through indirect evidence. Young, 2012 IL App (1st)

112204, ¶ 34.

¶ 32 To establish a prima facie case of discrimination in a place of public

accommodation, a complainant must show that he (1) “is a member of a protected class,”

(2) “attempted to exercise the right to full benefits and enjoyment of a place of public

accommodation,” (3) “was denied those benefits and enjoyment,” and (4) “was treated less

favorably than similarly situated persons outside his protected class.” (Internal quotation marks

omitted.) Dunn v. Human Rights Comm’n, 2022 IL App (1st) 211155-U, ¶ 34.

¶ 33 B. This Case

¶ 34 1. The Retaliation Claim

-9- ¶ 35 Regarding Dale’s retaliation claim, we agree with respondents that Dale forfeited

any challenge to the Commission’s dismissal of his retaliation claim by failing to raise it in his

initial brief on appeal. Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires a brief

to “contain the contentions of the appellant and the reasons therefor, with citation of the

authorities and the pages of the record relied on.” The rule further provides that “[p]oints not

argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for

rehearing.” Id.

¶ 36 Dale does not develop any argument, let alone mention the retaliation charge’s

dismissal. Instead, he focuses solely on the discrimination charge in his opening appellate brief.

Accordingly, we conclude that Dale forfeited review of that issue, and we address the merits of

only his claim that the Commission erred by dismissing the discrimination charge.

¶ 37 2. The Discrimination Claim

¶ 38 Dale argues that the Commission abused its discretion by sustaining the

Department’s dismissal based on its finding that he failed to show (1) he was denied the full and

equal enjoyment of the Capitol and (2) similarly situated individuals who were not members of

the Satanic Temple were afforded the full use and enjoyment of the Capitol. He contends that

many of the Commission’s findings were contrary to the manifest weight of the evidence,

specifically its findings that (1) “ ‘[h]aving heard about the Satanic Temple event on social

media, [Dale] traveled to the Capitol independently to support the erection of the holiday

display,’ ” (2) “Dale was not part of the group that had acquired a permit to erect the holiday

display,” (3) “[a]ssembling and chanting were not allowed pursuant to COVID-19 restrictions,”

and (4) “[n]o one told the [Dale] that he could not gather with the Satanic Temple group or join

in the chanting or otherwise prevented him from doing so.”

- 10 - ¶ 39 As an initial matter, Dale discusses the substance of a DVD exhibit that is not

present in the administrative record. We note that Dale filed a motion to supplement the record

with that DVD exhibit, which we denied. “On review of an administrative agency decision, this

court is limited to considering the record that was before the agency and may not consider new

or additional evidence.” (Internal quotation marks omitted.) Deen v. Lustig, 337 Ill. App. 3d 294,

304 (2003). Although the record shows that the DVD exhibit was included in Dale’s charge with

the Department, it was not included in his request for review filed with the Commission. Because

the DVD exhibit was not before the Commission, we do not consider the footage contained

therein in our review.

¶ 40 Regardless, we “may not reweigh the evidence or substitute [our] judgment for

that of the Commission,” and we will not reverse the Commission unless no reasonable person

could agree with its position. Spencer, 2021 IL App (1st) 170026, ¶ 32.

¶ 41 Here, nothing in the record undermines the Commission’s conclusion that Dale

failed to establish a prima facie case of discrimination. The uncontested facts of the

Department’s investigation report, which the Commission relied on in making its decision,

support its findings that Dale was treated the same as members of other religions and afforded

the full use and enjoyment of the Capitol. Indeed, two of the essential allegations in Dale’s

request for review—specifically, “(1) [members of other religious groups] were not held in

violation when they chanted and assembled without a special event permit [and] (2) Dale was

told he would be held in violation if he assembled and chanted with [the Satanic Temple] that

invited him there”—fail to identify any disparate treatment. It is uncontested that (1) all entrants

were told they could not chant and assemble without a permit and (2) no group or individual was

held in violation when they did chant and assemble. The uncontested evidence shows that all

- 11 - individuals and groups were treated equally.

¶ 42 Dale also asserts that the “Commission’s decision to sustain the dismissal

erroneously relied upon the Department’s investigation report[,] which made numerous

credibility determinations wherein the testimony conflicted with the business records,” violating

his right to due process. However, Dale does not point to any credibility determinations upon

which the Commission relied. Moreover, the record shows that the Department’s determination

of a lack of substantial evidence and the Commission’s decision sustaining that determination are

well supported, despite any alleged dispute between business records and the Secretary’s

testimony. Additionally, given the record before us on appeal, the specific factual findings that

Dale disputes, even if erroneous, are immaterial and would not have created substantial evidence

of discrimination to support his charge. See Pence v. Illinois Human Rights Comm’n, 2020 IL

App (3d) 190384, ¶ 42 (affirming the Commission’s decision when disputed facts were

immaterial to that decision).

¶ 43 Last, Dale argues that the Commission’s decision was based on personal bias and

prejudice because various websites indicate that the panel members were Christian or “affiliated

with” Christian organizations. He claims that “[Christianity] in and of itself presents the high

likelihood of the risk of the publicly devout, and some might say pious, commissioners having a

bias against a Satanic Temple Member, thus warranting recusal.” Dale cites no evidence or legal

authority that supports his claim. Instead, Dale baselessly suggests that members of the Christian

faith can review only charges of discrimination made by others following the same faith.

However, Dale’s suggestion is utterly without merit because it lacks any legal or evidentiary

support to overcome the presumption that the Commission members were “objective and capable

of judging the controversy fairly.” Cannici v. Village of Melrose Park, 2019 IL App (1st)

- 12 - 181422, ¶ 58; see Arvia v. Madigan, 209 Ill. 2d 520, 541 (2004) (“[W]ithout a showing to the

contrary, state administrators are assumed to be individuals of conscience and intellectual

discipline, capable of judging a particular controversy fairly on the basis of its own

circumstances.” (Internal quotation marks omitted.)).

¶ 44 III. CONCLUSION

¶ 45 For the reasons stated, we affirm the decision of the Commission.

¶ 46 Affirmed.

- 13 -