Wheeler v. Taco Shop

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAMON L. WHEELER, )
)
Plaintiff, )
)
v. ) Case No. 25-1176- JWB-GEB
)
TACO SHOP. )
)
Defendant. )
)
ORDER AND REPORT AND RECOMMENDATION
This matter is before the Court regarding Plaintiff’s Complaint (ECF No. 1), filed
on August 15, 2025, alleging disability and religious discrimination, retaliation, and
presumably FLSA claims. The same day, Plaintiff supplemented his Complaint with a
Motion and Order to Show Cause (ECF No. 4), seeking to add additional facts in support
of his claims. Since pro se filings are liberally construed, the Court further considered in
aggregate, the facts presented in Plaintiff’s Motion for Order to Show Cause (ECF No. 4)
and Plaintiff’s Supplement (ECF No. 5) for screening.1 For the reasons set forth herein,
the Court RECOMMENDS DISMISSAL IN PART of Plaintiff’s claims (ECF No. 1)
for religious discrimination under the Religious Freedom Restoration Act (“RFRA”), 42
U.S.C. § 2000bb-1(a)-(b) and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., for failure to state a claim. Plaintiff’s claim for disability
1 Hall v. Bellmon, 935 F. 2d 1106, 1110 (10th Cir. 1991).
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discrimination per the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 should
be permitted to proceed.
I. NOTICE
Within fourteen (14) days after Plaintiff is served with a copy of this Report and
Recommendation, he may, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P.
72(b)(2) file written objections to the same. Plaintiff must file any objections within the
time prescribed in the event he seeks appellate review of the proposed findings of fact,
conclusions, of law, or recommended disposition.
II. BACKGROUND2
Plaintiff filed his Complaint and Financial Affidavit on August 15, 2025.3 On the
same date, Plaintiff further supplemented the facts of his Complaint with a paragraph
length pleading labeled Motion for Order to Show Cause (ECF No. 4). A few weeks later,
on September 3, 2025, Plaintiff filed his Right to Sue letter relating to the named Defendant
issued by the Equal Employment Opportunity Commission (“EEOC”) on August 22, 2025,
which was after the Complaint was filed.4 Upon review of Plaintiff’s combined pleadings,
he asserts federal jurisdiction under the following federal statutes and regulations: 1) Title
VII, 42 U.S.C. § 2000e et seq.; 2) 29 C.F.R § 525 (a federal regulation implementing
sections of the Fair Labor Standards Act (“FLSA”) that allows disabled workers to be paid
2 Unless otherwise indicated, the information recited in this section is taken from the Complaint
(ECF No. 1) or the Motion (ECF No. 4). This background information should not be construed as
judicial findings or factual determinations.
3 ECF No. 3-1, sealed.
4 ECF No. 5.
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for their work at “special minimum wage rates below the rate that would otherwise be
required by statute”);5 3) 29 C.F.R. § 1630.12 (the Americans with Disabilities Act’s
(“ADA”) implementing regulations against retaliation and coercion); 4) 42 U.S.C. §
2000bb-1(a)-(b) the Religious Freedom Restoration Act (“RFRA”);6 and 5) 28 C.F.R. § 38
(a federal regulation for faith-based organizations that apply for, or participate in, social
service programs supported with federal financial assistance).
Liberally construing Plaintiff’s pleadings and the factual support within them, the
Court understands Plaintiff’s claims to be for employment discrimination per: 1) the ADA
and; 2) for religious discrimination by his former employer, Taco Shop, under either Title
VII, or potentially the RFRA. Plaintiff contends the Defendant violated the ADA when
they terminated him, with knowledge of his disability, after he notified his shift lead of his
need for a variety of accommodations to be implemented “during his shift.” Plaintiff
specified his disability and contends he was still capable of performing all of the duties of
the job, while taking his prescribed medications. Plaintiff contends after he notified the
shift lead of his requested accommodations, he was retaliated against by his coworkers
through “hideous remarks regarding [his] disorder.”7 Plaintiff indicates his employment
was terminated on July 18, 2025.8
5 29 C.F.R § 525.1.
6 See Ramirez v. Collier, 595 U.S. 411, 424 (2022) (aimed at providing more protection for
religious exercise than is available under the First Amendment).
7 ECF No. 1 at 10.
8 ECF No. 1 at 9.
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Plaintiff then asserts, while he was working the same day, Defendant discriminated
against his religion and wrongfully terminated his employment following a “disagreement
with a customer about his religious tattoo.” According to Plaintiff, the tattoo is a “national
manifestation” from his membership in a “structuralized Latino organization.” He then
contends his shift lead retaliated against him, and his manager ended up sending him
home.9 Again, Plaintiff’s employment was ultimately terminated and, as a result, he seeks
his lost wages.
Since Plaintiff neither makes factual references to wage and hour accommodations
or funding for faith-based organizations, nor states a cause of action under either federal
regulation cited, the Court initially recommends dismissal of any claims Plaintiff makes
under 29 C.F.R § 525 or 28 C.F.R. § 38. The undersigned cannot identify a need to address
the federal regulation claims further. The Court further recommends dismissal of any claim
Plaintiff makes for religious discrimination as reasoned below, but Plaintiff’s ADA claims
should proceed on the facts alleged.
III. RECOMMENDATION
When a party seeks to proceed without the prepayment of fees, the in forma pauperis
statute, 28 U.S.C. § 1915, requires the court to screen the party’s complaint. Under § 1915,
sua sponte dismissal of this case is required if the court determines the action: 1) is
frivolous or malicious; 2) fails to state a claim upon which relief may be granted; or 3)
seeks relief from a defendant who is immune from suit. The purpose of § 1915(e) is “the
9 ECF No. 4.
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prevention of abusive or capricious litigation.”10 After application of these standards, the
undersigned finds Plaintiff has stated a potentially cognizable claim for discrimination
pursuant to the ADA and believes his claim should proceed.11 However, the undersigned
recommends dismissal of Plaintiff’s RFRA and Title VII claims for failure to state a claim
under 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff has not established a claim for religious discrimination by his employer.
Fed. R. Civ. P. 8(a)(2) requires that a complaint include a “short and plain statement of the
claim showing that the pleader is entitled to relief.” This requires the complaint state more
than “labels and conclusions” and “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”12 Because Plaintiff proceeds pro se, his pleadings must
be liberally construed.13 However, he still bears the burden to allege “sufficient facts on
which a recognized legal claim could be based”14 and the Court cannot “take on the
10 Harris v. Campbell, 804 F. Supp. 153, 155 (D. Kan. 1992) (quoting Neitzke v. Williams, 490 U.S.
319, 324 (1989) (citing language contained in § 1915(d), prior to the statute’s amendment in
1996)).
11 See EEOC v. Picture People, Inc., 684 F.3d 981, 985 (10th Cir.2012) (“A prima facie case of
disability discrimination under the ADA requires that the Employee (1) be a disabled person as
defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the
essential functions of the job held or desired; and (3) suffered discrimination by an employer or
prospective employer because of that disability.”); Carter v. Pathfinder Energy Services, Inc., 662
F.3d 1134, 1142 (10th Cir.2011) (quoting Berry v. T–Mobile USA, Inc., 490 F.3d 1211, 1216 (10th
Cir. 2007) (internal quotation marks omitted)) (“A person is ‘disabled’ under the ADA if he has ‘a
physical or mental impairment that substantially limits one or more major life activities.’ 42 U.S.C.
§ 12102(1)(A). To satisfy this definition, ‘a plaintiff must (1) have a recognized impairment, (2)
identify one or more appropriate major life activities, and (3) show the impairment substantially
limits one or more of those activities.’”).
12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
13 Hall, 935 F. 2d at 1110.
14 Id.
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responsibility of serving as [his] attorney in constructing arguments and searching the
record.”15 Finally, Fed. R. Civ. P. 8 “demands more than naked assertions.”16
Under Fed. R. Civ. P. 8(a), every complaint must contain three minimal pieces of
information: 1) the pleading should contain a short and plain statement of the claim
showing Plaintiff is entitled to relief; 2) a short and plain statement of the grounds for the
Court’s jurisdiction; and 3) a statement of the relief requested. If any of these requirements
are absent, even after providing a liberal construction to Plaintiff’s Complaint, the court “is
compelled to recommend that the action be dismissed.”17 Mere “allegations of conclusions
or opinions are not sufficient when no facts are alleged by way of the statement of the
claim.”18
The Court, as required, has construed Plaintiff’s Complaint liberally.19 Plaintiff
simply does not provide any facts to allow this Court to find a statutory basis for a claim
of religious discrimination to proceed. As an initial matter, Plaintiff alleges his religious
discrimination claim is pursuant to the RFRA. However, he also alludes to bringing forth
the claim pursuant to Title VII. It is Plaintiff’s prerogative as to whether he brings his claims
under the RFRA and/or Title VII for employment discrimination. But different elements
15 Mays v. Wyandotte County Sheriff's Dep’t, 419 F. App’x 794, 796 (10th Cir. 2011) (internal edits
omitted) (citing Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)).
16 Cohen v. Delong, 369 F. App’x 953, 957 (10th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662
(2009)).
17 Snider v. Burton, No. 15-1043-JTM, 2015 WL 867423, at *2 (citing requirements under Rule
8), report and recommendation adopted, No. 15-1043-JTM, 2015 WL 1442096 (D. Kan. Mar. 30,
2015).
18 Id. (quoting Bryan v. Stillwater Bd. of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977)); see also
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984).
19 Abdelsamed v. United States, 13 F. App’x 883, 884 (10th Cir. 2001).
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and standards of proof apply to each type of claim. In order to determine whether Plaintiff
has pled a plausible claim for relief under a statute—in this case, the RFRA or Title VII—
the Court must know the statute on which Plaintiff’s claims are based.
Although the Court liberally construes pro se complaints, it “will not ... construct a
legal theory on plaintiff's behalf.”20 That said, whether the claim is under the RFRA or Title
VII, the Complaint fails to state a plausible claim for relief. To the extent Plaintiff intends
to allege claims under the RFRA, the ultimate questions are: 1) whether the Government
has “substantially burden[ed]” Plaintiff's “exercise of religion;” 2) whether the application
of the burden to Plaintiff is “in furtherance of a compelling governmental interest;” and 3)
is it “the least restrictive means of furthering that compelling governmental interest.”21 For
such a claim to proceed past screening, the Court must determine whether Plaintiff has
made a plausible claim the government has substantially burdened his personal exercise of
his religion.22 Plaintiff makes no such allegations involving the government, and the
incident, as pled.
Further, Plaintiff fails to state a cognizable claim under Title VII for religious
discrimination. Title VII prohibits an employer from discharging “any individual ...
because of such individual's ... religion.”23 The statute imposes an obligation on the
employer “to reasonably accommodate the religious practices of an employee or
prospective employee, unless the employer demonstrates that accommodation would result
20 See Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997).
21 42 U.S.C. § 2000bb-1(a)-(b).
22 See Srader v. U.S., No. 23-3178-JWL, 2023 WL 5835029, at *6 (D. Kan. Sept. 8, 2023).
23 42 U.S.C. § 2000e–2(a)(1).
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in undue hardship on the conduct of its business.”24 The appropriate prima facie case for a
Title VII discriminatory discharge claim based on religion requires a showing that: “(1) he
or she has a bona fide religious belief that conflicts with an employment requirement; (2)
he or she informed the employer of this belief; (3) he or she was disciplined for failure to
comply with the conflicting employment requirement.”25
While Rule 8 does not require Plaintiff to state precisely each element of his claims
or describe every fact with specific detail, it does require him to set forth sufficient factual
allegations on which a recognized legal claim could be based.26 Labels or allegations of
conclusions are insufficient when no facts are alleged.27 But the absence of facts to
plausibly support Plaintiff’s claim here makes it impossible for Defendant to have fair
notice of what is being alleged against them.28 There are simply no facts alleged which
tend to support Defendant discriminated against Plaintiff based on his religion, on the
specific day in question, or even during the time period he was employed. Plaintiff does
not allege any requirement of employment that conflicted with the display of his tattoo.
Nor do the facts alleged support Plaintiff ever informed the Defendant of the tattoo’s
24 Thomas v. Natl. Ass'n of Ltr. Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000) (citing 29 C.F.R. §
1605.2(b)(1), (2) (1999)) (internal citations omitted).
25 Banks v. Serv. Am. Corp., 952 F. Supp. 703, 708 (D. Kan. 1996) (citing Turpen v. Missouri–
Kansas–Texas R. Co., 736 F.2d 1022, 1026 (5th Cir.1984)); Williams v. Potter, 316 F. Supp. 2d
1122, 1136 (D. Kan. 2004), aff'd, 149 Fed. Appx. 824 (10th Cir. 2005) (unpublished).
26 Henderson v. Ojile, No. 97-4098-SAC, 1997 WL 723432, at *2 (D. Kan. Oct. 31, 1997); Hall,
935 F.2d at 1110.
27 Id.; Singleton v. Convergys Corp., No. 16-2614-DDC, 2016 WL 11397820, at *2 (D. Kan. Sept.
21, 2016).
28 Weaver v. City of Topeka, No. 94-4224-SAC, 1995 WL 783628, at *7 (D. Kan. Dec. 12, 1995),
aff’d, 103 F.3d 145 (10th Cir. 1996) (holding complaint offering no facts to support legal
conclusion fails to give defendants fair notice).
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significance. Plaintiff also never contends he was disciplined by his employer over his
tattoo on the day in question or was ever confronted during his employment about the
tattoo.
Instead, the facts contend Plaintiff was sent home over an interaction with a Taco
Shop customer about the religious emblem, not an interaction directly with the Defendant,
the employer. Even so, amendment with these facts would remain futile where the same
flaw in attaching Title VII employment discrimination liability for religious discrimination
would exist. The pleadings for this claim simply fail to construct a cognizable claim against
the Defendant for religious discrimination. A pro se claim may be dismissed if it clearly
fails to state a legally cognizable claim, and it is not the Court’s duty to become an advocate
for the pro se litigant.29 Therefore, the Court RECOMMENDS dismissal under 28 U.S.C.
1915(e)(2)(B)(ii) of Plaintiff’s claims under Title VII for failure to state a claim upon which
relief may be granted.30
IV. CONCLUSION
For the reasons described above, IT IS THEREFORE ORDERED Plaintiff’s
ADA claim be permitted to proceed.
29 Hall at 1110.
30 See, e.g., El-Sattam v. Minnenger, No. 95-4180-SAC, 1995 WL 783206 (D. Kan. Nov. 16, 1995)
(dismissing complaint under Rule 8 for failure to allege facts supporting a recognized claim for
relief); Ferris v. Fed. Law, No. 97-4239-SAC, 1997 WL 833299 (D. Kan. Dec. 18, 1997) (same);
see also Weaver, 1995 WL 783628, at *7 (“The court should dismiss pro se claims ‘which are
supported only by vague and conclusory allegations.’”) (quoting Northington v. Jackson, 973 F.2d
1518, 1521 (10th Cir. 1992)).
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IT IS FURTHER ORDERED although service of process is traditionally
undertaken by the clerk of court pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3),
the clerk is directed to stay service of process pending review of this Report and
Recommendation.
IT IS THEREFORE RECOMMENDED Plaintiff’s claims under 29 C.F.R § 525
and/or 28 C.F.R. § 38 be dismissed for failure to state a claim per 28 U.S.C.
1915(e)(2)(B)(ii).
IT IS FURTHER RECOMMENDED Plaintiff’s RFRA and Title VII claims, as
identified above, be DISMISSED for failure to state a claim upon which relief may be
granted per 28 U.S.C. 1915(e)(2)(B)(ii).
IT IS FURTHER ORDERED a copy of this recommendation shall be mailed to
Plaintiff by certified mail.
IT IS SO ORDERED.
Dated this 11th day of March 2026 at Wichita, Kansas.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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