Marcus Hayes v. Shawnee County Board of County Commissioners; Kwik Staff

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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MARCUS HAYES,
Plaintiff - Appellant,
v.
SHAWNEE COUNTY BOARD OF
COUNTY COMMISSIONERS; KWIK
STAFF,
Defendants - Appellees.
No. 25-3155
(D.C. No. 5:24-CV-04030-EFM-RES)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, MORITZ, and FEDERICO, Circuit Judges.
_________________________________
Marcus Hayes, appearing pro se, appeals the district court’s judgment in favor
of defendants on his claims of employment discrimination under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101–12213 (“ADA”). Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
May 26, 2026
Christopher M. Wolpert
Clerk of Court
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I. BACKGROUND
A. Factual History
From 2018 to 2021, Mr. Hayes provided custodial services to Shawnee
County, Kansas, through a staffing company having a contract with the County.
When that contract ended, the County contracted with Kwik Staff for temporary
custodial services. The County’s Building Supervisor, Brent Smith, encouraged
Mr. Hayes to apply to Kwik Staff, which he did. In September 2021, Kwik Staff
placed Mr. Hayes at the County’s North Annex. His custodial duties included trash
removal, cleaning rooms, taking inventory, and restocking. At the time of his
placement, Mr. Hayes informed Mr. Smith and the County’s Director of Facilities
Management, Nelda Henning, that he had a disability—a traumatic brain injury
sustained in 1995—and could work only a limited number of hours each month to
stay under the income limit so he could remain qualified to receive Social Security
disability benefits.
The County initially believed that part-time custodial services at the North
Annex would meet its needs. Mr. Smith allowed Mr. Hayes to bank hours worked in
excess of his monthly limit and draw from that bank later. But in July 2022,
Mr. Hayes got a raise, which caused him to reach his monthly income limit more
quickly. In December 2022, Ms. Henning discovered the hour-banking arrangement
and put a stop to it. As a result, Mr. Hayes began working about half the number of
hours in the final week of each month compared to the other weeks. Mr. Smith then
tried to perform Mr. Hayes’s job duties when Mr. Hayes was absent.
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In February 2023, after a North Annex employee complained to the County
about uncleanliness and lack of supplies in a facility restroom, Ms. Henning and
Mr. Smith realized that Mr. Hayes’s position required more hours than he could work
and still qualify for his disability benefits. They could not find another County
custodial position that could accommodate his hours limitation. Kwik Staff then
informed Ms. Henning that it had an alternative assignment available for Mr. Hayes,
though not at a County facility, that could accommodate his hours restriction. In
March 2023, Mr. Smith informed Mr. Hayes that his placement with the County
would end in a week, and Kwik Staff offered Mr. Hayes the alternative assignment.
But Mr. Hayes turned it down because he did not want to work the evening hours the
position required. He completely stopped working for Kwik Staff.
B. Procedural History
Mr. Hayes filed complaints of disability discrimination against the County and
Kwik Staff with the Kansas Human Rights Commission (“KHRC”) and the Equal
Employment Opportunity Commission (“EEOC”). The KHRC issued a finding of no
probable cause. The EEOC adopted that finding and issued Mr. Hayes a right-to-sue
letter on January 11, 2024.
Mr. Hayes then initiated the civil action underlying this appeal by filing a
complaint on April 15, 2024, against the County, naming its Board of County
Commissioners as the defendant. In September 2024, Mr. Hayes filed an amended
complaint that also named Kwik Staff as a defendant. He asserted both defendants
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failed to accommodate his disability and the County also wrongfully terminated his
employment, all in violation of the ADA.
Kwik Staff filed a motion to dismiss the claim against it under Federal Rule of
Civil Procedure 12(b)(6), arguing that Mr. Hayes did not name it as a defendant
within 90 days of receiving the EEOC’s right-to-sue letter, as required by 42 U.S.C.
§ 2000e-5(f)(1) (made applicable to ADA actions by 42 U.S.C. § 12117). Mr. Hayes
opposed the motion, explaining he was unaware of his claim against Kwik Staff until
he received, during discovery, the emails between Kwik Staff and Ms. Henning
mentioned above. The district court concluded the claims against Kwik Staff were
untimely, Mr. Hayes was not entitled to equitable tolling, and his amended complaint
did not relate back to the initial complaint. The court thus granted Kwik Staff’s
motion to dismiss.
The County and Mr. Hayes both filed motions for summary judgment.1 The
district court granted the County’s motion and denied Mr. Hayes’s motion. The court
noted that the parties disputed whether Mr. Hayes was disabled within the meaning of
the ADA, but concluded that even if he was, he did not establish any other elements
of a prima facie case of either failure to accommodate his disability or wrongful
termination based on his disability.
Mr. Hayes appeals.
1 Mr. Hayes also filed a motion for judgment on the pleadings, which the
district court denied on the merits, and a second motion for summary judgment,
which the district court denied as filed out of time. Mr. Hayes raises no appellate
challenge to either of these rulings.
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II. DISCUSSION
A. Waiver
Because Mr. Hayes represents himself, we construe his filings liberally, but we
cannot act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008). But even reading his opening appellate brief liberally, we see no argument
that the district court erred in granting Kwik Staff’s motion to dismiss. He has
therefore waived appellate review of that ruling. See Sawyers v. Norton, 962 F.3d
1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed
abandoned or waived.” (quotations omitted)).2
We doubt whether Mr. Hayes has adequately addressed the district court’s
ruling on the cross-motions for summary judgment—whether he was qualified for the
custodial position with or without accommodation, and whether he suffered an
adverse employment action. See id. (arguments “inadequately presented” in an
“opening brief are deemed abandoned or waived” (quotations omitted)).
Nonetheless, we will address that ruling.
2 In his reply brief, Mr. Hayes reiterates his district-court argument that he was
unaware of his claim against Kwik Step until he received the emails between Kwik
Staff and Ms. Henning in discovery. This argument comes too late. See Sierra Club
v. Okla. Gas & Elec. Co., 816 F.3d 666, 676 n.9 (10th Cir. 2016) (“We generally do
not consider arguments raised for the first time in a reply brief.”) Even if we were to
reach the merits of this issue, we would affirm for substantially the same reasons the
district court gave for granting Kwik Staff’s motion to dismiss.
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B. Summary Judgment for the County
1. Standard of Review
We review de novo a district court’s decision to grant summary judgment,
applying the same standard governing the district court. United States v. Sup. Ct. of
N.M., 839 F.3d 888, 906 (10th Cir. 2016). Summary judgment is proper if “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Typically, when “we are presented with
cross-motions for summary judgment, we must view each motion separately, in the
light most favorable to the non-moving party, and draw all reasonable inferences in
that party’s favor.” Sup. Ct. of N.M., 839 F.3d at 906–07 (internal quotation marks
omitted). In this case, the disposition of each motion turns on the same issues, so the
summary-judgment inquiry collapses into one analysis.
2. Analysis
Among other things, the ADA prohibits a “covered entity” from (1) engaging
in disability discrimination “against a qualified individual” regarding “discharge,”
42 U.S.C. § 12112(a), and (2) failing to make “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee,” § 12112(b)(5)(A). When considering
ADA discrimination claims on summary judgment, courts apply the McDonnell
Douglas burden-shifting approach. See Carter v. Pathfinder Energy Servs., Inc.,
662 F.3d 1134, 1141 (10th Cir. 2011) (discussing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973)). Under that approach, the plaintiff “bears the
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initial burden of establishing a prima facie case of discrimination.” Id. If successful,
the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory
reason for its actions.” Id. (internal quotation marks omitted). If the defendant does
so, the burden shifts back to the plaintiff to show the defendant’s proffered
justification is “a pretext designed to mask discrimination.” Id. A court should deny
summary judgment if there is any genuine dispute of material fact regarding each
element of the plaintiff’s prima facie case or disputing the defendant’s rebuttal.
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1179 (10th Cir. 1999) (en banc).
A prima facie case for failure to accommodate and wrongful termination share
two requirements, a showing that the plaintiff is (1) “disabled” and (2) “qualified”
within the meaning of the ADA. Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975,
989 (10th Cir. 2021) (wrongful-discharge claim); see id. at 992 (same with respect to
failure-to-accommodate claim). Each prima facie case has a separate third
requirement. Failure to accommodate requires the plaintiff to show that he
“requested a plausibly reasonable accommodation.” Id. at 992. Wrongful
termination requires the plaintiff to show he “suffered an adverse employment action
because of [his] disability.” Id. at 989–90.
In his opening brief, Mr. Hayes argues at length that he is disabled within the
meaning of the ADA and that the County knew he was disabled. We need not
address that issue. Even if we, like the district court, assume he is disabled under the
ADA, and we further assume the County knew he was disabled, he has not shown he
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was qualified under the ADA or that he suffered an adverse employment action by
the County because of his disability.
To be qualified under the ADA, an individual must be able to “perform the
essential functions” of his job “with or without reasonable accommodation.”
42 U.S.C. § 12111(8). One such accommodation is providing “part-time or modified
work schedules.” § 12111(9)(B). “[A]n employee who proposes this
accommodation may only prevail in an ADA action if he can demonstrate that he
could perform the essential functions of the job while working part-time.” Carter,
662 F.3d at 1146 (internal quotation marks omitted).
Mr. Hayes requested a part-time or modified work schedule when he informed
the County of his hours restriction. Although the County was able to accommodate
that request for some time, it ultimately became clear that Mr. Hayes could not fully
perform the essential functions of the custodial position while working less than
full-time. Mr. Smith tried to take up the slack, but the County received a complaint
about the lack of cleanliness and supplies in a North Annex bathroom. Mr. Hayes
thus failed to establish the second element of a prima facie case for both his
failure-to-accommodate claim and his wrongful-termination claim.
Mr. Hayes’s wrongful-termination claim against the County also fails because
he did not show he was discharged because of his disability. As the district court
explained, Mr. Hayes was a Kwik Staff employee, not a County employee, and the
County released him only after it became clear the custodial position required more
hours than he could work. After his release, Kwik Staff offered him a position that
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could accommodate his hours restriction, but he turned it down. Thus, nothing in the
record supports that he experienced an adverse employment action because of his
disability.
C. Procedural arguments
Mr. Hayes argues the district court did not properly consider evidence he
submitted regarding his disability and defendants’ knowledge of his disability,
including sworn witness statements, video recordings showing that his supervisors
had discussed his earnings limitation, and Social Security disability documentation.
But the County says there are no sworn witness statements, and we are unable to
locate any in the record. And our review of the record indicates the district court
considered both his video evidence and evidence that he received disability benefits.
Moreover, Mr. Hayes has not shown how any of the purportedly overlooked evidence
would entitle him to reversal, nor do we see how it could. Like the district court, we
have assumed he is disabled within the meaning of the ADA and that defendants
knew he was disabled. Thus, Mr. Hayes fails to show how the district court
committed any reversible procedural error in resolving defendants’ dispositive
motions.
Mr. Hayes also argues that the KHRC and the EEOC demonstrated
institutional bias against him. But neither entity is a party to this case, so his
argument is misplaced.
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III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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