Wheeler v. Taco Shop

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAMON L. WHEELER,
Plaintiff,
v. 	Case No. 25-1176-JWB
TACO SHOP,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Magistrate Judge Gwynne E. Birzer’s Report and
Recommendation (“R&R”) that Plaintiff’s claims be dismissed in part for failure to state a claim.
(Doc. 8.) Plaintiff had fourteen days from service of the R&R to object. According to the tracking
number, the mail was never delivered and returned to sender as unclaimed. 	(Id.; Doc. 9.)
Therefore, despite the lack of an objection, this court will evaluate Plaintiff’s claims on the merits.
I. 	Facts
The following facts are taken from Plaintiff’s complaint. 	(Doc. 1.) 	The court assumes
their truth for purposes of this order. 	Plaintiff Damon L. Wheeler is a former employee of the
Taco Shop located at 1010 E. Harry in Wichita, Kansas. (Id. at 1, 10.) He brings this action against
his former employer pro se. (Id. at 1.) He invokes a series of federal regulations and statutes that
purportedly form the basis for his claims. (Id. at 3.) Principally though, it appears that his claims
arise under Title VII of the Civil Rights Act, the Americans with Disabilities Act (“ADA”), and
likely, the Religious Freedom Restoration Act (“RFRA”). (Id. at 3, 7.)
Plaintiff alleges that on July 16, 2025, Defendant did not accommodate Plaintiff despite
knowing he suffered from a disability, in violation of the ADA. (Id.) Plaintiff has “schizoaffective
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disorder.” (Id. at 9.) He explained that he was on medication for this disorder and his employer
let Plaintiff’s coworkers make “hideous remarks regarding” his disorder. 	(Id. at 10.) 	This
apparently constituted retaliation against Plaintiff, who was sent home and terminated on July 18,
2025. (Id. at 3.)
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on August 6, 2025. (Id. at 8.) He was issued a right to sue letter on August
22, 2025. (Doc. 1-2.) Plaintiff’s complaint states that he is a “Christian – national manifestation
of a reformed member of a structuralized Latino organization.” (Doc. 1 at 9.) For these troubles,
he seeks an award of $10,000 in lost wages. (Id. at 11.)
Plaintiff supplements his allegations in an attachment to his complaint. Plaintiff explains
that he was sent home “due to a disagreement with a customer about his religious tattoo that
plaintiff Damon L. Wheeler has on his skin in the national manifestation from Mr. Wheeler being
a reformed member of a structuralized latino organization.” 	(Doc. 1-1 at 1.) 	Plaintiff further
alleges that he notified Taco Shop of a need for disability accommodation and was retaliated
against. 	(Id.) 	He also claims that the shift lead, Alex, was the one who retaliated against him.
(Id.) The general manager, Kyle, sent Plaintiff home. (Id.)
The magistrate judge recommended that Plaintiff’s claims be dismissed in part for failure
to state a claim. (Doc. 8 at 1.) Specifically, she recommended that Plaintiff’s RFRA and Title VII
claims be dismissed, but that his ADA claim could proceed. 	(Id.) 	This court will review the
magistrate judge’s order de novo, even though the court has not received any objections from
Plaintiff. After review, the court dismisses the entire action for failure to state a claim.
II. 	Standard
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On a dispositive matter the district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). A
failure to properly object, however, leaves a party with no entitlement to appellate review, and
allows the district court to review the R&R under any standard it deems appropriate. See Williams
v. United States, No. 19-2476-JAR-JPO, 2019 WL 6167514, at *1 (D. Kan. Nov. 20, 2019) (citing
United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996)) (“The Tenth
Circuit requires that objections to a magistrate judge's recommended disposition ‘be both timely
and specific to preserve an issue for de novo review by the district court . . .’”).
III. 	Analysis
A. 	Religious Discrimination
The court agrees with the magistrate judge’s determination that “Plaintiff has not
established a claim for religious discrimination by his employer.” 	(Doc. 8 at 5.) 	Likewise, the
court agrees that this is because Plaintiff has failed to comply with Rule 8. (Id. at 5–6.) As the
magistrate judge explained, Plaintiff has indicated his religious discrimination claims fall under
both the RFRA and Title VII. 	If Plaintiff’s claim falls under the RFRA, it requires an allegation
that the government burdened his exercise of religion. 42 U.S.C. § 2000bb-1. Plaintiff’s complaint
does not plead any allegations involving the government.
Title VII, by contrast, applies to private parties like Defendant. 42 U.S.C. § 2000e-2(a)(1).
But like the magistrate judge, this court finds that Plaintiff cannot maintain a Title VII claim for
religious discrimination on the pled facts. A prima facie case of Title VII discrimination requires
allegations that “(1) [Plaintiff] had a bona fide religious belief that conflicted with an employment
requirement; (2) [he] informed the employer of this belief; and (3) [his] employer disciplined [him]
because [he] did not comply with the conflicting employment requirement.” Williams v. Potter,
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316 F. Supp. 2d 1122, 1136-37 (D. Kan. 2004) (citing Thomas v. Nat’l Ass’n of Letter Carriers,
225 F.3d 1149, 1155 (10th Cir. 2000)). As the magistrate judge explained, there are no allegations
that Defendant even knew of Plaintiff’s religious tattoo or its significance. 	(Doc. 8 at 8–9.)
Moreover, Plaintiff’s own allegations state that he was “sent home” because of a dispute with a
customer over the tattoo, not over a dispute with Taco Shop. (Doc. 1-1 at 1.) Therefore, the court
agrees with the magistrate judge and dismisses Plaintiff’s religious discrimination claims.
B. 	Disability Discrimination
The magistrate judge did not greatly detail the reasons for recommending Plaintiff’s ADA
claim proceed. (See generally Doc. 8 at 1–10.) This court disagrees that the ADA claim should
proceed as the complaint lacks sufficient factual matter to make out an ADA claim. To properly
plead a claim of ADA employment discrimination a plaintiff must plead “(1) [he] is disabled within
the meaning of the ADA; (2) [he] is qualified, with or without reasonable accommodation, to
perform the essential functions of the job held or desired; and (3) [he] was discriminated against
because of [his] disability.” Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1266 (10th Cir.
2015) (quoting Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1118 (10th Cir. 2004) (internal
quotation marks omitted)). While this burden is “not onerous,” Plaintiff has failed to meet it here.
Id. (quoting Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 883 (10th Cir. 2015) (internal
quotation marks omitted)).
The court finds that Plaintiff has likely pled that he is disabled within the meaning of the
ADA. (Doc. 1 at 3, 9.) The court also finds that Plaintiff has likely pled that he is qualified for
the job he held. 	(Doc. 1-1 at 1.) 	But Plaintiff has not pled that he was discriminated against
because of his disability. 	Plaintiff alleges that he was sent home and terminated following a
disagreement with a customer. (Id.) But this disagreement was, on Plaintiff’s own telling, related
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to his apparently religious tattoo not his disability. 	(Id.) 	The only other discrimination that
Plaintiff alleges is that Defendant let Plaintiff be mocked by coworkers making “hideous remarks.”
(Doc. 1 at 10.) The court is skeptical that this one fact is sufficient to plead discrimination under
the ADA. Plaintiff provides no other context about the remarks, such as who made them, and what
they specifically said. 	Even given the liberal pleading standard afforded to pro se litigants the
allegations here are very sparse on facts, and therefore the court dismisses Plaintiff’s claims.
C. 	Other Claims
As mentioned previously, Plaintiff raises multiple provisions from the Code of Federal
Regulations in his complaint. The court agrees with the magistrate judge that these regulations are
inapposite to this case and without an identifiable cause of action, they cannot be utilized as the
basis for a claim. (Doc. 8 at 4.) Therefore, any claims Plaintiff seeks to raise under 29 C.F.R. §
525 or 28 C.F.R. § 38 are dismissed for failure to state a claim. (Doc. 1 at 3.)
IV. 	Conclusion
For the foregoing reasons, Plaintiff’s complaint is DISMISSED without prejudice.
IT IS SO ORDERED. Dated this 29th day of April, 2026.
s/ John W. Broomes
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
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