In July, the 6th Circuit issued its opinion in Kean v. Brinker International, Inc., affirming the lower court’s denial of summary judgment to the employee, reversing its grant of summary judgment to the employer, and vacating its refusal to impose heavier evidentiary sanctions on the employer.[1]

Termination for Not “Living the Chili’s Way”

This suit arose from the termination of a 59-year-old employee, who was general manager of one of the most profitable Chili’s restaurants in the Nashville market.[2]  The employee was allegedly terminated for creating a toxic culture and “not living the Chili’s way.”[3] He then was replaced as general manager by an employee more than 25 years younger than him with no managerial experience.[4] The employee filed suit for age discrimination under the Age Discrimination in Employment Act (ADEA).[5]

Of course, the ultimate question boiled down to “why did the employer fire the employee?”[6] Unfortunately for the employer, “[t]he answer is complicated,” as no one at Chili’s could remember why they actually fired the employee, and the employer destroyed all original documents related to his employment and the reason for his termination.[7]

As evidence of age discrimination, the employee highlighted that he was one of the oldest managers in the region, and that other members of management would call him “Old Man,” “Pops,” and “Grandpa,” and talk about his “old-school” management style.[8] He also claimed the employer had a trend of terminating older employees and replacing them with younger ones.[9]

Meanwhile, the employer’s proffered reason for his termination (toxic “culture”) seemed curious because by every objective measure, the employee was a high performing manager and received positive reviews on engagement surveys from those he managed.[10] Furthermore, the ultimate decision-maker had never even visited the restaurant the employee managed prior to the meeting at which he was terminated, so it was unclear how she could know anything of the location’s “culture.”[11]

No Independent Recollection

A few days after his termination, the employee notified the employer that he was suspicious of the reason for his termination, particularly in light of the lack of documentation, and would “get to the bottom of this with his attorney.”[12] Despite the employee’s comment, the employer failed to maintain any documentation regarding the employee, including performance reviews and all emails related to his termination.[13] In a sentence every defense attorney is sure to hear echo in their nightmares, the 6th Circuit noted that “[c]ompounding the destruction of relevant evidence, not one of the involved management team ... has any independent recollection of either their role in terminating [employee] or why the decision was made.”[14] Rather, “[t]he only individual with any independent recollection of the relevant events is [employee] himself.”[15]

In fact, the only document available at all was a report compiled by the employer after the employee’s termination that apparently contains personal notes and copies of emails circulated amongst members of the management team (the report).[16] This document had not been turned over to the EEOC as part of its investigation.[17] Over the employee’s objections, the district court found the report admissible and relied on it in its ultimate decision in the employer’s favor.[18]

The District Court’s Decision

Despite this evidentiary quagmire, the district court granted the employer summary judgment, finding that while the employee had made out his prima facie case, he had not rebutted the employer’s proffered legitimate reason for his termination (i.e., his purported failure to live the Chili’s way).[19] The district court also granted in part and denied in part the employee’s motion for evidentiary sanctions.[20] While the court required the employer to pay the employee’s fees and costs, it refused to impose any additional sanctions.[21] It based its refusal on the fact that the employer’s failure to implement a consistent document-retention policy and failure to implement a litigation hold was “grossly negligent” but not “intentional.”[22] Additionally, the district court denied the employee’s motion for summary judgment.[23]

The 6th Circuit Finds the Report Inadmissible & Orders Consideration of Sanctions

First, the 6th Circuit took issue with the district court’s admission of the report. The court noted that Federal Rule of Evidence 901 (Rule 901) is clear that a proponent must be able to produce evidence sufficient to support a finding that the item is what the proponent claims it is.[24] Unfortunately for the employer, the alleged author of the document testified that she had “no independent recollection” of the subject matter of the report or its creation.[25] The court took this to mean that she effectively disclaimed authorship.[26] The only witness the employer did proffer to authenticate the document (1) did not author the document, (2) did not witness its creation, and (3) had not discussed its creation with others.[27] Accordingly, the court found she did not have personal knowledge of the report and could not authenticate it.[28] The court further highlighted that the employers “lack of a document-retention policy and subsequent failure to implement a litigation hold has contributed almost exclusively to this gap in the record.”[29]

Furthermore, the 6th Circuit held that the report on its face appeared incomplete, as some unattributed comments were located in the document.[30] Additionally, there was nothing to assure the court that relevant emails were not omitted, a possibility the court found “troubling.”[31] Based upon all of this, the 6th Circuit ultimately found that the report was inadmissible under Rule 901,[32] and ultimately vacated the district court’s ruling on sanctions, remanding the matter “so the district court can determine an appropriate sanction beyond fees and costs” for the employer’s spoliation of evidence[33].

The 6th Circuit Finds Employee Has Created a Genuine Issue of Fact as to Pretext

Next, the 6th Circuit found that, particularly in light of the inadmissibility of the report, the employee had alleged sufficient facts to allow a trier of fact to find the employer’s proffered reason for the employee’s termination was pretextual.[34] The court noted that “despite stating that ‘culture’ was the reason for [employee’s] termination, the employer did not rely on any of its objective metrics for evaluating ‘culture.’”[35] Second, the employer “did not appear to follow its own policy and procedures in terminating” the employee.[36] Finally, the employee had offered evidence that the employer “was cultivating a youthful ‘culture’ at Chili’s” that he did not fit.[37] Altogether, the 6th Circuit felt that this constellation of evidence could guide a reasonable jury to find that the employer’s proffered reason was in fact pretext.[38] Accordingly, the 6th Circuit reversed the lower court’s grant of summary judgment to the employer.[39]

Moving Forward

Kean serves as a firm reminder to employers and their counsel that appropriate, contemporaneous documentation is still king when it comes to defending an adverse employment action. It might also be a good reminder for defense counsel to review document-retention policies with clients and ensure that clients know when a litigation hold is needed. Furthermore, documentation should be carefully preserved, especially when an employee or former employee has hinted at getting an attorney or pursuing litigation.

Bethany Westcott Wilson is an associate of Kramer Rayson LLP in Knoxville where she practices labor and employment law, focusing on complex federal and state leave law issues. She graduated from Lee University in 2017 and The University of Tennessee College of Law in 2024.