Among the first questions I ask when investigating a lawsuit accusing my client of discriminatory conduct is, “Who made the decision?”
The reasons are simple.
First, an adverse employment action – like termination, demotion, or failure to hire – doesn’t just happen. A person makes the decision.
Second, claims of employment discrimination turn on that person’s motivations. Did the person take the adverse action because of the plaintiff’s protected characteristic? Did that characteristic play a part in the decision?
Winning or losing often comes down to how well the decisionmaker can explain the reasons for an adverse action and show that they were not a pretext for discrimination.
When I have been lucky enough to be involved in the decision-making process, I counsel the employer on the importance of having a decisionmaker who will take ownership and, if necessary, be able to explain it credibly and convincingly to a jury.
It’s one thing for several managers to agree that an employee needs to be made available to the job market. It’s quite another for one of them to own it.
A recent opinion of the U. S. Court of Appeals for the Sixth Circuit reveals what can happen when no one steps up.
“Living the Chili’s way.” Apparently, it’s a thing.
The following is from the opening paragraph of the Court’s opinion. I doubt it gave Chili’s much comfort for what was coming in the main course.
Jeff L. Kean was fifty-nine years old and working as a General Manager at one of the most profitable Chili’s restaurants in the Nashville market when he was terminated and replaced by a thirty-three-year-old with no managerial experience. Chili’s reasons for this are that Kean was creating a toxic “culture” and “not living the Chili’s way” … Despite Chili’s explanations for his termination, by all objective measures, Kean’s restaurant was one of the top performers in his market. So why did Chili’s fire Kean? The answer is complicated.
Rather than get bogged down in those complications, I will turn the dial to flash fry and dish out just enough background to provide the required context.
In September 2018, Mr. Kean was assigned to a new supervisor, Marsha Gilbert.
Over the next several months, one of Ms. Gilbert’s good friends complained about Mr. Kean, and a former employee complained that Mr. Kean wrongfully terminated him.
On November 27, 2018, after Ms. Gilbert and Regional HR Manager Hector Aponte “agreed” that Mr. Kean should be terminated, Ms. Gilbert notified Mr. Kean of his separation.
The next day Mr. Kean called Kristin Stofer, a Team Member Relations Specialist, to complain about age discrimination and say that “he was getting a lawyer.”
During the months before that call, Ms. Stofer kept a report with notes about the employee complaints and copies of emails between Ms. Gilbert, Mr. Aponte, and others.
Mr. Kean sued, and a federal judge in Tennessee granted summary judgment to Chili’s, based primarily on the content of Ms. Stofer’s report.
As the court saw it, the report captured the essence of the reasons for Mr. Kean’s termination, and he failed to show that they were a pretext for discrimination.
Mr. Kean appealed, the Sixth Circuit reversed, and now we can get to the lessons.
A decision without a maker is a recipe for disaster
In their testimony before the lower court, Ms. Gilbert, Mr. Aponte, Ms. Stofer, and a witness designated to testify on behalf of Chili’s each said that they had no independent recollection of their role in terminating Mr. Kean or why the decision was made.
I kid you not. Chili’s could not present a witness to take responsibility for the decision to fire Mr. Kean and explain its legitimate, non-discriminatory reasons.
As a result, the Sixth Circuit found that the only person with an independent recollection of the events relevant to his termination was Mr. Kean.
But wait. Can’t personnel records and emails fill the void and provide the reasons for an adverse action?
Yup.
Can’t the Stofer report fill that void?
Nope.
Failing to implement a timely litigation hold can be costly
Even though Mr. Kean told Ms. Stofer that he was getting a lawyer, Chili’s did not put in place a litigation hold for another four months.
That failure, coupled with Chili’s lack of an adequate records retention policy, resulted in deletion of most of Mr. Kean’s performance reviews, the employee complaints (if any) made against him, and all the emails between Ms. Gilbert, Mr. Aponte, and Ms. Stofer related to the termination.
The lower court found these failures to be grossly negligent and sufficient to justify a monetary sanction against Chili’s for destruction of evidence. But the court found that the report captured all the reasons for the termination. Thus, according to the court, Mr. Kean was not prejudiced by Chili’s negligence.
The Sixth Circuit disagreed. As the court explained, for the lower court to have properly relied on the report it had to be “authenticated.”
That meant someone needed to testify that the report was what it purported to be.
Oh boy. I’ll bet you know where this is headed. And it ain’t good for Chili’s.
Consistent with her lack of memory about the events leading to the termination, Ms. Stofer denied being the author of the report, admitted to making only a few entries, and said she had no recollection of its factual basis.
Absent proper authentication, which the Sixth Circuit found could not be provided by any of Chili’s witnesses, the district court erred in relying on the report as providing legitimate, non-discriminatory reasons for Mr. Kean’s termination.
Without the report, without a decisionmaker, and without any of the emails or other records it failed to preserve, Chili’s had little to offer regarding its non-discriminatory reasons for firing Mr. Kean.
We’ve all been there.
Who among us can say they’ve never had a witness “go south” during a case?
It happens. Albeit typically not on this scale.
Mr. Kean’s case is extreme. But provides a good lesson in how important it is to (1) ensure that a decisionmaker exists who will take ownership of the adverse action, and (2) timely preserve whatever materials the decisionmaker needs to tell that story.
If you don’t, the plaintiff will be the only one who can tell the story, and I’m certain you won’t like the way it ends.
