On June 17, the U.S. Court of Appeals for the Sixth Circuit issued Kean v. Brinker International, Inc., an opinion that reverses summary judgment for the employer and sends a former Chili’s general manager’s Age Discrimination in Employment Act (ADEA) case back for trial. The ruling provides a cautionary roadmap for employers that rely on “culture” or “cultural fit” as a basis for termination decisions, especially where documentation is scant or electronic records have been lost.
What the Court Decided
- The plaintiff, a 59-year-old general manager, was discharged and replaced by a 33-year-old with no managerial experience. Brinker International, Inc., Brinker International Payroll Company, and Chili’s, Inc. (together, “Chili’s”) asserted that the decision stemmed from complaints about the restaurant’s “culture” and the belief that the manager was not “living the Chili’s way,” (i.e., providing a positive work environment for employees and customer experience for guests, respectively).
- The district court had granted summary judgment for Chili’s, crediting its “culture” rationale and rejecting the employee’s evidence as insufficient to show pretext.
- On appeal, the Sixth Circuit reversed summary judgment, holding that:
- Chili’s key exhibit — a “Team Member Relations” (TMR) report summarizing internal emails regarding the plaintiff’s alleged mismanagement of the restaurant — was inadmissible because no witness could authenticate it after the underlying emails were deleted as a result of Chili’s “gross negligence.”
- Chili’s failure to preserve those emails and other personnel records constituted spoliation; the appellate court ordered the district court to reconsider sanctions beyond attorneys’ fees.
- Without the TMR report, the company lacked sufficient evidence that “culture” problems actually motivated the termination, and the employee’s evidence of strong performance metrics, age-related comments and a pattern of replacing older managers created a triable issue of pretext.
Practical Takeaways for Employers
The court’s ruling serves as a reminder that terminations resting on vague concepts such as “toxicity” or “cultural mismatch,” unsupported by contemporaneous documentation defining these concepts, are vulnerable to wrongful termination claims. To minimize such risks, employers might consider the following practices:
- Document Performance Concerns in Real Time. When culture, attitude or leadership style motivates discipline, translate those concepts into concrete behaviors (e.g., turnover spikes, survey scores, customer complaints) and preserve the underlying data. Vague labels without specifics invite skepticism.
- Preserve Electronically Stored Information (ESI) When Appropriate. The decision underscores that a litigation hold must issue when an employer reasonably anticipates litigation. Lost emails, deleted personnel files and incomplete reports can lead to exclusion of critical evidence and adverse inferences. In the event that litigation is anticipated, employers must be sure to double check document retention protocols — including automatic deletion systems — to ensure that relevant evidence is maintained and protected.
- Corroborate Complaints Before Acting. The employer relied on unverified allegations from a handful of employees. HR should independently investigate, interview witnesses and create written findings before approving termination.
- Ensure Decision-Makers Know — and Can Defend — Key Facts. In Kean, none of the managers remembered why they fired the plaintiff. At deposition, and in light of the excluded TMR report, those gaps proved fatal. Require decision-makers to memorialize the reasons for their decisions contemporaneously.
Bottom Line
The Kean opinion is a timely reminder that culture-based terminations, if not buttressed by clear, objective evidence and robust document retention practices, can generate significant litigation exposure. Employers should tighten documentation protocols, reinforce ESI preservation and train leaders to articulate performance-related reasons in concrete, nondiscriminatory terms. Doing so will not only bolster defenses to potential discrimination claims but also promote fair and consistent employment practices across the organization.
