Age discrimination; The Age Discrimination in Employment Act (ADEA); Whether defendant terminated plaintiff’s employment based on his age; “Disparate impact”; Defendant’s lack of supporting evidence; Whether defendant offered “a legitimate, non-discriminatory reason” for termination; Whether defendant’s internal report was admissible under FRE 901; Plaintiff’s motion for sanctions based on “spoilation of evidence” under FedRCivP 37(e) & (e)(1); Whether defendant was entitled to summary judgment; Whether plaintiff offered sufficient indirect evidence of discrimination to persuade a jury that age was the “but-for cause” of his termination; McDonnell Douglas Corp. v. Green

The court reversed summary judgment for defendant-Brinker International in this age-discrimination dispute, holding that plaintiff-Kean established an issue whether “age” was the but-for cause of his termination where Brinker’s internal report (TMR Report) supporting the termination was improperly admitted under Rule 901 because of questions regarding its “authenticity” and its “accuracy.” Brinker terminated Kean, a 59-year-old General Manager at a Chili’s restaurant in Tennessee, and replaced him with a 33-year-old with no managerial experience. Brinker explained that it terminated Kean “for creating a toxic ‘culture’ and not ‘living the Chili’s way.’” However, the facts indicated that the restaurant was “a top performer” and was even used for training purposes. Kean sued for age discrimination under the ADEA. Brinker based its defense primarily on an internal document known as a “TMR Report” in Brinker’s parlance. However, the nature and compilation of this document was unknown. The district court granted Kean fees and costs based on Brinker’s failure to maintain the original electronic material and its lack of supporting evidence, but found this failure was not intentional and that the award of fees and costs should cure any prejudice under Rule 37(e)(1). It granted Brinker summary judgment, ruling that it had offered a legitimate non-discriminatory reason for firing Kean—Chili’s “culture.” The court first found the TMR Report was inadmissible under the FRE because Brinker was unable to authenticate it under FRE 901. The authorship of the document was never established, and any original emails had long been destroyed. “Brinker’s lack of a document-retention policy and subsequent failure to implement a litigation hold has contributed almost exclusively to this gap in the record.” There were also reasons to question its authenticity and the accuracy of the information contained in it. The court then ordered the district court to review Kean’s motion for sanctions, which it only partially granted, and reconsider the “spoilation of evidence” argument to determine whether additional sanctions beyond excluding the TMR Report were appropriate. The court reversed summary judgment for Brinker, holding that plaintiff offered sufficient indirect evidence of discrimination to “‘persuade a reasonable juror that age was the but-for cause of [his] termination.’” It then held that because the TMR was inadmissible, the district court erred by relying on it when considering Brinker’s proffered nondiscriminatory reason for terminating Kean. Thus, Kean successfully rebutted Brinker’s explanation. The court noted Brinker’s failure to offer any “objective metrics” for evaluating the term “culture” in its work setting, and found Kean “produced evidence that Brinker was cultivating a youthful ‘culture’ at Chili’s that Kean did not fit into.”