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August 5, 2025
In a recent case, the United States Court of Appeals for the Sixth Circuit revived an age discrimination claim based, in part, on the employer’s spoliation of evidence. See Kean v. Brinker International, Inc., No. 24-5514 (6th Cir., June 17, 2025).
Factual and Procedural Background
A Brinker International restaurant in Tennessee (doing business as Chili’s Bar & Grill, and hereinafter referred to as Chili’s) terminated the employment of a 59-year-old General Manager, Jeff Kean, for creating a “toxic culture” and “not living the Chili’s way.” Kean sued, contending that Chili’s actions were a pretext for age discrimination and pointing to the fact that Chili’s replaced him with a substantially younger and less experienced person.
The district court dismissed Kean’s claims before trial. Kean appealed to the Sixth Circuit.
The Sixth Circuit Revived Kean’s Claim
On appeal, the Sixth Circuit revived Kean’s claim, highlighting Chili’s spoliation of evidence – conduct that demonstrated gross negligence and undermined Chili’s defenses to Kean’s claims.
Specifically, although (1) Chili’s terminated Kean’s employment on November 27, 2018; (2) Kean called Chili’s on November 28, 2018, to advise them that he was going to retain a lawyer; and (3) Kean filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in March 2019, Chili’s failed to preserve documents related to his employment and termination. In fact, the company failed to issue a document preservation request until April 2019 – five months after Kean’s termination and one month after the filing of his EEOC Charge.
Among other things, Chili’s failed to maintain its electronic files documenting complaints (if any) made about Kean, any of his performance reviews, and any of the emails exchanged related to Kean’s termination. In addition, during the relevant time period, Chili’s did not implement a uniform document-retention policy. Moreover, by the time Chili’s issued a document preservation notice in April 2019, all original emails related to Kean’s termination were destroyed.
Compounding the destruction of relevant evidence, not one of the management team members had any independent recollection of either their role in terminating Kean’s employment or why the decision to terminate his employment was made.
The main piece of evidence that supported Chili’s version of events was a Team Member Relations report. However, no one could adequately explain the nature or origin of the report. That is, the report could not be authenticated and, thus, was inadmissible as evidence.
In light of the above issues, the Sixth Circuit reversed the district court’s decision, in part (it affirmed the decision to the extent that Kean sought a pre-trial judgment on his claims) and remanded the case to the district court for further proceedings.
Employer Takeaways
This decision highlights the importance of proper documentation and preservation of that documentation.
Implement a document retention policy. Bringing uniformity to your organization’s document handling will help to avoid issues like those outlined in the Kean decision and may even provide you with a defense in the event that a spoliation issue occurs.
Keep good records of important decisions (such as decisions to terminate someone’s employment) with detail sufficient to refresh your recollection a few years down the road if you are called upon to defend the decision in court.
Finally, be sure to promptly alert key personnel within your organization to preserve documents relevant to those important decisions when you are put on notice of a potential claim.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
