In Kean v. Brinker International, Inc., 140 F.4th 759 (6th Cir. June 17, 2025), the U.S. Court of Appeals for the Sixth Circuit vacated the lower court’s award of summary judgment to the defendant on plaintiff’s age discrimination claim asserted under the Age Discrimination in Employment Act (ADEA).
This decision is a good example of how a court will scrutinize vague explanations – “not a good fit” etc. – for why an employer subjects an employee to an adverse employment action.
The court summarized the facts, and framed the issue, as follows:
Plaintiff 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, Tennessee market when he was terminated and replaced by a thirty-three-year-old with no managerial experience. Defendants Brinker International, Inc.,1 Brinker International Payroll Co.,2 and Chili’s, Inc., (together “Brinker”) explain that Kean was terminated for creating a toxic “culture” and not “living the Chili’s way.” According to Brinker, “culture” at Chili’s meant treating employees well, satisfying guests, and turning a good profit—among other intangibles. Despite Brinker’s explanations, by all objective metrics, Kean’s restaurant was one of the top performers in his market. Not only was the restaurant profitable, but also it had operated for years as a training center for other managers, and Kean had consistently positive ratings as a manager from his employees.
So why did Brinker fire Kean? The answer is complicated. No one at Brinker can remember why they actually fired Kean, and Brinker destroyed all original documents related to Kean’s employment *763 and the reasons for his termination. Kean tries to fill in the gaps with his own theory. According to Kean, Brinker used “culture” as a catchall term to obfuscate their systematic efforts to remove older employees in favor of younger ones. In his estimation, he was fired because he was the oldest manager in his region and did not fit into Brinker’s business model aimed at attracting millennial guests. Based on this theory, he filed this suit under the Age Discrimination in Employment Act (“ADEA”). Ultimately, the district court credited Brinker’s explanation, granted summary judgment in Brinker’s favor, and dismissed the case.
In ruling in plaintiff’s favor, the court explained:
Kean has provided sufficient evidence to rebut Brinker’s asserted nondiscriminatory reason. The primary evidence in support of Kean’s claim is his own recollection about the circumstances of his termination. Kean was replaced with a much younger employee, and Brinker has little evidence to support its “culture” rationale. Resolution of this dispute requires evaluation of Kean’s credibility, which is appropriate for resolution by a trier of fact. Moreover, other evidence supports Kean’s rebuttal.
First, despite stating that “culture” was the reason for Kean’s termination, Brinker did not rely on any of its objective metrics for evaluating “culture.”6 In October 2018, Kean’s restaurant “was ranked as the 3rd highest performing store in [his] market.” R. 34-3 (Mallindine Decl. ¶ 7) (Page ID #188). “These metrics included employee turnover, sales, guest experience, and cost.” Id. ¶ 6 (Page ID #188). Kean’s ratings by his employees were also positive. Id. ¶¶ 8–9, 16, 23–24 (Page ID #188–89). Kean’s assistant manager at the time, Eric Bean, confirms that the restaurant “was a top performing store in its market in terms of the metrics used by Brinker” during the relevant time period. R. 34-4 (Bean Decl. ¶ 5) (Page ID #191). “[F]rom June 27 to end of December of 2018”—with Kean’s termination on November 27, 2018—“[b]ased upon all KPI indicators including turnover, sales, guest experience, and cost, [Kean’s restaurant] was the second highest performing store in the market ….” Id. ¶ 11 (Page ID #192). Bean’s declaration also supports the view that Kean had positive relationships with his employees. Id. ¶¶ 4, 13–14, 20–21 (Page ID #191–93).
Kean’s efforts at creating a positive environment at his restaurant are reflected in his May 2018 MEE survey, which was completed by forty-six employees. R. 48-12 *776 (MEE Survey at 1–2) (Page ID #1336–37). Kean apparently exceeded every objective managerial benchmark set by Chili’s for a MEE survey. Id. at 1 (Page ID #1336). In the subjective/qualitative portion, entitled “Culture Comment,” employees left mostly positive reviews of Kean (“Cared for,” “Thriving,” “positive,” “Fun,” “Fair,” “Family,” etc.)—mirroring his objective scores. Id. at 2 (Page ID #1337). This information squarely contradicts Brinker’s “culture” rationale to the extent that “culture” considers a store’s sales, employee experiences, and guest experiences. Evidence contradicting an employer’s proffered reason can satisfy a plaintiff’s burden to rebut that reason. See Alexander v. CareSource, 576 F.3d 551, 565 (6th Cir. 2009); see also Briggs v. Univ. of Cincinnati, 11 F.4th 498, 513 (6th Cir. 2021).
Second, Brinker did not appear to follow its own policy and procedures in terminating Kean.7 Although “ ‘an employer’s failure to follow self-imposed regulations or procedures is generally insufficient to support a finding of pretext[,]’ … [w]e have held that failure to uniformly apply a progressive discipline policy can be evidence of pretext, especially when the company asserts that policy as a rationale for the employee’s termination.” Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 896 (6th Cir. 2020) (quoting White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 246 (6th Cir. 2005)). Therefore, any failure on Brinker’s part to follow its progressive-discipline policy, while not enough on its own to establish pretext, can be considered as part of the constellation of evidence.
Finally, Kean has produced evidence that Brinker was cultivating a youthful “culture” at Chili’s that Kean did not fit into. Both Bean and Mallindine stated that during their time at Chili’s, “there seemed to be a trend of more senior employees leaving … and younger employees being promoted or hired into management.” R. 34-3 (Mallindine Decl. ¶ 29) (Page ID #189); R. 34-4 (Bean Decl. ¶ 46) (Page ID #195). Kean said the same thing. R. 48-1 (Kean Dep. at 33:16–34:8, 44:6–22) (Page ID #1117–18, 1127). Kean was also one of the oldest managers in the region and reported that he would receive comments about his age from other GMs like “Old Man,” “Pops,” “Grandpa,” and that his management style was “old-school.” Id. at 34:21–35:7, 37:6–11 (Page ID #1118–19, 1121). Although none of these comments were made by relevant decisionmakers, Kean understood them to mean that “the old-school methods of management would no longer work with the younger group of employees the defendants were hiring ….” Id. at 37:21–38:5 (Page ID #1121–22). Moreover, “[w]e have held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext.” Risch, 581 F.3d at 393 (citing Ercegovich, 154 F.3d at 356–57).
The court concluded that “though each independent effort to rebut Brinker’s rationale might not be enough on its own, the combination of the pieces of evidence shows that Kean has met his burden to rebut Brinker’s legitimate, nondiscriminatory reason.”