Jeff Kean v. Brinker Int'l, Inc.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0158p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

JEFF L. KEAN,

│

Plaintiff-Appellant, │

│

v. > No. 24-5514

│

│

BRINKER INTERNATIONAL, INC. and BRINKER │

INTERNATIONAL PAYROLL CO., L.P., dba Chili’s Grill │

& Bar; CHILI’S, INC., │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:22-cv-00885—Aleta Arthur Trauger, District Judge.

Argued: April 30, 2025

Decided and Filed: June 17, 2025

Before: SUHRHEINRICH, MOORE, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Emma Freeman, APOLLO LAW, LLC, Brooklyn, New York, for Appellant.

Jennifer S. Rusie, JACKSON LEWIS P.C., Nashville, Tennessee, for Appellee. ON BRIEF:

Emma Freeman, APOLLO LAW, LLC, Brooklyn, New York, Donna J. Mikel, MIKEL &

HAMILL PLLC, Chattanooga, Tennessee, Adam W. Hansen, APOLLO LAW LLC,

Minneapolis, Minnesota, for Appellant.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. 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

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 2

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 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.

For the reasons that follow we VACATE AND REVERSE IN PART and AFFIRM IN

PART the district court’s decision, and REMAND for proceedings consistent with this decision.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

1. Events Leading to Kean’s Termination

In May 2011, at age fifty-one, Kean was hired to work as General Manager (“GM”) at a

Chili’s restaurant in Nashville, Tennessee. Kean v. Brinker Int’l, Inc., No. 3:22-cv-00885, 2024

1

d/b/a Chili’s Grill & Bar.

2

d/b/a Chili’s Grill & Bar.

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 3

WL 1815346, at *15 (M.D. Tenn. Apr. 25, 2024). As GM, Kean managed employees, sales,

turnover, guest experience, and the day-to-day operations of the restaurant. Id. GMs like Kean

were directly managed by a “Director of Operations” (“DO”). Id. at *16. Among other tasks,

DOs conducted annual performance reviews of GMs, initiated employment decisions such as

terminations, and maintained personnel files. See id. at *2, *13.

In 2015 or 2016, Kean’s then-DO Allen Pitts, transferred Kean to a different restaurant in

Murfreesboro, Tennessee. Id. at *16. The Murfreesboro Chili’s experienced high turnover and

other problems with sales and guest experiences. Id. Pitts transferred Kean to the Murfreesboro

Chili’s because “they wanted [Kean] to go fix it.” R. 48-1 (Kean Dep. at 17:5–19) (Page ID

#1106). During the relevant time period, Eric Bean worked as one of Kean’s three assistant

managers, and Bean essentially operated as Kean’s second in command. Kean, 2024 WL

1815346, at *16.

Around late 2017 or early 2018, Kean’s then-DO, Tom Mallindine, made Kean’s

restaurant a training location for Managers in Development (“MIDs”). Id. This was a sign that

Kean had turned around the troubled Chili’s location, because only high performing restaurants

could be selected as a training location. Id. Under Mallindine’s supervision, Kean earned

consistently positive reviews and received a performance-based raise each year. Id.

Kean was one of the oldest managers in the region and reported that he would receive

comments about his age from other GMs, comments like “Old Man,” “Pops,” “Grandpa,” and

that his management style was “old-school.” R. 48-1 (Kean Dep. at 34:21–35:7, 37:6–11) (Page

ID #1118–19, 1121). Although none of these comments were expressly derogatory, 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 37:21–38:7 (Page

ID #1121–22).3 During this same period, Kean, Bean, and Mallindine noted a trend of Brinker

terminating older employees and replacing them with younger ones. R. 34-3 (Mallindine Decl.

3

There is also the matter of the Chili’s employee handbook that makes two passing references to

millennials, which Kean argues fits into his narrative that Brinker sought to replace older employees. R. 34-5

(Chilihead Handbook at 1–2) (Page ID #202–03).

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 4

¶ 29) (Page ID #189); R. 34-4 (Bean Decl. ¶ 46) (Page ID #195); R. 48-1 (Kean Dep. at 33:16–

34:8, 44:6–22) (Page ID #1117–18, 1127).

Around the time of Mallindine’s departure in September 2018, Rich Kissel was the Vice

President of Operations (“VPO”) of the region that included the Nashville market. Kean, 2024

WL 1815346, at *16. As VPO, Kissel oversaw all DOs within his region. Id. Kissel promoted

then-GM Marsha Gilbert to replace Mallindine as the DO overseeing the Nashville market,

including Kean’s restaurant. Id. Early in her tenure—around mid-October 2018—one of

Gilbert’s friends, Melissa Stonestreet, was assigned to Kean’s restaurant as a MID. Id.

According to Kean, Stonestreet complained about Kean’s management to Gilbert. R. 48-1 (Kean

Dep. at 58:9–25) (Page ID #1139). This marks the beginning of the events leading shortly to

Kean’s termination.

In response to the Stonestreet complaint, Gilbert told Kean that “she was pulling the

training function from [his] store due to complaints she had received” from Stonestreet. Id. at

58:16–21 (Page ID #1139). “She said she would look at recertifying the restaurant later.” Id. at

58:24–25 (Page ID #1139). When Kean received the call, he was at his daughter’s “school in a

gymnasium full of adults and kids[.]” Id. at 59:10–12 (Page ID #1140). He called Gilbert back

shortly thereafter and explained that he thought it was “unprofessional” for her to call him on his

day off and that it was “disrespectful to [his] staff and [him]self [who] had worked so hard to

train the trainees,” especially “[w]ithout her ever being in the restaurant . . . .” Id. at 59:16–25

(Page ID #1140). Following this phone call, no one at Brinker followed up to investigate the

complaint, and Gilbert never reported the complaint to Brinker’s HR (known as the PeopleWorks

Department). Kean, 2024 WL 1815346, at *16. Both Kean and Bean remember Stonestreet as

having problems with taking direction from management. R. 48-1 (Kean Dep. 55:16–56:25)

(Page ID #1137–38); R. 34-4 (Bean Decl. ¶¶ 22–29) (Page ID #193–94).

On November 17, 2018, Gilbert reported to Kristin Stofer, a Team Member Relations

(“TMR”) Specialist, that Gilbert had received a complaint from one of Kean’s employees, named

Rondale Brown, regarding Kean. Kean, 2024 WL 1815346, at *17. Stofer, as a TMR Specialist,

worked as part of Brinker’s HR department dealing with employee complaints. See id. at *2, 6.

Stofer’s investigation of Brown’s complaint revealed that Brown was a server at Kean’s

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 5

restaurant, and Brown believed Kean had wrongfully terminated Brown. Id. at *17. Brown

complained about Kean’s management style, that the restaurant was “very tense and stressful,”

that he was treated poorly, and that another employee had told Brown that “the GM was being

racist towards [Brown].’” R. 34-10 (TMR Report at 8) (Page ID #283). In her investigation

report, Stofer explained that although Kean had received complaints in the past for hostile work

environment, no complaints were substantiated, and that Kean had one document on file where

he was coached on an issue in September 2018. Kean, 2024 WL 1815346, at *17.

Based on Stofer’s response, Gilbert and Hector Aponte—the HR person assigned to

Kean’s region—agreed after a phone call to terminate Kean. Id. at *17 (citing R. 34-10 (TMR

Report at 7–8) (Page ID #282–83)). Gilbert referenced “guest and team member complaints, as

well as, the MID training concerns,” as justifying the termination. R. 34-10 (TMR Report at 7)

(Page ID #282). Gilbert planned to replace Kean with Bean. Id. Bean was then thirty-three

years old. Kean, 2024 WL 1815346, at *20.

Later that same day, Stofer expressed concern that there was insufficient documentation

of efforts to approach Kean about the complaints and that Brinker had not yet done “everything

[they] could to set him up for success prior to moving to termination.” R. 34-10 (TMR Report at

7) (Page ID #282). No one responded to Stofer’s concern. Two days later, on November 21,

2018, Stofer followed up and asked if Gilbert and Aponte had come to a resolution on Kean and

Brown. Id. Aponte responded that “[w]e’ve aligned to term Jeff Kean,” but did not comment on

Kean’s decision to terminate Brown. Id. at 6–7 (Page ID #281–82).

Aponte confirmed his and Gilbert’s decision without learning additional information

about the Brown complaint, visiting Kean’s restaurant, or discussing Kean’s management with

his employees. Id. Five days later, on November 26, 2018, Stofer emailed Aponte, Gilbert, and

Kissel to inform them of her investigation into Brown’s complaint. Id. at 6 (Page ID #281).

Kean told Stofer that Brown had been coached by Kean previously, that Brown would repeatedly

leave for a smoke break without permission, and that “[Brown’s] scores were not great either but

he would neglect his tables and wouldn’t take feedback at all.” Id. Stofer concluded that

Brown’s termination could be upheld “based on insubordination/negative confrontation with

manager and performance concerns.” Id.

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 6

On November 27, 2018, Gilbert visited Kean’s Chili’s restaurant and terminated Kean

because management wanted to change the culture at his restaurant. This was the first time

Gilbert visited Kean’s restaurant. Kean, 2024 WL 1815346, at *18. Kean told Gilbert that she

could not have known the culture at his restaurant because she had never visited or met with his

employees. Id. (citing R. 48-1 (Kean Dep. at 61:10–15) (Page ID #1142)). “As Kean was

leaving, he told Gilbert, ‘I’m not sure who promoted you or why you’ve been promoted, but I

can tell you that you’re not going to last very long when you’re making decisions like this.’” Id.

(quoting R. 48-1 (Kean Dep. at 63:9–15) (Page ID #1144)). By this comment, Kean meant that

“[s]he had just fired her best manager doing all her management training in her market.” R. 48-1

(Kean Dep. at 63:9–15) (Page ID #1144).

When Kean was terminated, his Key Performance Indicator (“KPI”) Reports4 and scores

on employee engagement surveys, called MEE surveys (“My Employment Engagement”), were

both excellent.5 Kean, 2024 WL 1815346, at *18. It is undisputed that Brinker’s

decisionmakers did not rely on any of these reports and surveys when terminating Kean. Neither

Gilbert nor Kissel knew Kean’s exact age when they made their termination decision. Id.

2. Events Following Kean’s Termination

Following his termination, Kean was replaced as GM by Bean, who was thirty-three

years old. Id. at *20. The day after Kean’s termination, on November 28, 2018, Kean called

Stofer to complain about wrongful termination and age discrimination. Id. at *19. In what

appears to be either an actual email or draft-email preserved as a note, dated November 28, 2018,

Stofer again expressed her concerns about the nature of Kean’s termination. R. 34-10 (TMR

Report at 5–6) (Page ID #280–81). Kean had apparently told Stofer that he was fired based on

“culture” but that he never received any complaints from his team members or assistant

managers. Id. He also expressed that, prior to his termination, no supervisor expressed any

concerns about the workplace environment at his restaurant. Id. In light of Kean’s complaints,

4

KPI Reports measure the financial success of a Chili’s restaurant, by measuring, in part, “turnover, sales,

guest experience, and cost.” R. 34-4 (Bean Decl. ¶ 11) (Page ID #192).

5

“Once or twice a year, Brinker would ask store employees to participate in the MEE survey. This was a

survey in which employees would comment on and rate their experience working in the restaurant.” R. 34-4 (Bean

Decl. ¶ 13) (Page ID #192).

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 7

Stofer expressed once more her view that Kean’s documentary record did not necessarily support

termination. Id.

As part of a note Stofer drafted summarizing a conversation between her and Aponte,

Aponte explained that the decision was based on Kean “creating a very toxic environment so

much so that they had to pull training from the restaurant.” Id. at 5 (Page ID #280). Because the

issues were multifaceted, Stofer noted that Aponte explained that no additional coaching could

fix the “culture.” Id. Other individuals—who were contacted after the decision to terminate

Kean was made—confirmed that there had been some number of previous team-member and

guest complaints. Id. at 4–5 (Page ID #279–80). It is undisputed that there is no documentation

supporting the existence of any of these previous complaints. See Kean, 2024 WL 1815346, at

*9–14 (discussing spoliation).

Ultimately, as described in a note dated November 30, 2018, Stofer communicated to

Kean that “with the background and current guest concerns, [team member] concerns and

concerns with not living the Chili’s way and living our culture the decision was made to separate

employment.” R. 34-10 (TMR Report at 4) (Page ID #279). Kean responded that Stofer did not

clarify for him the reasons for his discharge given the lack of documentation, and that he would

“get to the bottom of this with his attorney.” Id.

3. EEOC Charge and Spoliation of Evidence

Kean filed a charge of age discrimination with the EEOC in March 2019. The EEOC

issued a Notice of Determination in June 2022. Kean, 2024 WL 1815346, at *21. The EEOC

determined that Kean “had no record of disciplinary actions or warnings in his personnel file.”

R. 34-13 (EEOC Determination) (Page ID #319). This is because Brinker failed to maintain its

electronic files documenting complaints (if any) made about Kean, any of his performance

reviews, and any of the emails exchanged between Stofer, Aponte, Gilbert, and Kissel related to

Kean’s termination. Kean, 2024 WL 1815346, at *9–14. During the relevant time period,

Brinker did not implement a uniform document-retention policy. Id. at *3. Although Brinker

issued a litigation hold to preserve important emails related to Kean’s termination, the hold was

not issued until April 2019, and all original emails were destroyed. Id. at *7.

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 8

Compounding the destruction of relevant evidence, not one of the involved management

team—Stofer, Aponte, Gilbert, and Kissel—has any independent recollection of either their role

in terminating Kean or why the decision to terminate was made. R. 45-3 (Stofer Decl. ¶ 4) (Page

ID #1041); R. 34-6 (Kissel Dep. at 133:2–23, 134:10–22, 135:19–24, 154:1–22, 155:15–156:4)

(Page ID #219–21, 225–27); R. 34-8 (Gilbert Dep. at 108:1–18) (Page ID #266); R. 34-18

(Aponte Decl. ¶¶ 4–6) (Page ID #398). The only individual with any independent recollection of

the relevant events is Kean himself.

The main piece of evidence that supports Brinker’s version of events is the TMR Report.

R. 34-10 (TMR Report at 3–11) (Page ID #278–86). But, as explained later in this opinion, no

one can adequately explain the nature and origin of this document. The document appears to

have been created by Stofer after Kean submitted his complaint to Brinker’s HR. R. 34-10

(TMR Report at 9) (Page ID #284). The TMR Report is apparently a compilation of personal

notes drafted by Stofer and copies of emails circulated among Stofer, Aponte, Gilbert, and

Kissel. Id. at 3–11 (Page ID #278–86). The document was not turned over to the EEOC as part

of its investigation. Kean, 2024 WL 1815346, at *2 & n.4.

4. Living the Chili’s Way

As a final point of preface, it is worth briefly discussing what “culture” means at Chili’s.

As explained by the district court, “culture” covers such disparate topics as how to handle team

members, metrics at the restaurant, employee turnover, employee attitude, and guest experiences.

Kean, 2024 WL 1815346, at *15–16. According to Brinker, the TMR Report provides sufficient

evidence demonstrating that Kean was not “living the Chili’s way,” by creating a toxic culture at

his restaurant. R. 34-10 (TMR Report at 4–5) (Page ID #279–80).

The only other evidence in the record describing the “culture” at Kean’s restaurant prior

to his termination paints a different picture. In October 2018, according to Mallindine, Kean’s

restaurant “was ranked as the 3rd highest performing store in [his] market.” See 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). Bean confirms that Kean’s restaurant “was a

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 9

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

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 positive culture at his restaurant is reflected in his May 2018 MEE Survey, which

was completed by forty-six employees. R. 48-12 (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.). Id. at 2 (Page ID #1337).

B. District Court Proceedings

Kean filed suit in November 2022, alleging age discrimination in violation of the ADEA.

Kean, 2024 WL 1815346, at *21. Prior to the close of discovery, Kean filed a motion for

sanctions and/or to exclude the TMR Report based on Brinker’s spoliation of evidence. R. 34

(Mem. in Supp. Mot. for Sanctions at 1) (Page ID #134). Following the close of discovery, the

parties filed cross-motions for summary judgment. R. 40 (Kean Mem. in Supp. of Mot. for

Summ. J.) (Page ID #486); R. 43 (Brinker Mem. in Supp. of Mot. for Summ. J.) (Page ID #586).

The district court resolved all three motions on April 25, 2024. See Kean, 2024 WL 1815346, at

*1.

The district court granted in part and denied in part Kean’s motion for sanctions. Id. The

district court found that Brinker was on notice that Kean intended to pursue litigation as of

November 28, 2018, when he called Stofer and informed her that he was getting a lawyer. Id. at

*8–14. Brinker failed to maintain all original electronic material related to Kean’s

employment—including any alleged complaints made against Kean and all of his performance

reviews. Id. This is because Brinker failed to implement a consistent document-retention policy

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 10

and failed to implement a litigation hold. Id. The district court granted Kean’s motion to the

extent he sought fees and costs, but denied it to the extent he sought exclusion of the TMR

Report. Id. According to the district court, Brinker’s destruction of evidence, although grossly

negligent, was not intentional. Id. The district court agreed with Brinker that the TMR Report

was authentic and accurate, and that there was no indication that there were additional emails

that would have supported Kean’s position. Id. Thus, Kean’s prejudice from the destruction of

evidence was minimal, and an order for fees and costs was sufficient to cure that prejudice under

Federal Rule of Civil Procedure 37(e)(1).

The district court then granted Brinker’s motion for summary judgment and denied

Kean’s motion for summary judgment. Applying the McDonnell Douglas framework, the

district court found that, although Kean could establish a prima-facie case of age discrimination,

he could not rebut Brinker’s legitimate, nondiscriminatory reason: Chili’s “culture.” Id. at *21–

27. As for the prima-facie case, Kean met his burden because he was fifty-nine years old, he was

replaced by a substantially younger Bean, and the decisionmakers had interacted with both Kean

and Bean enough to understand that they were replacing Kean “with a substantially younger

employee.” Id. at *22–23. As for Brinker’s proffered reason for terminating Kean, the district

court credited that “culture” is important to Chili’s and that the TMR Report provided sufficient

evidence that Kean was creating a toxic culture at his restaurant. Id. at *23.

The bulk of the district court’s analysis of Kean’s ADEA claim concerned pretext. Id. at

*23–26. In sum, the district court found that although “Kean’s termination was unfair and

poorly documented,” Kean had not sufficiently rebutted Brinker’s proffered rationale. Id. at *26.

“More to the point, there [was] absolutely no evidence suggesting that the termination was

because of Kean’s age.” Id. The district court rejected Kean’s argument that non-decisionmaker

employees called him old, observations that Brinker was systematically replacing older

employees with younger ones, and that Brinker sought to reach a younger market through hiring

and employing younger employees was probative. Id. In short: “nothing in the record

suggest[ed] that the decision to terminate [Kean] was based on anything other than a perception

that he was not fostering the desired culture.” Id. at *25.

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For these same reasons, the district court denied Kean’s motion for summary judgment in

his favor. Id. at *27.

II. DISCUSSION

This appeal presents three issues, two of which are primary because their resolution

dictates the result of the final issue. First, Kean challenges the authenticity and accuracy of the

TMR Report. Second, Kean argues that the district court abused its discretion by refusing to

order more severe sanctions for Brinker’s spoliation, including exclusion of the TMR Report.

Finally, Kean urges the panel to reverse the district court’s grant of summary judgment.

For the reasons that follow, we hold that the TMR Report is inadmissible, vacate the

district court’s order on sanctions, and reverse and remand the district court’s order on Brinker’s

summary judgment motion. Finally, we affirm the district court’s decision denying Kean’s

motion for summary judgment.

A. Evidentiary Issues Posed by the TMR Report

We hold that Kean did not forfeit his evidentiary argument and that he has established

that the TMR Report is inadmissible under Federal Rule of Evidence 901.

1. Forfeiture

The first issue is whether Kean’s arguments on appeal concerning the Federal Rules of

Evidence were adequately preserved in the district court. “The Sixth Circuit has repeatedly held

that ‘an argument not raised before the district court is waived on appeal.’” Kitchen v. Whitmer,

106 F.4th 525, 536 (6th Cir. 2024) (quoting Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552

(6th Cir. 2008)).

As Kean points out, he made an evidentiary objection to the TMR Report in passing in

his motion for sanctions. Specifically, in a footnote included in his memorandum, Kean argued

that there were “independent grounds” outside of his request for sanctions, “under which this

[TMR Report] is inadmissible.” R. 34 (Mem. in Supp. Mot. for Sanctions at 7 & n.33) (Page ID

#140). “[N]o party can testify as to [the TMR Report’s] accuracy,” he stated. Id. at 7 n.33. No

party was familiar with the report, Brinker’s Rule 30(b)(6) deponent (Kissel) had never seen a

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 12

document like the TMR Report, and Kissel’s “testimony makes clear that Defendants cannot

authenticate it.” Id. Kean then reiterated these arguments in his opposition to Brinker’s motion

for summary judgment. R. 48 (Kean Opp. to Mot. for Summ. J. at 8 & n.79) (Page ID #1087).

Brinker responded to this argument by producing a declaration from Senior Manager TMR

Kristen Abraira to attest to the authenticity and accuracy of the TMR Report. R. 36 (Opp. to

Mot. for Sanctions at 6–7) (Page ID #422–23); see also R. 38 (Abraira Decl. ¶¶ 1, 4–5, 15) (Page

ID #467–69). Following briefing, the district court addressed these arguments as part of its

decision on Kean’s motion for sanctions. Kean, 2024 WL 1815346, at *2, *6–7, *10–11.

Forfeiture is not appropriate in these circumstances. The purpose of the forfeiture rule is

“to correct errors raised and addressed below, not to entertain new claims raised for the first time

on appeal.” Greco v. Livingston County, 774 F.3d 1061, 1064 (6th Cir. 2014). Issue-

preservation rules serve important purposes. The rules “ease ‘appellate review by having the

district court first consider the issue.’” Kitchen, 106 F.4th at 536 (quoting Scottsdale, 513 F.3d

at 552). “The rules also ensure ‘fairness to litigants by preventing surprise issues from appearing

on appeal.’” Id. at 537 (quoting Scottsdale, 513 F.3d at 552). Applying these rationales, Kean’s

arguments before the district court satisfy “the prudential concerns underlying our forfeiture and

waiver rules.” Id. at 536.

Kean objected to the TMR Report early in the litigation, preserved the argument in a

motion, and prompted Brinker to respond to the objections, and the district court ultimately

resolved the dispute. Although Kean has altered the form of his evidentiary objection—by

giving it greater clarity through the Federal Rules of Evidence—the substance of his objection

has remained the same: the TMR Report cannot be authenticated and is inaccurate. See Patton

v. Fitzhugh, 131 F.4th 383, 393 (6th Cir. 2025) (“An argument is not forfeited on appeal because

a . . . strain of the argument was not raised below, as long as the issue itself was properly raised.”

(alteration in original) (quoting Mills v. Barnard, 869 F.3d 473, 483 (6th Cir. 2017)).

Kean first challenged the authenticity and accuracy of the TMR Report during his

deposition of Kissel. R. 34-11 (Rule 30(b)(6) Dep. at 75:8–79:17, 81:4–82:4, 116:1–14) (Page

ID #297–304). Kean then incorporated these arguments in his motion for sanctions. R. 34

(Mem. in Supp. of Mot. for Sanctions at 7 & n.33) (Page ID #140). Not only did Brinker

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 13

respond to the substance of these objections in its opposition to Kean’s motion for sanctions, R.

36 (Opp. to Mot. for Sanctions at 6–7) (Page ID #422–23), but also Brinker sought additional

evidentiary support, R. 38 (Abraira Decl.) (Page #467). In this context, it is hard to argue that

Brinker was not on notice that Kean had problems with the authenticity and accuracy of the

TMR Report. To the extent the court’s forfeiture rules address ease of appellate review by

having the district court take the first crack at resolving a dispute, the district court did so here.

Kean, 2024 WL 1815346, at *2, *6–7, *10–11.

2. Authentication

We turn now to the substance of Kean’s evidentiary objection. We agree with Kean that

the TMR Report is inadmissible under the Federal Rules of Evidence because Brinker cannot

authenticate the TMR Report under Federal Rule of Evidence 901.

“Under Rule 901 of the Federal Rules of Evidence, the authentication of evidence is ‘a

condition precedent to admissibility.’” United States v. Hall, 20 F.4th 1085, 1104 (6th Cir.

2022) (quoting United States v. Fults, 639 F. App’x 366, 373 (6th Cir. 2016)). “To satisfy [this

requirement], the proponent must produce evidence sufficient to support a finding that the item is

what the proponent claims it is.” United States v. Farrad, 895 F.3d 859, 876 (6th Cir. 2018)

(alteration in original) (quoting Fed. R. Evid. 901(a)).

Brinker claims that Stofer authored the TMR Report. See Kean Br. at 40; see also

Brinker Br. at 35–36; R. 38 (Abraira Decl. ¶¶ 7–8). Unfortunately, Stofer testified that she has

“no independent recollection of Jeff Kean’s employment or termination or [her] involvement in

it.” R. 45-3 (Stofer Decl. ¶ 4) (Page ID #1041). As for the TMR Report that she apparently

authored, she has “no independent recollection of the subject matters or items being discussed in

it.” Id. ¶¶ 5–6 (Page ID #1041). Stofer effectively disclaims authorship of the document, only

going so far as to “recognize” that she left “comments” on at least two pages, while stating that

she had “no recollection of the factual basis underlying [her] comments.” Id. ¶ 6 (Page ID

#1041). This is insufficient evidence to support a finding that the TMR Report is what Brinker

claims it to be. Stofer has no independent recollection of authoring the document, nor does she

have any independent recollection of the facts underlying the document.

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 14

There is no real debate that Stofer cannot authenticate a document she has no recollection

of authoring. The parties primarily dispute whether Abraira can authenticate the TMR Report.

See Brinker Br. at 35–36; Reply at 10–12. Abraira attests that “[t]he TMR Report contains an

exact reproduction of the substance of the emails regarding Plaintiff’s termination,” that she

“ha[s] personal knowledge of the facts contained” in her declaration, and that the TMR Report

“accurately captures all documentation . . . .” R. 38 (Abraira Decl. ¶¶ 1, 4–5, 15) (Page ID

#467–69). It is unclear to us, however, how Brinker can use Abraira’s declaration to establish

that she is “someone with knowledge of the evidence offered” for purposes of authenticating the

TMR Report. United States v. Dunnican, 961 F.3d 859, 872 (6th Cir. 2020) (quoting Farrad,

895 F.3d at 876).

Abraira did not author the document, she did not witness its creation, and she has not

stated that she discussed its creation with others. On authorship, Abraira has not stated that she

authored the document. Nor has Abraira stated that she witnessed the creation of the TMR

Report. See R. 38 (Abraira Decl. ¶ 8) (Page ID #468). Nor has Abraira attested that she spoke

with Stofer about the TMR Report. Nor has Stofer stated in her declaration that she spoke with

Abraira about the document’s creation. R. 45-3 (Stofer Decl. ¶¶ 4–5) (Page ID #1041). There is

no evidence from which we could even infer that Abraira witnessed the document’s creation or

discussed it with Stofer—for instance, if Abraira stated that her years of employment overlapped

with Stofer. Thus, Brinker cannot establish that Abraira’s declaration can satisfy any of its

proffered bases for authentication.

As Kean points out, it is hard to believe that Abraira could have personal knowledge

about the facts contained within the TMR Report. Kean Br. at 41. The original emails were

destroyed years ago. Nor could she authenticate the TMR Report—as we have explained above.

Not to mention that Brinker’s Rule 30(b)(6) witness could not explain the origin of the TMR

Report. R. 34-11 (Rule 30(b)(6) Dep. at 75:8–79:17, 81:4–82:4, 116:1–14) (Page ID #297–304).

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 are also reasons to be concerned about the accuracy of the information contained

within the TMR Report.

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 15

First, it appears from the face of the TMR Report that the information is incomplete. For

example, one message states without attribution: “Thank you KS!” R. 34-10 (TMR Report at 6)

(Page ID #281). There is no indication about who wrote this message or when it was sent. Other

portions of the TMR Report look like notes. See id. at 5 (Page ID #280). It is not always clear

which portions of the TMR Report are notes, draft emails, or exchanged emails. It is troubling

that the document itself raises concerns about its authenticity and accuracy. Cf. Moyer v. Gov’t

Emps. Ins. Co., 114 F.4th 563, 568–70 (6th Cir. 2024) (reversing a district court decision

dismissing a complaint because the district court improperly relied on documents with

authentication issues like multiple redlines, handwritten additions, missing pages, incorrect page

numbers, displayed metadata, and incomplete dates).

Second, also troubling is the possibility that emails were exchanged between relevant

parties that were not included in the TMR Report. See Kean, 2024 WL 1815346, at *11. No one

can accurately state that the TMR Report contains all of the emails related to Kean’s termination.

Brinker destroyed all original documents. Perhaps these emails would have supported Brinker’s

position that Kean had “culture” problems. Perhaps these emails would have supported Kean’s

argument that Brinker fired him because of his age. At this point, no one could know with any

certainty.

Accordingly, we hold that the TMR Report is inadmissible because it cannot be

authenticated under Rule 901.

B. Motion for Sanctions

We turn now to the district court’s resolution of Kean’s spoliation motion. We vacate the

district court’s order and instruct it to consider whether additional sanctions beyond exclusion of

the TMR Report are appropriate.

Brinker does not dispute that the district court correctly found that it spoliated evidence.

Brinker Br. at 55–57. The dispute is only whether the district court’s award limited to a remedy

consisting solely of fees and costs in addressing spoliation was an abuse of discretion. “We

review for abuse of discretion the district court’s decision to impose sanctions for evidence

spoliation.” Beaven v. U.S. Dep’t of Just., 622 F.3d 540, 553 (6th Cir. 2010). Federal Rule of

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 16

Civil Procedure 37(e) governs the spoliation of electronically stored information. Kean asks that

the panel hold that the district court’s sanction of fees and costs damages was inappropriate to

the extent it did not order more severe sanctions, and to “remand so the district court can

determine an appropriate sanction beyond fees and costs.” Kean Br. at 60. In light of our

holding on the admissibility of the TMR Report, we grant Kean’s request.

A district court has two options for imposing sanctions pursuant to Rule 37(e). Under

Rule 37(e)(1), “upon finding prejudice to another party from loss of the information, [the district

court] may order measures no greater than necessary to cure the prejudice.” Or, under Rule

37(e)(2), “only upon finding that the party acted with the intent to deprive another party of the

information’s use in the litigation,” the district court may “presume that the lost information was

unfavorable,” “instruct the jury that it may or must presume the information was unfavorable,” or

“dismiss the action or enter a default judgment.”

We start with Rule 37(e)(2)’s more limited set of remedies. The district court found that

Brinker was “apparently grossly negligent” in failing to preserve the relevant emails and other

personnel documents from the relevant time period. Kean, 2024 WL 1815346, at *14. Given

that Brinker failed to preserve these documents, did not maintain a records-retention policy at the

time, and did not institute the litigation hold until April 2019, the district court’s finding of gross

negligence—short of intentional destruction—was not an abuse of discretion. Because Brinker’s

conduct was only grossly negligent—and not intentional—the district court did not abuse its

discretion in declining to enter sanctions pursuant to Rule 37(e)(2). See Applebaum v. Target

Corp., 831 F.3d 740, 745 (6th Cir. 2016).

Now we turn to Rule 37(e)(1). Kean, 2024 WL 1815346, at *11–12. In ordering

monetary sanctions, the district considered that “the TMR Report in this case appears to capture

the substance of the discussion that led to the plaintiff’s termination.” Id. at *11. For the reasons

already explained, the TMR Report does not capture the substance of the discussion, and the

district court abused its discretion in relying on the report. As a consequence, we vacate its

order, and instruct the district court to consider on remand whether additional sanctions beyond

fees and costs are appropriate in light of our evidentiary ruling.

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 17

C. Brinker’s Motion for Summary Judgment

For the reasons that follow, we reverse the district court’s order granting Brinker’s

motion for summary judgment. Kean has offered sufficient evidence of age discrimination to

rebut Brinker’s proffered nondiscriminatory reason for terminating Kean: Chili’s “culture.”

“We review de novo a grant of summary judgment, construing the evidence ‘in the light

most favorable to the nonmoving party . . . .’” Davis v. Sig Sauer, Inc., 126 F.4th 1213, 1230

(6th Cir. 2025) (alteration in original) (quoting Helphenstine v. Lewis County, 60 F.4th 305, 314

(6th Cir. 2023)). “A grant of summary judgment is appropriate when ‘there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id.

(quoting Fed. R. Civ. P. 56(a)). “A ‘genuine dispute’ exists if the nonmoving party presents

‘sufficient evidence from which a jury could reasonably find’ in its favor.” Id. (quoting

Troutman v. Louisville Metro. Dep’t of Corr., 979 F.3d 472, 481 (6th Cir. 2020)). “The same

standard applies when the parties have filed cross-motions for summary judgment—each motion

is evaluated by reading the evidence and resolving any doubts in favor of the nonmovant.”

Shazor v. Pro. Transit Mgmt., Ltd., 744 F.3d 948, 955 (6th Cir. 2014).

“The ADEA prohibits employers from discriminating ‘against any individual with respect

to his compensation, terms, conditions, or privileges of employment, because of such individual's

age.’” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998) (quoting

29 U.S.C. § 623(a)(1)); accord Willard v. Huntington Ford, Inc., 952 F.3d 795, 806 (6th Cir.

2020). “To succeed on a disparate-treatment claim under the ADEA, a plaintiff must show, by a

preponderance of the evidence, that age was the ‘but-for’ cause of an adverse employment

decision.” McNeal v. City of Blue Ash, 117 F.4th 887, 894 (6th Cir. 2024) (citing Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 176–78 (2009)). To defeat Brinker’s motion for summary

judgment, Kean “must show a genuine dispute of material fact that, if resolved in [his] favor,

could persuade a reasonable juror that age was the but-for cause of [his] termination.” Pelcha v.

MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021).

“A plaintiff may present either direct or indirect evidence to prove an ADEA violation.”

Willard, 952 F.3d at 806. “‘Direct evidence is evidence that proves the existence of a fact

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 18

without requiring any inferences’ to be drawn.” Pelcha, 988 F.3d at 324 (quoting Rowan v.

Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004)). “Indirect or

circumstantial evidence ‘allow[s] a factfinder to draw a reasonable inference that discrimination

occurred.’” Willard, 952 F.3d at 807 (alteration in original) (quoting Geiger v. Tower Auto., 579

F.3d 614, 620 (6th Cir. 2009)). Kean offers indirect evidence of age discrimination. “ADEA

claims relying on indirect evidence of age discrimination are analyzed under the McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework.” Willard, 952 F.3d at

807.

Under the McDonnell Douglas framework, “[f]irst, the plaintiff must produce ‘evidence

from which a reasonable jury could conclude that he or she established a prima facie case of

discrimination’ before the burden shifts to the employer to offer a legitimate, non-discriminatory

reason for the adverse employment action.” Id. at 807 (quoting Blair v. Henry Filters, Inc., 505

F.3d 517, 524 (6th Cir. 2007)). “Then, the plaintiff must rebut the proffered reason by producing

‘evidence from a which a reasonable jury could conclude that the proffered reason is actually a

pretext for unlawful discrimination.’” Id. (quoting Blair, 505 F.3d at 524).

“We have explained that ‘[o]n a motion for summary judgment, a district court considers

whether there is sufficient evidence to create a genuine dispute at each stage of the McDonnell

Douglas inquiry.’” Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 390–91 (6th Cir. 2009)

(alteration in original) (quoting Blair, 505 F.3d at 524).

1. Prima-Facie Case

For the same reasons as the district court, we hold that Kean has established a prima-facie

case of age discrimination.

“A plaintiff establishes his prima facie case by showing that (1) he is a member of a

protected group, (2) he was qualified for the position in question, (3) his employer took an

adverse employment action against him, and (4) there are ‘circumstances that support an

inference of discrimination.’” Willard, 952 F.3d at 808 (quoting Blizzard v. Marion Tech. Coll.,

698 F.3d 275, 283 (6th Cir. 2012)). “The plaintiff’s burden to establish a prima facie case is

light, one ‘easily met’ and ‘not onerous.’” Id. (quoting Provenzano v. LCI Holdings, Inc., 663

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 19

F.3d 806, 813 (6th Cir. 2011)). “The sole function of the prima facie stage of the burden-shifting

framework is ‘to raise a rebuttable presumption of discrimination by eliminat[ing] the most

common nondiscriminatory reasons for the [employer’s treatment of the plaintiff],’ such as the

plaintiff is unqualified for the position or not a member of the protected group.” Id. (alterations

in original) (quoting Cline v. Cath. Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000)).

We agree with the district court that “the record is clear that Kean was over age 40 when

he was terminated, that he was well qualified for his position, and that he was replaced by Bean,

who was substantially younger.” Kean, 2024 WL 1815346, at *22. “[T]he decisionmakers had

met and interacted with [Kean] prior to the termination, putting them in a position to know his

approximate age, and . . . they replaced him with a substantially younger employee.” Id. at *23.

“[A]s a matter of common sense, advanced middle age, like race and gender, is typically a rather

obvious condition. Likewise, one meeting with Bean, then in his early 30s, likely would have

been sufficient to permit Gilbert to verify that he was significantly younger than the plaintiff.”

Id. at *22 n.26.

Brinker’s reliance on Woodman v. WWOR-TV, Inc. does not persuade us otherwise.

Brinker Br. at 25 (citing 411 F.3d 69, 90 (2d Cir. 2005)). The plaintiff in Woodman sought to

establish a prima-facie-age-discrimination claim where the termination decision was made “by

officials of an acquiring company who had apparently never met her or reviewed her personnel

file.” 411 F.3d at 80. The employer’s obliviousness to the plaintiff’s age meant that the

employer could not have discriminated against her based on age, and so the prima facie case

failed. Id. at 90. But Woodman was based on facts that are unlike those in our case. Here, it is

undisputed that Gilbert and Kissel had met Kean prior to terminating him. Kean, 2024 WL

1815346, at *22. Even if neither Kissel nor Gilbert knew Kean’s exact age, both had spent

enough time with him to “guess his approximate age” just by looking at him, as the district court

found. Id.

For these reasons, Kean has met his burden to establish a prima-facie claim of age

discrimination.

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 20

2. Legitimate, Non-Discriminatory Reason

The burden now shifts to Brinker to offer legitimate, non-discriminatory reasons for

Kean’s termination. Brinker offers one reason, that it terminated Kean because of his

restaurant’s “culture.” Brinker Br. at 27. We assume without deciding that Brinker has

established its burden to assert a nondiscriminatory reason based on Kean’s independent

recollection of relevant events.

3. Pretext

We diverge with the district court’s decision on pretext. Because the TMR Report is not

admissible, the district court erred by relying on it. Without the TMR Report to explain its

asserted nondiscriminatory reason for terminating Kean, Brinker has little evidentiary support for

its position that it fired Kean because of the “culture” at his restaurant. In this context, Kean has

provided sufficient evidence of pretext to rebut Brinker’s explanation.

“An employee may show that an employer’s proffered reason for terminating him was

pretext by demonstrating that the proffered reason (1) has no basis in fact, (2) did not actually

motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged

conduct.” Willard, 952 F.3d at 810 (quoting Pierson v. Quad/Graphics Printing Corp., 749 F.3d

530, 539 (6th Cir. 2014)).

“We ‘consider all evidence in the light most favorable to the plaintiff, including the

evidence presented at the prima facie stage.’” Id. (quoting Provenzano, 663 F.3d at 812). “The

plaintiff must ‘produce sufficient evidence from which a jury could reasonably reject [the

defendant’s] explanation of why it fired [him].’” Id. (alterations in original) (quoting Chen v.

Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)). “In order ‘to survive summary judgment, a

plaintiff need only produce enough evidence to . . . rebut, but not disprove, the defendant’s

proffered rationale.’” Id. (alteration in original) (quoting Blair, 505 F.3d at 532). “At this stage,

the plaintiff must show that he can meet his burden of persuasion to demonstrate impermissible

bias was the but-for cause of his discharge.” Id.

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 21

Because the TMR Report is inadmissible, resolution is simple. 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 (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.

6

Kean did not forfeit this argument. See R. 48 (Kean Opp. to Mot. for Summ. J. at 6–7, 9, 14–15, 18)

(Page ID #1085–86, 1088, 1093–94, 1097).

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 22

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).

7

Kean did not forfeit this argument. R. 48 (Kean Opp. to Mot. for Summ. J. at 5–7 (Page ID #1084–86).

No. 24-5514 Kean v. Brinker Int’l, Inc. et al. Page 23

Ultimately, 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.

4. Business-Judgment/Honest-Belief Rule

As Brinker points out, even if Kean has provided enough evidence to create a genuine

issue of material fact regarding the reasons for his termination, Brinker may nevertheless be

entitled to summary judgment under the honest-belief rule. Blizzard, 698 F.3d at 286. “The

rationale behind the [honest-belief] rule is that the focus of a discrimination suit is on the intent

of the employer. If the employer honestly, albeit mistakenly, believes in the non-discriminatory

reason it relied upon in making its employment decision, then the employer arguably lacks the

necessary discriminatory intent.” Marshall v. The Rawlings Co., 854 F.3d 368, 380 (6th Cir.

2017) (alteration in original) (quoting Smith v. Chrysler Corp., 115 F.3d 799, 806 (6th Cir.

1998)).

For all the reasons already discussed, without the TMR Report, Brinker cannot establish

that it made a reasonably informed and considered decision before terminating Kean.

Accordingly, Brinker cannot invoke the honest-belief defense as a matter of law.

D. Kean’s Motion for Summary Judgment

We also affirm the district court’s decision denying Kean’s motion for summary

judgment. Although Kean timely appealed the district court’s order denying his motion for

summary judgment, R. 62 (Notice of Appeal at 1) (Page ID #1702), he has made no argument

before us regarding this aspect of the district court’s decision. Accordingly, Kean has forfeited

any potential challenge to the district court’s decision on the merits. See Ogbonna-McGruder v.

Austin Peay State Univ., 91 F.4th 833, 843 (6th Cir. 2024).

III. CONCLUSION

For these reasons, we VACATE AND REVERSE IN PART and AFFIRM IN PART

the district court’s order and REMAND for proceedings consistent with this decision.