Among the first questions I ask when investigating a lawsuit accusing my client of discriminatory conduct is, \u201cWho made the decision?\u201d<\/p>\n
The reasons are simple.<\/p>\n
First, an adverse employment action \u2013 like termination, demotion, or failure to hire \u2013 doesn\u2019t just happen. A person makes the decision.<\/p>\n
Second, claims of employment discrimination turn on that person\u2019s motivations. Did the person take the adverse action because of the plaintiff\u2019s protected characteristic? Did that characteristic play a part in the decision?<\/p>\n
Winning or losing often comes down to how well the decisionmaker can explain the reasons for an adverse action and show that they were not a pretext for discrimination.<\/p>\n
When I have been lucky enough to be involved in the decision-making process, I counsel the employer on the importance of having a decisionmaker who will take ownership and, if necessary, be able to explain it credibly and convincingly to a jury.<\/p>\n
It\u2019s one thing for several managers to agree that an employee needs to be made available to the job market. It\u2019s quite another for one of them to own it.<\/p>\n
A recent opinion<\/a> of the U. S. Court of Appeals for the Sixth Circuit<\/a> reveals what can happen when no one steps up.<\/p>\n \u201cLiving the Chili\u2019s way.\u201d Apparently, it\u2019s a thing.<\/p>\n The following is from the opening paragraph of the Court\u2019s opinion. I doubt it gave Chili\u2019s much comfort for what was coming in the main course.<\/p>\n Jeff L. Kean was fifty-nine years old and working as a General Manager at one of the most profitable Chili\u2019s restaurants in the Nashville market when he was terminated and replaced by a thirty-three-year-old with no managerial experience. Chili\u2019s reasons for this are that Kean was creating a toxic \u201cculture\u201d and \u201cnot living the Chili\u2019s way\u201d \u2026 Despite Chili\u2019s explanations for his termination, by all objective measures, Kean\u2019s restaurant was one of the top performers in his market. So why did Chili\u2019s fire Kean? The answer is complicated.<\/p>\n Rather than get bogged down in those complications, I will turn the dial to flash fry and dish out just enough background to provide the required context.<\/p>\n In September 2018, Mr. Kean was assigned to a new supervisor, Marsha Gilbert.<\/p>\n Over the next several months, one of Ms. Gilbert\u2019s good friends complained about Mr. Kean, and a former employee complained that Mr. Kean wrongfully terminated him.<\/p>\n On November 27, 2018, after Ms. Gilbert and Regional HR Manager Hector Aponte \u201cagreed\u201d that Mr. Kean should be terminated, Ms. Gilbert notified Mr. Kean of his separation.<\/p>\n The next day Mr. Kean called Kristin Stofer, a Team Member Relations Specialist, to complain about age discrimination and say that \u201che was getting a lawyer.\u201d<\/p>\n During the months before that call, Ms. Stofer kept a report with notes about the employee complaints and copies of emails between Ms. Gilbert, Mr. Aponte, and others.<\/p>\n