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The Employer Handbook Blog
The Dog Ate Our Documentation. The Court Ate Our Defense.
They said he wasn’t “living the…culture.” But when there was no documentation, deleted emails, and a termination memo created after the employee raised age discrimination concerns, the court didn’t buy it—and told a jury to take it from here.
TL;DR: A federal appeals court just revived an age discrimination lawsuit after finding that an employer’s vague explanation—paired with deleted emails, missing records, and a memo created after the employee complained internally about age bias—could support a finding of pretext.
🔗 Read the Sixth Circuit opinion here
A top-ranked manager, coded comments, and a disappearing record
A manager in his late 50s had been with the company for over a decade. His restaurant ranked at or near the top across key performance metrics—sales, cleanliness, guest satisfaction, and employee engagement.
Then a new regional leader showed up for a surprise “culture” visit. Days later, the manager was fired.
There were no write-ups, no warnings, and no performance improvement plan. The stated reason? He wasn’t “living the…culture.”
The manager’s replacement was about 20 years younger. According to the record, coworkers and supervisors had referred to him as “Old Man,” “Pops,” and “Grandpa,” and called his management style “old-school.” He also recalled being told the company needed someone with more “energy” who could reflect a “millennial image.” These comments—coupled with the abrupt termination and the lack of any documented performance issues—led him to believe that age was a motivating factor.
After the termination, the employee complained to HR that he believed he had been discriminated against based on age. Only then did the company compile a memo summarizing its rationale—a document the court later found was created well after the decision itself. Emails discussing the decision were also deleted, and a litigation hold wasn’t issued until months later.
The court didn’t buy the backfilled narrative
The Age Discrimination in Employment Act (ADEA) protects employees age 40 and over from adverse employment actions based on age. Under its burden-shifting framework, if the employer offers a nondiscriminatory reason, the employee can still prevail by showing that reason is a pretext.
Here, the employer claimed the firing was about “culture.” But the court identified serious credibility concerns:
- The company didn’t document the decision at the time, despite a policy requiring it.
- The memo justifying the termination—the so-called TMR Report—was pulled together only after the employee complained to HR about age discrimination.
- No one at the company could say who wrote it or who signed off on it.
- It wasn’t created at the time of the firing.
- And the court said it couldn’t be used as evidence because no one could prove it was real or reliable.
- Emails discussing the firing were deleted, and a litigation hold wasn’t issued until months later.
- Key witnesses gave conflicting and vague accounts of who made the decision and why.
- The company’s stated rationale didn’t align with the employee’s strong performance record.
- Supervisors and coworkers had used age-related nicknames like “Old Man,” “Pops,” and “Grandpa.”
The court didn’t rule on whether the termination was illegal—but it did rule that a jury should decide.
Three reminders for employers who think the story ends with termination
1. If your records vanish and your rationale evolves, expect trial
Courts expect real-time documentation. A memo created only after an internal complaint—paired with deleted emails—won’t do your case any favors.
2. Don’t tolerate casual age-based remarks
Terms like “old-school,” “Pops,” and “we need more energy” may sound harmless, but in context, they can support a claim of bias. Jokes and euphemisms carry legal weight.
3.Your retention policy won’t save you if you don’t follow it
The company failed to document the termination and violated its own records retention policy by deleting internal emails. That failure helped turn a culture-based firing into a federal case.
The bottom line
You can say a termination was about culture. But if your documentation shows up late, your witnesses can’t agree, and your workplace language hints at bias, a jury may decide what it was really about.