Summary Calendar HUGH RUSSELL HUGHES v. Brinker International Inc

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-11104
Summary Calendar
HUGH RUSSELL HUGHES
Plaintiff - Appellant
v.
BRINKER INTERNATIONAL INC
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:06-CV-926
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Hugh Russell Hughes appeals following the district court’s grant of
summary judgment in favor of his employer, Brinker International, Inc., in a
suit raising a claim of age discrimination under the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621–634. Reviewing Hughes’s claims de novo, we
AFFIRM the district court’s judgment for the following reasons. See Berquist v.
United States Court of Appeals
Fifth Circuit
F I L E D
June 6, 2008
Charles R. Fulbruge III
Clerk

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Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007), cert. denied, 128 S. Ct.
1124 (2008).
1. Hughes argues that Brinker’s purported reasons for his
termination—poor performance and the sexual harassment of
another employee—were pretextual because his performance was
not inadequate and Brinker gave inconsistent reasons for his
discharge. He also asserts that he is innocent of the harassment
charge. The record documentation, including internal company e-
mail, shows that Hughes was given substandard performance
evaluations and warned about his performance four times in the
three years preceding his termination. It also shows that the sexual
harassment allegation, which occurred only two weeks before the
discharge, was discussed with Hughes at the time of his firing and
was consistently mentioned as a factor in the employment decision.
Whether Hughes was actually guilty of the charge is not relevant as
long as the employer reasonably believed it and acted on it in good
faith. See Waggonner v. City of Garland, 987 F.2d 1160, 1165–66
(5th Cir. 1993). There is no evidence to the contrary.
2. Hughes also reasons that the grounds for his termination
were pretextual because Brinker failed to follow company policy by
placing him on probation or suspending his managing partner
status due to his alleged poor performance. Hughes fails to show
that he was treated differently from others, and Brinker’s alleged
failure to follow company policy absent such a showing is
insufficient to demonstrate pretext. See Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir. 2007).
3. Hughes apparently contends that statistical evidence further
demonstrates pretext because only 22 of 88 managers in the

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Dallas/Ft. Worth area are over the age of 40. Hughes provides no
analysis of this evidence beyond the raw number and offers no
explanation of its context. Without more, the statistical information
fails to show pretext. See Cheatham v. Allstate Ins. Co., 465 F.3d
578, 583 (5th Cir. 2006).
4. Finally, Hughes asserts that there is a fact issue as to who
made the final employment decision and whether that person acted
merely as a “cat’s paw” for another employee. Hughes’s argument
is unavailing as he fails to show an improper animus by any Brinker
employee or that there was improper leverage exerted over anyone.
See Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004).
Hughes’s subjective speculation about his discharge is insufficient
to establish his claim. See id. at 654.
AFFIRMED.

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