           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            June 6, 2008

                                     No. 07-11104                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


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.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-11104

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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