                            NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                      Fed. R. App. P. 32.1



              United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                   Argued August 8, 2012
                                  Decided August 22, 2012

                                           Before

                              WILLIAM J. BAUER, Circuit Judge

                               DIANE P. WOOD, Circuit Judge

                               DIANE S. SYKES, Circuit Judge

No. 11-3290

VISHAKHA BANTHIA,                                   Appeal from the United States District
     Plaintiff-Appellant,                           Court for the Southern District of Indiana,
                                                    Indianapolis Division.
       v.
                                                    No. 1:09-cv-00963-SEB-DML
ROCHE DIAGNOSTICS OPERATIONS,
INC.,                                               Sarah Evans Barker,
      Defendant-Appellee.                              Judge.


                                         ORDER

      Vishakha Banthia claims that Roche Diagnostics Operations demoted her because she is
from India and over 40 years old. The district court granted Roche’s motion for summary
judgment. On appeal, Banthia argues that she presented sufficient evidence to create a
material dispute of fact about her claims. Because Banthia has not provided evidence showing
that she was discriminated against on account of her national origin or age, we affirm the
district court’s judgment.

      The following events are recounted in the light most favorable to Banthia. See Faas v.
Sears, Roebuck & Co., 532 F.3d 633, 635 (7th Cir. 2008). Banthia was born in 1953 in India and
earned her B.S. in chemistry there in 1974. Banthia later moved to the United States, and in
No. 11-3290                                                                                 Page 2


1989 Roche hired Banthia to work as a lab technician in the Quality Care division of its
Diabetes Care lab in Indianapolis. She was promoted two years later to a scientist position,
and as a scientist she operated equipment to evaluate the chemical properties of materials used
to make strips for measuring blood-glucose levels.

       In 2005, in response to a warning letter from the FDA noting problems in other Roche
labs, the director and manager of the Diabetes Care lab began to discuss reorganizing the lab to
improve its performance. Roche decided that scientists would now be required to understand
the science underlying the tests used and be able to identify problems with testing methods
and formulate solutions. Roche accordingly demoted some of its current employees from
scientists to lab technicians and hired better-qualified employees to fill open scientist positions.

     Banthia was one of the scientists who was demoted to a lab technician position, which
reduced her responsibilities and her salary. Lab management explains that it decided to
demote her in 2006 because she lacked expertise in running analytical equipment, and she had
not demonstrated an ability to help improve lab procedures, create spreadsheets, or write
technical protocols. Banthia’s 2006 evaluation said that although Banthia met expectations
overall, she fell short in two categories because she twice failed to follow procedure during an
internal audit, and she needed to improve her technical skills and learn to resolve testing
issues independently. The evaluation also noted that she needed to devote more attention to
improving the lab’s operating procedures. Her earlier evaluations from 2001 to 2005 were
more positive, but they also showed deficiencies in computer skills and lab procedures.

      The record contains statistics on the characteristics of the other ten scientists who worked
at the lab and were affected by the reorganization. Of the three other scientists demoted, two
were over 50 years old and non-American-born and one was over 40 years old and American-
born. Of the seven employees who were not demoted, all but one were American-born and
six were over 40 years old (four were over 50). Roche began hiring people for open scientist
positions, and of six new hires, each was American-born and in his or her twenties.

      Banthia sued Roche under the Age Discrimination in Employment Act, see 29 U.S.C.
§ 623(a)(2), and Title VII, see 42 U.S.C. § 2000e-2(a)(2), alleging that she was demoted because
of her national origin and age. In granting Roche’s motion for summary judgment, the district
court determined that Banthia could not establish a prima facie case under the indirect method
because, even if she had received positive evaluations in the past, she hadn’t presented any
evidence showing she could meet Roche’s legitimate, increased expectations for the scientist
position. The court observed that some of Banthia’s evaluations were negative and that she
did not meet expectations in two respects in her 2006 evaluation. And even if she had made
a prima facie case of discrimination, the court continued, Banthia had not presented evidence
No. 11-3290                                                                                Page 3


that Roche’s heightened standards after the FDA warning letter were pretextual. The court
ended by concluding that Banthia could not show discrimination under the direct method,
either, because she hadn’t presented any direct or circumstantial evidence that Roche demoted
her because of discriminatory animus.

     On appeal, Banthia first argues that she produced sufficient evidence that she met
Roche’s legitimate expectations. She relies on her performance evaluations from 1990 to
2005, which she says show that she consistently “met or exceeded Roche’s legitimate job
expectations.” She criticizes the district court for relying heavily on her 2006 evaluation,
reasoning that the evaluation was filled out after the decision to demote her had been made
and the negative comments were insignificant.

      Banthia’s performance reviews do not show that she was meeting Roche’s legitimate
expectations. What matters here is whether Banthia was meeting Roche’s expectations at the
time of her demotion. Moser v. Ind. Dep't of Corr., 406 F.3d 895, 901 (7th Cir. 2005).
Accordingly, her earlier performance reviews cannot by themselves show that she was meeting
expectations when she was demoted, particularly because the responsibilities of the position
had substantially changed in the intervening period. See Burks v. Wis. Dep’t of Transp., 464 F.3d
744, 753 (7th Cir. 2006); Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002).
Moreover, Banthia’s evaluations from 2001 to 2005 were not uniformly positive and
foreshadowed some of the reasons cited for her demotion, like failing to improve lab operating
procedures and deficient computer skills. Though Banthia’s 2006 evaluation was filled out
after Roche decided to demote her, the evaluation covers her performance for all of 2006,
including when Roche decided to demote her. Thus, the 2006 evaluation is arguably the most
helpful because it reflected her ability to meet expectations at the time of Roche’s decision. See
Burks, 464 F.3d at 753.

      Banthia responds that the 2006 evaluation was manufactured to bolster the already-made
decision to demote her. But she doesn’t present any evidence of dishonesty. Moreover, as
already noted, several of her earlier reviews corroborate the 2006 evaluation. And though the
2006 evaluation noted that Banthia had become better at complying with lab rules by the
end of the year, she cannot show that Roche did not genuinely conclude that she had not
met expectations in two categories. Because meeting an employer’s legitimate employment
expectations is a necessary element of a prima facie case, Greene v. Potter, 557 F.3d 765, 768 (7th
Cir. 2009); Faas, 532 F.3d at 641, this court may affirm the district court’s decision under the
indirect method of proof.

    Banthia also challenges the district court’s conclusion that, even if she had been able to
make out a prima facie case of discrimination, she could not show pretext. She argues that
No. 11-3290                                                                                  Page 4


Roche’s proffered reason for her demotion—improving the lab in the wake of the FDA
warning letter of 2004—was pretextual because the FDA focused Roche on problems in other
Roche labs, and Roche did not reorganize the Diabetes Care lab until three years later. She also
contends that the job responsibilities did not actually change, which she says shows that Roche
lied about increasing its expectations.

      But to succeed, Banthia must produce evidence that tends to show that Roche’s proffered
explanation for her demotion wasn’t just bad judgment, but was a lie, Silverman v. Bd. of Educ.,
637 F.3d 729, 744 (7th Cir. 2011); Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir. 2008),
and she has failed to do so. Even if the warning letter first focused Roche on other labs, the
only evidence in the record shows that it still caused Roche to reorganize the Diagnostic Care
lab later on in response to the letter, after it had taken care of the more pressing problems in
other labs. Moreover, Banthia’s assertion that scientists do exactly what she did before being
demoted is not borne out by the record. Roche has presented evidence showing that it expects
scientists to do more now than scientists did under the old system; then scientists were
required to do little more than follow the procedures developed by others but now scientists
must understand the science underlying the tests and work to improve them.

      Last, Banthia briefly argues that she presented sufficient evidence to survive summary
judgment under the direct method of proving discrimination. She cites circumstantial
evidence, specifically an email sent by the lab manager to a human resources manager telling
her who would be demoted, and briefly saying, “You will notice that the three individuals for
which a demotion is possible are minority employees.” She also points to the demographics
of the three other demoted Roche scientists.

       But the email evinces no discriminatory motive: nothing in it suggests that the national
origin of employees was the reason for the demotions, and the email could just as easily be
read to show that the lab manager wanted to ensure that the demotion decisions were fair.
See, e.g., Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d 470, 473 (7th Cir. 2008);
Venturelli v. ARC Cmty. Servs., 350 F.3d 592, 601 (7th Cir. 2003). And on their own, the sparse
statistics of demoted employees, non-demoted employees, and new hires fail to show
discrimination against non-American-born employees over 40 because standing alone,
“statistics cannot establish a case of individual disparate treatment.” Plair v. E.J. Brach & Sons,
105 F.3d 343, 349 (7th Cir. 1997) (quoting Gilty v. Village of Oak Park, 919 F.2d 1247, 1253 n.8
(7th Cir. 1990)). This is especially so since of those employees not demoted, all were over 40
and more than half were like Banthia over 50, and one of the three employees demoted was,
unlike Banthia, under 50 and American-born. See Faas, 532 F.3d at 643 (a pattern in which class
members sometimes do better and sometimes worse than comparators does not show
discrimination).

                                                                                       AFFIRMED.
