                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-1885
WILLARD L. HEMSWORTH, II,
                                             Plaintiff-Appellant,
                                v.

QUOTESMITH.COM, INC.,
                                            Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
          No. 04 C 5622—Virginia M. Kendall, Judge.
                         ____________
  ARGUED JANUARY 17, 2007—DECIDED FEBRUARY 8, 2007
                    ____________


 Before FLAUM, KANNE, and EVANS, Circuit Judges.
  KANNE, Circuit Judge. Willard L. Hemsworth, II alleges
that he was fired from his position at Quotesmith.com, an
Internet-based insurance services company, in violation
of the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621, et seq. The district court
granted Quotesmith’s motion for summary judgment.
Hemsworth argues on appeal that he has provided suffi-
cient evidence in the record to demonstrate the existence
of a genuine issue of material fact for his case to pro-
ceed to trial. We disagree and consequently affirm the
district court’s judgment.
2                                                    No. 06-1885

                         I. HISTORY
   Quotesmith hired Hemsworth in November 1999 to be
its Senior Vice President of Marketing.1 Hemsworth was
fifty-three years old when hired and had in excess of
twenty-five years of marketing and sales executive experi-
ence. Prior to Hemsworth’s hiring, Robert Bland,
Quotesmith’s founder, chairman, president and CEO, had
been responsible for Quotesmith’s marketing operations.
Bland was forty-five years old when Hemsworth was
hired in 1999. Bland decided to hire an experienced
marketing executive because he planned to expand Quote-
smith’s marketing budget in 2000 from $14 million dollars
to $20 million dollars.
  Hemsworth interviewed with Bland and Quotesmith’s
Human Resources Director at the time, Karen Piccoli.
Hemsworth informed Bland during the interview of
various personal information including family informa-
tion and his age. Hemsworth and Quotesmith agreed to
a two year employment contract through December 31,
2001 that would automatically renew for an additional
year unless either party gave a sixty-day written notice
of termination. Hemsworth was terminated after his two-
year contract expired at the end of 2001.
  Quotesmith’s position is that it let Hemsworth go
because the company was experiencing financial losses
requiring significant cost-cutting. According to Quote-
smith, it had to lay-off a large number of employees and
reduce its marketing and operations activities to meet
its cost-cutting requirements. Hemsworth counters that


1
  As Hemsworth is the non-moving party, we construe all facts
and make all reasonable inferences in the light most favorable
to him. Merillat v. Metal Spinners, Inc., 470 F.3d 685, 690 (7th
Cir. 2006) (citing Healy v. City of Chicago, 450 F.3d 732, 738 (7th
Cir. 2006)).
No. 06-1885                                              3

the company’s business plan was to lose money in order
to expand its customer base. The company, according to
Hemsworth, was able to lose money because it had a
recent public offering of stock. Hemsworth argues that
Quotesmith actively terminated the employment of older
employees during its 2001 Reduction in Force (“RIF”). He
points to the fact that 84% of the employees eliminated
in 2001 were over the age of forty. Hemsworth also
points to a conversation between Quotesmith’s General
Counsel and Human Resources Director in 2001 in which
a comment was made that eliminating the employment
of such a large percentage of employees over forty “was a
problem.” Hemsworth also notes a comment from Bland
and another member of Quotesmith’s management in
2000 after Hemsworth experienced a mild stroke to the
effect that he “looked old and tired” when he returned to
work. Finally, he points to an age inappropriate com-
ment made by a member of Quotesmith’s management
during an employee’s evaluation. Hemsworth also alleges
that he did an outstanding job at the company and this
was demonstrated by the raise in his salary from $150,000
to $180,000 in his second year at Quotesmith.


                     II. ANALYSIS
  “We review grants of summary judgment de novo.”
Lummis v. State Farm Fire & Cas. Co., 469 F.3d 1098,
1099 (7th Cir. 2006) (citing Hrobowski v. Worthington Steel
Co., 358 F.3d 473, 475 (7th Cir. 2004); Rogers v. City of
Chicago, 320 F.3d 748, 752 (7th Cir. 2003)). Summary
judgment is proper “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c). In ruling on a motion for summary judgment, the
4                                              No. 06-1885

evidence of the nonmovant must be believed and all
justifiable inferences must be drawn in the nonmovant’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In considering a motion for summary judgment, the
district court is not required to scour the record in
search of evidence to defeat the motion; the nonmoving
party must identify with reasonable particularity the
evidence upon which the party relies. Johnson v. Cam-
bridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003). In
evaluating a motion for summary judgment, the dis-
trict court’s function is not to weigh the evidence and
determine the truth of the matter, but to determine
whether there is a genuine issue for trial. See Albiero v.
City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001) (“The
primary purpose of summary judgment is to isolate and
dispose of factually unsupported claims.”). A party who
bears the burden of proof on a particular issue may not
rest on its pleadings, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine
issue of material fact that requires trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); see, e.g., Koszola v. Bd.
of Educ. of the City of Chicago, 385 F.3d 1104, 1111 (7th
Cir. 2004) (citing Johnson v. Cambridge Indus., Inc., 325
F.3d 892, 901 (7th Cir. 2003)). The evidence relied upon
in defending a motion for summary judgment must be
competent evidence of a type otherwise admissible at
trial. Stinnett v. Iron Works Gym/Executive Health Spa,
Inc., 301 F.3d 610, 613 (7th Cir. 2002).
  The ADEA prohibits an employer from discharging an
individual because of his age. 29 U.S.C. § 623(a)(1). “To
establish a claim under the ADEA, a plaintiff-employee
must show that ‘the protected trait (under the ADEA, age)
actually motivated the employer’s decision’—that is, the
employee’s protected trait must have ‘actually played a
role in [the employer’s decision-making] process and
had a determinative influence on the outcome.’ ” Schuster
No. 06-1885                                                5

v. Lucent Techs., Inc., 327 F.3d 569, 573 (7th Cir. 2003)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000); Hazen Paper Co. v. Biggins, 507 U.S.
604, 610 (1993)). Hemsworth can attempt to demonstrate
his discrimination claims through either the direct or
indirect methods of proof. Ptasznik v. St. Joseph Hosp., 464
F.3d 691, 695 (7th Cir. 2006) (citing Scaife v. Cook County,
446 F.3d 735, 739 (7th Cir. 2006)). As we recently ex-
plained,
    The distinction between the two avenues of proof
    is “vague,” Sylvester v. SOS Children’s Villages Illi-
    nois, Inc., 453 F.3d 900, 903 (7th Cir. 2006), and the
    terms “direct” and “indirect” themselves are some-
    what misleading in the present context. For, as we
    recently explained in Sylvester, “direct” proof of
    discrimination is not limited to near-admissions by
    the employer that its decisions were based on a pro-
    scribed criterion (e.g., “You’re too old to work here.”),
    but also includes circumstantial evidence which
    suggests discrimination albeit through a longer
    chain of inferences. Id. at 902-03; see also Ptasznik v.
    St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir. 2006).
    The “indirect method” of proof involves a subset of
    circumstantial evidence (including the disparate
    treatment of similarly situated employees) that con-
    forms to the prescription of McDonnell Douglas Corp.
    v. Green, 411 U.S. 792, 802 (1973).
Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th
Cir. 2006). We evaluate Hemsworth’s claims under both
methods.
   In applying the direct method of proof, we note that
there is no admission from Quotesmith that it ter-
minated Hemsworth because of his age and therefore we
must determine whether Hemsworth has provided suf-
ficient circumstantial evidence in the record to demon-
6                                               No. 06-1885

strate a genuine issue of material fact. Circumstantial
evidence demonstrating intentional discrimination in-
cludes: “(1) suspicious timing, ambiguous oral or written
statements, or behavior toward or comments directed at
other employees in the protected group; (2) evidence,
whether or not rigorously statistical, that similarly
situated employees outside the protected class received
systematically better treatment; and (3) evidence that
the employee was qualified for the job in question but
was passed over in favor of a person outside the pro-
tected class and the employer’s reason is a pretext for
discrimination.” Sun v. Bd. of Trs. of Univ. of Illinois, ___
F.3d ___, No. 06-2438, 2007 WL 93313, at *12 (7th Cir.
Jan. 16, 2007); see, e.g., Rudin v. Lincoln Land Cmty. Coll.,
420 F.3d 712, 720-21 (7th Cir. 2005)). Hemsworth’s
proposed circumstantial evidence is (1) the comment
from Bland and another Quotesmith executive about his
appearance immediately after his stroke in 2000, (2) the
comment by the Quotesmith employee in 2001 mentioning
that laying off a large number of employees over forty
years old could be a problem, (3) the age-related com-
ment made by a member of Quotesmith’s management
when evaluating an other employee during Hemsworth’s
time at Quotesmith, and (4) the large percentage of
over forty year old individuals who were laid off by
Quotesmith in 2001.
  “[I]solated comments that are no more than ‘stray
remarks’ in the workplace are insufficient to establish that
a particular decision was motivated by discriminatory
animus.” Merillat, 470 F.3d at 694 (citing Cullen v. Olin
Corp., 195 F.3d 317, 323 (7th Cir. 1999)). However, a
particular remark can provide an inference of discrimina-
tion when the remark was (1) made by the decision maker,
(2) around the time of the decision, and (3) in reference
to the adverse employment action. Id. (citing Hunt v.
City of Markham, Illinois, 219 F.3d 649, 652-53 (7th Cir.
No. 06-1885                                              7

2000)). None of the comments complained of by
Hemsworth meet the requirement for consideration as
direct evidence and therefore were properly rejected by
the district court. Bland’s comment about Hemsworth’s
appearance in 2000 was made more than a year before
Hemsworth’s termination, the comment by the Quotesmith
employee about laying off a large number of employees
over forty years old was not made by a Quotesmith deci-
sion maker (and also demonstrates that Quotesmith was
aware of its legal obligation under the ADEA), and the
age related comment about another employee was made
before the time that Hemsworth was terminated.
   We are also unconvinced by Hemsworth’s proposed
statistical evidence because it does not provide sufficient
context for a proper comparison. Hemsworth argues
that 84% of the employees laid off by Quotesmith in 2001
were over the age of forty but does not explain how these
other employees compare to his situation. “In order to be
considered, the statistics must look at the same part of
the company where the plaintiff worked; include only
other employees who were similarly situated with respect
to performance, qualifications, and conduct; the plain-
tiff and the other similarly situated employees must have
shared a common supervisor; and treatment of the other
employees must have occurred during the same RIF as
when the plaintiff was discharged.” Balderston v. Fair-
banks Morse Engine Div. of Coltec Indus., 328 F.3d 309,
320 (7th Cir. 2003) (citing Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 614 (7th Cir. 2000)). Statistical evidence
is only helpful when the plaintiff faithfully compares one
apple to another without being clouded by thoughts of
Apple Pie ala Mode or Apple iPods. Hemsworth’s pro-
posed statistical evidence lacks the necessary context
needed for a meaningful comparison and therefore must
be rejected.
8                                               No. 06-1885

  Finally, we consider Hemsworth’s claims under the
indirect method. Hemsworth’s marketing duties were
reabsorbed by Bland after Hemsworth’s termination.
Consequently, we must apply the indirect burden shifting
method for a mini-reduction-in-force situation. See Johal
v. Little Lady Foods, Inc., 434 F.3d 943, 946 (7th Cir. 2006)
(citing Michas v. Health Cost Controls of Illinois, Inc.,
209 F.3d 687, 693 (7th Cir. 2000)). Hemsworth “must
establish a prima facie case of discrimination by showing
that (1) [he] is a member of a protected class, (2) [he] was
performing [his] job satisfactorily, (3) [he] suffered a
materially adverse employment action, and (4) [his] job
duties were absorbed by employees who were not mem-
bers of [his] protected class.” Id. “The burden of produc-
tion then shifts to the defendant to show legitimate,
nondiscriminatory reasons for its actions. Finally, the
burden shifts back to the plaintiff to attempt to show that
the defendant’s stated reasons are pretextual.” Id.
  Hemsworth cannot meet his requirements under the
indirect method. His job duties were reabsorbed by Bland,
an individual who is also within the protected class
because he is over the age of forty. Additionally, even if
we overlook Hemsworth’s failure to make his prima facie
case, Quotesmith has provided a legitimate, nondiscrimi-
natory reason for Hemsworth’s termination due to its
financial downturn. Hemsworth has not rebutted that
explanation.


                    III. CONCLUSION
    The judgment of the district court is AFFIRMED.
No. 06-1885                                         9

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—2-8-07
