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 sufficient evidence in the record to demonstrate the existence

of a genuine issue of material fact for his case to proceed to trial. We disagree and consequently affirm the

district court’s judgment.
2 No. 06-1885

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)).

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 experience. 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 Quotesmith’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 information 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 twoyear 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 Quotesmith, 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
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 comment 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. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003). In

evaluating a motion for summary judgment, the district 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 explained,

The distinction between the two avenues of proof

is “vague,” Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir. 2006), and the

terms “direct” and “indirect” themselves are somewhat 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 proscribed 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 conforms 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 terminated Hemsworth because of his age and therefore we

must determine whether Hemsworth has provided sufficient circumstantial evidence in the record to demon-
6 No. 06-1885

strate a genuine issue of material fact. Circumstantial

evidence demonstrating intentional discrimination includes: “(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 protected 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 comment 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 discrimination 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 decision 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 plaintiff 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. Fairbanks 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 proposed 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 members of [his] protected class.” Id. “The burden of production 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, nondiscriminatory 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