In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4131

Diann Grube,

Plaintiff-Appellant,

v.

Lau Industries, Inc.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:99CV0593RM--Robert L. Miller, Jr., Judge.

Argued May 8, 2001--Decided July 19, 2001



  Before Bauer, Posner, and Coffey, Circuit
Judges.

  Coffey, Circuit Judge. On September 27,
1997, Lau Industries, Inc. asked Diann
Grube to accept a transfer from her then-
first-shift supervisor position to a
second-shift supervisor position. But
rather than accept the transfer, Grube
resigned and sued Lau under 42 U.S.C.
sec. 2000e, et seq., alleging that Lau
had discriminated against her on the
basis of her gender. The district court
granted Lau summary judgment, holding
that Grube had failed to establish either
that she had suffered an adverse
employment action or that Lau’s non-
discriminatory reasons for the shift
transfer were pretextual. We affirm.

I.   Factual Background

  Grube began working for Lau on December
13, 1995, after Lau Industries purchased
the Rochester, Indiana plant at which
Grube had worked since 1969 and had been
a supervisor since 1994. Grube’s direct
supervisor at all times relevant to this
appeal was Dan Sullivan, the
Manufacturing Manager at the Rochester
plant. Lau hired Scott Marquardt to
manage the plant in Rochester in July
1996.

  According to Grube, the event that
precipitated the discrimination was a
medical leave of absence that she had
taken to undergo surgery following an
automobile accident. The facts in the
light most favorable to the
nonmovingparty, plaintiff-appellant
Grube, are as follows. Grube underwent
surgery on June 23, 1997, and her doctor
advised her to remain on leave until
August 28, 1997. For reasons not apparent
in the record before us (and in any event
not relevant to the disposition of this
appeal) a nurse from Lau’s Disability
Management administrator contacted
Grube’s doctor’s office on August 7 to
obtain a release for Grube to return to
work, accompanied by any restrictions the
doctor recommended. Despite her doctor’s
earlier instruction for Grube to remain
off work until August 28, the doctor’s
office did issue a release stating that
Grube was able to return to work as of
that date with some restrictions.
Accordingly, after Grube was advised of
the release, she reported to work on
Monday, August 11. When Grube reported to
work, she and Sullivan contacted her
doctor to learn why she had been released
to work earlier than expected. The
doctor’s office sent via facsimile a
second release, which advised that Grube
remain on leave until August 28, 1997, as
originally instructed. When the release
arrived, Sullivan was not in his office,
so Grube placed the release on his desk
and then left.

  A short time later, Marquardt, the plant
manager, found the second release.
Marquardt contacted the doctor’s office
to attempt to resolve the conflict
between the releases as to when Grube was
able to return to work. Marquardt stated
that he called the doctor’s office
because "it was unclear what was going on
with her . . . [because] our office
received one doctor’s note which said
[Grube] was able to return to work with
restrictions, and then another note just
a few days later which said that she
could not return to work." Because
Grube’s doctor was on vacation, Marquardt
did not receive an immediate explanation
for the confusion, and ultimately Grube
returned to work on August 28, as
initially directed by her treating
physician. According to Grube, it was at
this time that Marquardt began to
discriminate against her.
  For example, on September 19, 1997,
Grube alleged that Lau held a meeting of
plant supervisors, during which Marquardt
criticized Grube’s department. Grube
stated that she had not been properly
notified about the meeting and so did not
arrive "until the very end of [the]
discussions, at which point in time [she]
was unable to present her rebuttal to
Marquardt’s criticism of her department."
At her deposition Grube testified that
she felt excluded from the meeting
because of her gender, and yet admitted
that there were other women in attendance
during the meeting. Grube also made clear
that she was never disciplined in
September 1997 because of problems in her
department.

  A few days later, during a September 24,
1997 meeting, Grube alleged that
Marquardt commented about absenteeism
among salaried personnel and concluded
his remarks, stating that "[w]e’re taking
care of the problem." Although Marquardt
did not mention Grube (or any other
supervisor) by name, Grube believed that
Marquardt’s comments were directed at her
because of her recent medical leave.
Grube inferred from Marquardt’s comment
that his earlier attempt to contact her
doctor had actually been an effort to
coerce her to return to work earlier than
she was able and in contradiction of the
doctor’s order. Grube, however, received
no discipline or negative performance
evaluation related to absenteeism.

  Shortly after the September incidents in
which Grube alleged Marquardt unfairly
criticized her, Grube alleged that
Marquardt put teeth into his words and
requested that she transfer to the second
shift. While Grube had been on leave, one
of the supervisors on the second shift
had resigned. Marquardt and Sullivan had
met to determine which of the eight
first-shift supervisors should be
transferred to fill the open position on
the second shift. Marquardt and Sullivan
assessed, among other things, the
strengths of each of the eight first-
shift supervisors. Marquardt concluded
that Grube was "not one of [Lau’s]
strongest supervisors," an assessment
with which Sullivan agreed. Further, both
Marquardt and Sullivan believed it
critical to keep Lau’s strongest
supervisors on the first shift. In
addition, Marquardt and Sullivan assessed
what impact moving each supervisor to the
second shift would have upon the
company’s overall productivity. At the
conclusion of their assessments,
Marquardt and Sullivan agreed to transfer
Grube to the second shift. To that end,
Marquardt commented that Grube could "be
more effective if she was placed on
second shift, where her job would
primarily be executing the production
plans developed on first shift and
handling people issues," rather than
being responsible for the design of those
production plans.

  Sullivan met with Grube on September 27,
1997, to inform her that she was being
transferred to the second shift. Grube
resigned twenty minutes later. According
to Grube, she resigned in part because
transferring to the second shift would
interfere with her ability to care for
her husband, who was undergoing treatment
for leukemia. Grube’s husband, however,
was working at the time and also no
longer required in-home nursing care. In
fact, the only daily medical care that
Grube did provide for her husband was
assistance in taking his medication.

  After Grube resigned, Marquardt and Lau
made several attempts to fill the open
(2) supervisor positions. Initially, Lau
promoted an employee from the first shift
to the second shift supervisor position.
But this employee failed to meet Lau’s
expectations as a supervisor and he was
returned to his original position. Lau
then conducted a search outside the
company for a qualified supervisor, but
was unable to hire anyone. Ultimately,
Lau decided to reorganize its supervisory
structure and, after streamlining
operations, Marquardt felt that a second
supervisory position on the second shift
was unnecessary and eliminated the
position.

  Meanwhile, after receiving a right to
sue letter from the Equal Employment
Opportunity Commission, Grube timely
filed this suit. She alleged five
specific instances in support of her
claim of sexual discrimination: 1)
Marquardt’s call to Grube’s doctor’s
office; 2) late notification of a meeting
where her department was criticized; 3)
being singled out for absenteeism; 4)
being reassigned to the second shift; and
5) Lau’s refusal to provide a letter of
reference after she had resigned.

  On October 30, 2000, the district court
granted Lau’s motion for summary
judgment, finding that neither the
criticism from Marquardt nor the transfer
to the second shift constituted an
adverse employment action and therefore
Grube had not established a prima facie
case of gender discrimination. In
addition, the court concluded that even
if Grube had established a prima facie
case of gender discrimination she had not
demonstrated that Lau’s stated reasons
for its actions were pretextual.

  On November 28, 2000, the final day of
the 30-day period for Grube to appeal the
district court’s judgment, Grube filed a
Rule 56(g) motion, alleging that Sullivan
had perjured himself by declaring that he
was unaware of Grube’s husband’s leukemia
until after her resignation. Shortly
later on that same day, Grube filed a
notice of appeal. On December 28, 2000,
the district court dismissed Grube’s
56(g) motion because it concluded that
jurisdiction was properly before this
court. Grube never filed a notice of
appeal from the district court’s December
28 order denying her 56(g) motion.

II.    Issues

  On appeal Grube asserts that the
district court erred in granting Lau
summary judgment on her gender
discrimination claim. Next Grube urges
that the district court erred in
concluding that it did not have
jurisdiction to hear her 56(g) motion.

III.    Discussion

1.    Standard of Review

  Summary judgment is proper if "there is
no genuine issue as to any material fact
and . . . the moving party is entitled to
a judgment as a matter of law." Fed. R.
Civ. P. 56(c). "We review de novo a
district court’s grant of summary
judgment, viewing the record in the light
most favorable to the nonmoving party."
See Gleason v. Mesirow Fin., Inc., 

, 1139 (7th Cir. 1997) (quoting
Anderson v. Baxter Healthcare Corp., 

, 1122 (7th Cir. 1994)). In
order to successfully oppose a motion for
summary judgment, the nonmoving party (in
this case, Grube) must do more than raise
a "metaphysical doubt" as to the material
facts. 

Elec.
Indus. Co. v. Zenith Radio Corp., 

, 586 (1986)). "Where the record
taken as a whole could not lead a
rational trier of fact to find for the
non-moving party, there is no ’genuine
issue for trial.’" Matsushita Elec.
Indus. 

.

  We also review de novo the district
court’s determination that it lacked
jurisdiction regarding Grube’s Rule 56(g)
motion. Manley v. City of Chicago, 

, 396 (7th Cir. 2001).

2.   Grube’s Gender Discrimination Claim

   Title VII forbids any workplace
discrimination "with respect to his
compensation, terms, conditions, or
privileges of employment because of such
individual’s race, color, religion, sex,
or national origin." 42 U.S.C. sec.
2000e-2(a)(1). A plaintiff who sues an
employer under Title VII bears the burden
of proving gender discrimination. One of
the methods to accomplish this goal is to
establish a prima facie case and apply
the burden shifting method described in
McDonnell Douglas Corp. v. Green, 

(1973).

  To successfully establish a prima facie
case, Grube had to demonstrate that 1)
she was a member of a protected class; 2)
she performed her job satisfactorily; 3)
despite the satisfactory performance she
suffered an adverse employment action;
and 4) Lau treated others outside the
protected class more favorably than Grube
was treated. See McDonnell Douglas 

. If Grube was successful
in establishing a prima facie case of
discrimination, Lau would then bear the
burden of producing a legitimate
nondiscriminatory reason for the adverse
employment action. Christensen v.
Equitable Life Assurance Soc. of the
United States, 

, 343 (7th
Cir. 1985). If Lau has produced a
legitimate reason, Grube would bear the
ultimate burden of persuading the court
that the reason given by Lau was merely a
pretext for the employment action. 

the third element of her
prima facie case, Grube claims she was
constructively discharged. An employee
can assert a claim of constructive
discharge when she is forced to resign
because her working conditions, from the
standpoint of the reasonable employee,
had become unbearable. Lindale v. Tokheim
Corp., 

, 955 (7th Cir. 1998).
Absent extraordinary conditions, "a
complaining employee is expected to
remain on the job while seeking redress."
Perry v. Harris Chernin, Inc., 

, 1015 (7th Cir. 1997). As courts
have noted, "’[a]n employee who quits
without giving his employer a reasonable
chance to work out a problem has not been
constructively discharged.’" Ulichny v.
Merton Comm. Sch. Dist., 

,
704 n. 16 (quoting Yearous v. Niobrara
County Mem’l Hosp., 

, 1356
(10th Cir. 1997)) (internal citations
omitted).

  Although her argument is not as clear as
it might be, Grube seems to assert that
Lau’s request that she accept a transfer
to the second shift in and of itself
would have caused a reasonable employee
to quit, and thus constituted a
constructive discharge. In support Grube
contends that a change in shift would
have disrupted her life, pointing to her
over twenty year tenure on the first
shift. But were we to hold that a mere
change in working hours would rise to the
level of creating a condition so
objectively unbearable as to allow an
employee to quit and then bring a claim
of constructive discharge, employers
would be in a most precarious position in
adapting and maintaining employee’s work
schedules to fit within the parameters of
their business needs. While we have
previously held that a transfer to
another city to a position that seemed
far from secure might support a claim of
constructive discharge, 

, Lau’s decision to change
Grube’s working hours certainly does not
rise to the level of an adverse
employment action. Grube’s pay and job
title remained the same, and she suffered
no significantly diminished job
responsibilities. Grube offers little
support, indeed she fails to offer a
single citation to a case from any
circuit, including ours, for the
proposition that a mere transfer from a
first to a second shift, unaccompanied by
a reduction in pay or significantly
diminished job responsibilities, can
support a constructive discharge claim.
Instead, Grube offers only conjecture,
rooted in stereotypes regarding the roles
of men and women in the family, to
support her position.

  For instance, Grube asserts that Lau
"preyed upon [her] wifely instincts"
knowing that she would choose to quit so
that she could take care of her husband
rather than accept a transfer to the
second shift. During oral argument
Grube’s counsel further suggested that we
should infer that her transfer to the
second shift was deliberately designed to
make her working conditions intolerable
because she could no longer be a
dedicated wife and caregiver for her
husband and because a female’s income
tends to supplement a family income,
rather than provide the principal source
of funds (and a male’s income tends to be
the primary family income). Such sweeping
generalities do little to bolster her
claim.

  Indeed, were we to accept Grube’s
position, any transfer of a married
female employee to a less desirable work
assignment could serve as the basis for a
Title VII claim. It certainly was not the
intent of the United States Congress in
enacting Title VII that it be so broad in
scope. Further, Grube’s position, it
seems to us, is actually antithetical to
Title VII’s intended purpose of
preventing workplace discrimination based
on gender. In enacting Title VII, "’Con
gress intended to strike at the entire
spectrum of disparate treatment of men
and women resulting from sex stereotypes.’"
Sheehan v. Donlon Corp., 

,
1045 (7th Cir. 1999) (quoting Sprogis v.
United Air Lines, Inc., 

,
1198 (7th Cir. 1971)). Grube urges this
court to take a position that, rather
than eradicating gender stereotypes that
pervade the workplace, instead reinforces
them. That is because Grube’s theory is
itself based upon a gender-specific
stereotype--that women should be the
family caregivers and should remain at
home during the evening hours. Quite
simply, Grube’s position that her
transfer to the second shift can support
a claim of constructive discharge is not
tenable.

  Grube also asks us to accept her theory
that the transfer created an objectively
intolerable working environment because
she needed to attend to her husband’s
medical needs. But the facts in this case
tell an entirely different story.
Although we in no way wish to disparage
the seriousness of Grube’s husband’s
illness, we note that he had returned to
work by the time Lau requested Grube
transfer to another shift. Additionally,
Grube did not provide any medical care
for her husband, other than helping to
administer medication. At argument,
Grube’s counsel clarified that Grube’s
ability to provide caregiving for her
husband was not at issue. Instead,
according to Grube’s counsel the proposed
transfer to the second shift would have
impacted the amount of "quality time"
Grube could spend with her husband. As
explained earlier, Title VII simply was
never intended to be used as a vehicle
for an employee to complain about the
hours she is scheduled to work or the
effect those hours have upon the time an
employee spends with family members.
Grube’s transfer is not an adverse
employment action and therefore she
cannot show that she was constructively
discharged.

  Grube offers little other information,
much less case law, to suggest that she
suffered an adverse employment action.
She alludes to the criticism she received
at the September 19 meeting and the
statements Marquardt made about
absenteeism at the September 24 meeting.
But as the district court properly noted,
unfair reprimands or negative performance
evaluations, unaccompanied by some
tangible job consequence, do not
constitute adverse employment actions.
See Murray v. Chicago Transit Authority,
No. 99-3774, 

, *5 (7th Cir.
May 10, 2001); Sweeney v. West, 

, 556 (7th Cir. 1998). Because neither
the transfer to the second shift nor the
negative comments Grube alleged were
directed at her constitute an adverse
employment action, Grube has not
satisfied the third prong of the prima
facie case.

  Even if Grube was able to demonstrate
that she had been constructively
discharged, Lau offered a legitimate
nondiscriminatory reason for the
transfer, thus obligating Grube to
demonstrate that Lau’s proffered reason
for the transfer--that Grube was the
employee most well-suited for the second-
shift position--was pretextual. Pretext
"means a dishonest explanation, a lie
rather than an oddity or an error."
Kulumani v. Blue Cross Blue Shield Ass’n,

, 685 (7th Cir. 2000). "A
’pretext for discrimination’ means more
than an unusual act; it means something
worse than a business error; ’pretext’
means deceit used to cover one’s tracks."

In considering whether Lau’s
reasons for transferring Grube to the
second shift were pretextual, "we bear in
mind that the overall correctness or
desirability of the reasons proffered is
not relevant. . . ." Baron v. City of
Highland Park, 

, 341 (7th
Cir. 1999). Instead Grube was required to
establish that: "1) the proffered reasons
are factually baseless; 2) the proffered
reasons were not the actual motivation
[for the decision]; or 3) the proffered
reasons were insufficient to motivate
[Lau’s decision to transfer her.]" 

several half-hearted
attempts to demonstrate pretext, each of
which are less than convincing. For
example, Grube suggests and speculates
without any substantiation in the record
that she had incurred the wrath of
Marquardt by standing up to him when she
returned from leave and that Marquardt’s
decision to transfer her was in
retaliation for her boldness. According
to Grube, Marquardt’s call to the doctor
to resolve the confusion surrounding the
two releases sent by the doctor’s office
was an effort on his part to force her to
return to work earlier than her doctor
had instructed. Grube contends that
because she stood up to Marquardt, and
did not return to work until August 28,
as originally ordered, that he developed
an animosity towards her, because he had
been shown up by a subordinate female
employee. Quite simply, Grube’s
speculation (and that is all that it is)
cannot stand to demonstrate pretext. See,
e.g., Miller v. American Family Mut. Ins.
Co., 

, 1008 n. 9 (7th Cir.
2000); Chiaramonte v. Fashion Bed Group,
Inc., 

, 401 (7th Cir. 1997);
Fairchild v. Forma Scientific, Inc., 

, 574 (7th Cir. 1998); Hedberg v.
Indiana Bell Tel. Co., Inc., 

,
933 (7th Cir. 1995).

  Next, Grube asserts that she was
"targeted" for the shift transfer because
two male employees, who like Grube had
recently returned from medical leave,
were not transferred. Grube insists Lau
needed a scapegoat to offer to the Union
to appease their concerns regarding
salaried-employee absenteeism. She claims
that the fact that she was selected to be
transferred, while neither of the two men
who returned from medical leaves were
similarly selected, demonstrates that
Lau’s reasons for transferring her were a
sham. But there was only one position to
fill, so only one (and not three)
employees needed to be transferred.
Without more, the mere fact that Lau
chose Grube for the transfer, as opposed
to two male supervisors, falls short of
establishing pretext.

  Finally, Grube suggests that Lau never
ultimately filled the second-shift
position after she resigned and therefore
the proposed move was a pretext to force
her to resign. But Grube again takes a
shortcut through the facts. Conveniently,
she ignores the fact that Lau did fill
her position immediately after she quit
by promoting a first-shift employee to
the supervisory position. This employee
did not perform as Lau expected and Lau
returned him to his original position.
Subsequently, Lau conducted an outside
search for candidates to fill the
position, but was unsuccessful. Only
after these two attempts to fill the
position did Lau reorganize its
supervisory structure and eliminate the
position Grube would have occupied.

  In short Grube has failed to point to
anything in the record that even remotely
suggests that Marquardt and Sullivan did
not honestly believe that transferring
her to the second shift was the best
alternative for Lau’s open supervisory
position. Therefore, even if Grube had
established a prima facie case (which she
did not), she did not demonstrate that
Lau’s proffered reason for transferring
her was pretextual, and the district
court properly granted summary judgment
in favor of Lau.

3. Grube’s 56(g) Motion

  Grube also argues that the district
court improperly decided it was without
jurisdiction to hear her 56(g) motion,
filed just before her notice of appeal.
But Grube never filed a notice of appeal
from the district court’s December 28 or
der dismissing her 56(g) motion for lack
of jurisdiction. Grube contends that she
filed a notice of appeal from the final
judgment and further briefed the
substance of the 56(g) motion in her
initial brief, and that should be
sufficient. But a notice of appeal from a
final judgment does not serve as a notice
of appeal from all future district court
orders. United States v. Hoover, 175,
F.3d 564, 570 (7th Cir. 1999); see also
Remer v. Burlington Area Sch. Dist., 

, 994 (7th Cir. 2000)
("Compliance with the notice of appeal
requirements of Rule 3 of the Federal
Rules of Appellate Procedure is a
prerequisite to appellate review"). Grube
never filed a notice of appeal from the
district court’s December 28 order
dismissing her 56(g) motion, and
accordingly, we are without jurisdiction
to review the district court’s decision.

  Even if we did have jurisdiction, it
would matter little. It is also
elementary that once a notice of appeal
is filed with the district court it is
divested of jurisdiction over the case,
and the appellate court assumes
jurisdiction. Kusay v. United States, 

, 193 (7th Cir. 1995) ("the
filing of a notice of appeal is an event
of jurisdictional significance--it
confers jurisdiction on the court of
appeals and divests the district court of
its control over those aspects of the
case involved in the appeal"). Once Grube
filed her notice of appeal from the
October 30 order, the district court was
without jurisdiction to entertain her
56(g) motion. In any event, on the state
of the record, we are forced to hold that
Grube’s position is without merit. Grube
argues that she discovered, after the
district court’s summary judgment ruling,
a witness who claims to have spoken with
Sullivan about Grube’s husband’s illness.
Sullivan declared earlier that he had not
known of Grube’s husband’s illness. Grube
contends that the statements are in
conflict and therefore one of the parties
must have committed perjury. But to
constitute perjury, the false statement
must concern a material fact. Marquardt,
not Sullivan, made the decision to
transfer Grube. What is more, Grube
admitted that Sullivan had not
discriminated against her. Not only is
the alleged perjury not material, we fail
to see that it is even relevant.
IV.   Conclusion

  We agree with the decision of the
district court that Lau’s proposed
transfer of Grube from the first to the
second shift, unaccompanied by any
significant change in job
responsibilities, pay or benefits, falls
far short of constituting an adverse
employment action. Accordingly, because
Grube has failed to demonstrate that she
suffered an adverse employment action,
she has not established a prima facie
case of gender discrimination. We also
agree with the district court that even
if Grube had established a prima facie
case of discrimination she did not
establish Lau’s proffered reason for her
transfer to be pretextual. Accordingly,
the district court’s grant of summary
judgment in favor of Lau was proper. In
addition, we hold that, because Grube
failed to file a notice of appeal from
the district court’s December 28 order
dismissing her 56(g) motion, we are
without jurisdiction to review that
decision. The decision of the district
court is therefore AFFIRMED.