       [NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]



          United States Court of Appeals
                        For the First Circuit


No. 01-1979

                        MARIE BERTHE FRANCOIS,

                        Plaintiff, Appellant,

                                  v.

                       PUTNAM INVESTMENTS, LLC,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro, U.S. District Judge]



                                Before

                      Lynch, Circuit Judge,
          Campbell and Bownes, Senior Circuit Judges.



     Malcolm J. Barach for appellant.
     Ilene Robinson Sunshine, with whom Sullivan & Worcester LLP
were on brief, for appellee.




                            April 25, 2002
            BOWNES, Senior Circuit Judge.                     This is an appeal by

plaintiff-appellant Marie Berthe Francois from a grant of summary

judgment to defendant-appellee Putnam Investments, LLC.                       Plaintiff

is an African-American woman whose country of origin is Haiti. She

claims   that    defendant      failed         to   promote    her   to   a   full-time

position, as promised, because of her race and national origin.

The   district    court,       in    a    well-reasoned        opinion,    found   that

plaintiff failed to establish a prima facie case of discrimination.

We affirm.

                                         I.    FACTS

            Defendant's business is providing financial investment

services.     Plaintiff first worked for defendant as a part-time

temporary     employee     in       Putnam's        Image    Operations    Department,

performing photocopying and related tasks.                      She started work in

November, 1994, but left her job less than a year later without

giving notice.      This would normally render her ineligible to be

rehired under Putnam's employment rules.

             Plaintiff applied for work again with Putnam in September

1996.    Her previous employment record apparently was not noted by

defendant    because     she    was      hired      as   a   temporary    processor   in

Putnam's Adjustments Department.                    As a processor, plaintiff was

involved in data processing and making adjustments in records of

various financial transactions.                  This work was considered to be


                                              -2-
difficult and demanding.        Newly-hired processors received dual

training: direct instructions and on-the-job training.             It soon

became evident to plaintiff's supervisors that plaintiff was unable

to grasp the fundamentals of the adjustments process.            Defendant

used a weekly tracking system to determine the productivity and

accuracy of its processors.      Plaintiff's track record showed that

she did not approach Putnam's target standards and consistently

performed below the level of her peers.

             Defendant decided that plaintiff should be given the

opportunity to retrain in the adjustments department in November,

1996.   Three supervisors met with plaintiff and told her that if

her performance improved after the retraining, she would be given

the   next   available    permanent    appointment   in   the   adjustments

department.    Plaintiff's retraining was not successful.         According

to defendant, plaintiff also added to her work difficulties by

reporting late for work on three occasions between early November

and December, 1996.      She was given an early warning that lasted for

three months, until March 3, 1997.          Defendant had a policy that

prohibited a temporary employee from becoming a permanent employee

while under a disciplinary warning.

             In mid-December, 1996, plaintiff filed a charge with the

Massachusetts Commission Against Discrimination (MCAD) alleging

that one of her supervisors, Ronald Cupples, delayed her permanent

appointment, citing her lack of productivity.         Plaintiff alleges,


                                      -3-
however,    that   this   was   only    a    pretext       to   cover   up    racial

discrimination.    Another of her supervisors, Robbin Beauchamp, met

with plaintiff to investigate her claim of racial discrimination

and discuss the MCAD charge. As quoted at length, infra, plaintiff

offered two differing accounts of this conversation, from which she

claims racial discrimination against her can be found.

            On January 9, 1997, Beauchamp again met with plaintiff to

explore the possibility of her being transferred to the Image

Operations     Department.      According          to    Beauchamp’s    affidavit,

plaintiff    did   interview    for    a     job    in    the   Image   Operations

Department.     She was rejected for the position after she told the

hiring manager that she had previously worked in the department and

did not like the management, rules, work, or atmosphere.

             In late January, 1997, plaintiff was assigned to work on

her   department’s    "special    projects."              These   projects      were

adjustments to customer accounts that were very extensive and took

much longer than the regular process adjustments. She was assigned

to work with Trisha Labonte, who reviewed and exercised quality

control over all of plaintiff's work.               Labonte met with plaintiff

and pointed out to her that she was not doing the work properly and

did not have a good understanding of what was required.                      Labonte

gave plaintiff a copy of a memo that she (Labonte) was giving to

the department supervisor.       It contained a list of five mistakes




                                       -4-
that plaintiff had made on a project on which she had worked.

According to Labonte, plaintiff signed the memo without comment.

            On February 6, 1997, plaintiff expressed an interest in

two vacant processing jobs in other departments, but was told that

she   was    ineligible     for     another      processing      position.       On

February 12, 1997, plaintiff resigned from Putnam. She left a note

on Cupples's desk, which read:

            I will not be here on Friday, 2/14/97. I will
            not have a chance to see you and say good bye.
            If I don't, I want you to know it was a
            pleasure to have you as my supervisor. I had
            learn [sic] a lot from here.      I will miss
            everybody.

                                          Sincerely,


                                          Marie Berthe Francois

            Beauchamp      stated   in    an    affidavit   that    at    the   time

plaintiff resigned, she told him that her husband was returning to

Haiti for work and she needed to stay at home and care for their

children.

                           II.    STANDARD OF REVIEW

            Our review is de novo.         Mulero-Rodriguez v. Ponte, Inc.,

98 F.3d 670, 672 (1st Cir. 1996).               We must consider the evidence

"in the     light   most   favorable      to,    and   drawing   all     reasonable

inferences in favor of, the nonmoving party." Feliciano de la Cruz

v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.

2000).


                                         -5-
          Where   the   party    opposing   summary   judgment   has   not

presented specific competent proof of a genuine issue of material

fact, we must affirm the judgment below.       Rogan v. City of Boston,

267 F.3d 24, 27 (1st Cir. 2001); Crawford v. Lamantia, 34 F.3d 28,

31 (1st Cir. 1994), cert. denied, 514 U.S. 1032 (1995).

                          III.    DISCUSSION

          Plaintiff asserts two claims of racial discrimination:

one under federal law for violation of Title VII of the Civil

Rights Act of 1964, and one under the laws of Massachusetts, Mass.

Gen. L. ch. 151B.   After ruling that plaintiff had not proven a

prima facie case of discrimination under federal law, the district

court dismissed the state law claim on the same grounds.

          Plaintiff argues that the district erred by: failing to

closely examine the overall record and total circumstances of the

case; ignoring plaintiff's verified complaint (and sworn statement

filed with the MCAD); and improperly weighing the validity of

initial material offered as evidence.

          We begin our analysis by examining the verified complaint

and the sworn statement filed with the MCAD.      Under the law of this

circuit a verified complaint is treated as the

          functional equivalent of an affidavit to the
          extent that it satisfies the standards
          explicated in Rule 56(e) (in summary judgment
          milieu, affidavits "shall be made on personal
          knowledge, shall set forth such facts as would
          be admissible in evidence, and shall show
          affirmatively that the affiant is competent to
          testify to the matters stated therein").

                                   -6-
Skeinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir. 1991); see also

Simas, 170 F.3d at 46.

           In    reviewing    the    sworn   allegations       in   plaintiff's

complaint we keep in mind the restrictions that apply:

           At summary judgment, the district court cannot
           accept on faith conclusory assessments by
           claimants that unspecified and unattributed
           epithets were "derogatory" and "denigrating,"
           let alone demonstrated discriminatory intent.
           See Pilgrim, 118 F.3d at 871 (noting that
           plaintiff's "[subjective] perception is not
           evidence" of discriminatory intent, hence "not
           enough to withstand summary judgment"); . . .
           see also Douglass v. United Servs. Auto.
           Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en
           banc) ("It is . . . well settled that an
           employee's subjective belief that he suffered
           an adverse employment action as a result of
           discrimination, without more, is not enough to
           survive a summary judgment motion, in the face
           of proof showing an adequate nondiscriminatory
           reason.").

Santiago v. Canon USA, Inc., 138 F.3d 1, 6 (1st Cir. 1998).

           Paragraph 7 of the verified complaint states: "Francois

was promised and assured that she would become permanent full-time

because defendant was satisfied with her productivity."               The basic

question in this case is whether plaintiff adduced sufficient

evidence that she left her employment at Putnam because racial

discrimination barred her from becoming a permanent employee rather

than her being denied permanent status because she was unable to do

the   required   work.       There   is   nothing   in   the    record   beyond

plaintiff's self-serving statements that defendant "was satisfied

with her productivity."         Indeed, the affidavits and statements

                                      -7-
filed by defendant are directly contrary.           Moreover, the record

shows that in the process of training for a temporary position, she

quit without formal notice to defendant.         And the note she left for

Cupples did not contain any claims of racial discrimination;

rather, it stated: "I want you to know it was a pleasure to have

you   as   my   supervisor."    According   to    Beauchamp’s    affidavit,

plaintiff told him that her reason for leaving was that her husband

had returned to Haiti and plaintiff had to look after their

children.       On the record, we find it hard not to accept the

district    court’s    conclusion   that    an    essential     element   of

plaintiff’s prima facie case is lacking - namely the existence of

credible evidence that plaintiff was qualified to perform the

permanent data processing position she sought.

            Moreover, even assuming plaintiff had established a prima

facie case, defendant presented overwhelming evidence that it had

a legitimate, non-discriminatory reason for not promoting plaintiff

to a permanent position.       Evidence of pretext was simply absent.

The pleadings and pretrial material show that the only evidence of

racial discrimination came from plaintiff’s conclusory allegations.

The racially discriminatory statements that plaintiff alleges were

made by Cupples and Joseph Larabee (Senior Operations Manager at

Putnam who approved plaintiff’s hiring in 1996) were denied by

both.      We realize that the denials do not erase the alleged

statements and that if they were of sufficient significance to


                                    -8-
warrant a finding, the question of whether or not they were made as

asserted would be a disputed issue of material fact for the

factfinder to determine.      The question for us is not credibility,

but materiality.

           At   her    pretrial   deposition,   plaintiff   testified   as

follows:

           Q. Can you tell me who at Putnam you think
           was responsible for discriminating against you
           because of your race?

           A.     I don't know.     After I filed the
           complaint, my supervisor approached me and
           told me, "I've got nothing to do with you,
           Marie.   If it was for me, you'd be here
           forever.   But I have orders from the upper
           management to get rid of you because you were
           hired by mistake."

           Q.         Who told you that?

           A.         Ron Kupples [sic].

           Q.   He told you he was ordered to get rid of
           you?

           A. He got order [sic] from upper management
           to get rid of me, because, "I cannot fire you,
           you didn't do nothing." He called me on the
           December after they find [sic] out about the
           MCAD complaint.

               And then he called me not at his office,
           not at his cube, in the conference room where
           we always have the staff meeting. It's like a
           private room like this one here.

              He says, the first thing he asked me, "Why
           are you doing this, Marie? I'm not a racist."
           I said, "Then who is the racist?" He says, "I
           just want you to know I get [sic] order to get
           rid of you.    You haven't done anything.    I
           cannot just fire you like that. But I got,

                                    -9-
          they give me an order to get rid           of   you
          because you were hired by mistake."

             I asked him, "What do you mean by that, I
          was hired by mistake?"   He says to me, "Be
          smart, but I'm not a racist." I asked him,
          "Why did they want to get rid of me? I did
          not do anything." He said, "Be smart, Marie.
          Come on. It's just to let you know I'm not a
          racist."

          Several   pages   later,   plaintiff   described   a   slightly

different verison of what she viewed as racial discrimination:

             I thought it was going to be at his cube.
          He said, "No, let's go to the conference room,
          that would be more private and confidential."
          He said, "Why are you doing this?" I said,
          "What, what am I doing?" He said, "We find
          out there's a complaint with the MCAD." And
          he showed me a copy of it.

             I said, "Yes, I did." He said, "Why?" And
          I explained it to him. He said, "Marie, I'm
          not a racist. The real racist, you don't even
          point your finger at the real racist.       My
          position is to get rid of you because you were
          hired by mistake. I get the order to get rid
          of you, somehow get Marie out of the company.
          But you haven't done nothing, I can't just
          fire you, because you do nothing."

             But he said, "My job is to put you in the
          position to stress you out to leave the
          company." And then I asked him, I said, "What
          do you mean by I was hired by mistake?     He
          stated, "Come on, Marie. Be smart. You know
          what I'm talking about." I said, "Okay."

          Even if we accept the attributed statements as true, they

are not sufficient alone or in addition to the other alleged

instances of racial discrimination stated in the verified complaint

to substantiate plaintiff's claim of racial discrimination.          They


                                 -10-
fail as a matter of law.         See, e.g., Cardona v. United Parcel

Service, 79 F. Supp. 2d 35, 42 (D.P.R. 2000) (noting a court should

not   accept   a   nonmovant's    "conclusory   allegations   regarding

discriminatory intent").1

            We agree with the district court that plaintiff failed to

make out a prima facie case of discrimination based on race and/or

country of origin.     Accordingly, we conclude that, based on the

record and the pleadings, the district court properly dismissed

both the federal and state law claims.

Affirmed.




      1
      Paragraph 28 of the verified complaint states:
          On July 8, 1997 MCAD found there was
          sufficient    evidence   that   Francois    was
          discriminated against by Putnam based on her
          race/color     and   national    origin    and,
          subsequently, Francois informed MCAD that she
          would proceed with her case in court.
     But there is no copy of such a finding in the record. Based
on our reading of the record and statements made by counsel at oral
argument, no finding was made by the MCAD. Plaintiff claims that
she was told what is alleged by an employee of the MCAD.
Plaintiff, however, does not know the name of the employee who
supposedly gave her the information and offers no other support for
her contention that the MCAD made such a finding.

                                   -11-
