[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]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
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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,
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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
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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).
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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").
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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
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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
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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,
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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
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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.
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