2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-17-2009

Jacob Marley v. Cort Furniture Rental Corporat

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3806

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Recommended Citation

"Jacob Marley v. Cort Furniture Rental Corporat" (2009). 2009 Decisions. Paper 646.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/646
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

 

No. 08-3806

 

JACOB G. MARLEY, 

 Appellant

v.

CORT FURNITURE RENTAL CORPORATION

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1-06-cv-04926)

District Judge: Honorable Noel L. Hillman

 

Submitted Under Third Circuit LAR 34.1(a)

September 14, 2009

Before: SLOVITER, FUENTES, and SMITH, Circuit Judges

(Filed: September 17, 2009)

 

 

OPINION

 
 We have jurisdiction over this appeal pursuant to 28 1

U.S.C. § 1291.

2

SLOVITER, Circuit Judge.

Jacob G. Marley appeals the District Court’s order granting summary judgment in

favor of appellee CORT Furniture Rental Corporation on Marley’s claim that CORT

discriminated against him in violation of Title VII and New Jersey state law by failing to

promote him to any of the three positions for which he applied, specifically in Retail

Sales, Executive Sales, and as Assistant Distribution Manager. We will affirm.1

Because we write primarily for the parties, our recitation of the facts is brief. 

Marley, who came to the United States from Liberia in order to conduct business on

behalf of the Liberian government, was granted asylum due to a Liberian civil war. In

October 2004, Marley began working for CORT as a delivery truck driver. In September

2005, Marley was involved in a car accident that resulted in his being placed on medical

leave until October 18, 2005. On Marley’s return to work, he was told by his doctor that

he should not lift anything heavy. Although Marley remained a delivery truck driver

despite his injury, he was given an additional assistant for moving the furniture he

delivered.

Sometime after Marley’s return to work, he expressed to CORT’s then-District

General Manager, Anthony DeCant, his desire to explore the potential for a promotion to

sales. DeCant was replaced by Bill Rosato in December 2005, and Marley informed
3

Rosato of his desire to start working in sales. The two met in February 2006, and their

versions of the meeting differ but they agree there was some reference to Marley’s accent,

which is the basis for Marley’s discrimination claim. Instead of resolving the issue of the

effect of Marley’s Liberian accent, the District Court granted summary judgment for

CORT on the ground that Marley failed to establish that he was qualified for any of the

positions he sought, and therefore did not make out a prima facie case.

In support of its motion for summary judgment, CORT relied on our decision in

Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008), where we held that a plaintiff

pursuing a mixed-motive theory of discrimination under Price Waterhouse v. Hopkins,

490 U.S. 228 (1989), must prove s/he was qualified for the position sought before

proceeding on a discrimination claim. We also stated that “[i]n this respect at least,

requirements under Price Waterhouse do not differ from those of McDonnell Douglas

[Corp. v. Green, 411 U.S. 792 (1973)” (often referred to as the pretext theory)]. The

District Court reviewed the record produced on summary judgment and analyzed the

qualifications needed for both sales positions for which Marley applied. The Court

determined that Marley did not meet the necessary qualifications.

The Court explained that for both sales positions an applicant was required to have

prior furniture sales experience and the ability to lift 25 pounds for the executive sales

position and 50 pounds for the retail sales position. The Court stated that “[b]ecause

Marley did not have the requisite experience or the ability [to] meet the lifting
4

requirements, he was not qualified for the jobs.” App. at 11. Moreover, although Marley

claimed to have previous sales experience, he did not dispute that he did not have any

furniture sales experience. We have reviewed the record and see nothing that suggests

the District Court erred.

The retail sales position was filled by Charles Jagger sometime after the meeting

between Marley and Rosato. Jagger had been with the company only a short time but had

previous sales experience. In addition, Jagger had participated in tent sales of CORT

furniture. Jagger received positive reviews in response to those tent sales. The executive

sales position was filled by an individual Marley described only as a, “short, white,

Caucasian kid.” App. at 306.

In May 2006, Richard Petchulat was hired as Assistant Distribution Manager. 

Marley alleges he was denied this position even though he applied for it, and that an hour

after he applied he was informed he was not qualified for the job. That position requires

three years experience in warehouse/distribution management. Prior to his employment at

CORT, Petchulat had seven years experience in warehouse management. Marley has

offered no testimony or evidence regarding his warehouse management experience.

Similarly, with respect to the Assistant Distribution Manager position, the Court

noted that Marley did not have three years of warehouse experience, a job requirement,

whereas the successful candidate did. Although Marley disputes that there was such a

requirement, he failed to articulate what the job requirements actually were and thus has
5

not met his required burden.

Accordingly, the District Court concluded that Marley failed to establish a prima

facie case for failure to promote based on his race, and the Court entered summary

judgment. We find no error in the District Court’s analysis. Accordingly, we will affirm