1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 1938

_____________ DARYL MURRAY ,

Appellant

v. BEVERAGE DISTRIBUTION CENTER, “BDCI”; JFFEREY A. HONICKMAN, Individually and in his capacity as Chief Exe cutive Officer for BDCI; GWEN DOLCEAMORE, Individually and in her capacity as Vice President of

Informational systems for BDCI; JEFFREY M. STANLEY, Individually and in his capacity as In

- House Counsel and

Executive Vice President for BDCI; LEWIS I. GANTMAN , Individually and in his capacity as In

- House Counsel and

Executive Vice President for BDCI; SANTO BONANNO, Individually and in his capacity as Vice President of Informational Systems for BDCI; WALT WILKINSON, Individually and in his capacity as Chief Fin ancial Officer for BDCI; JENNIFER L. HALE

- EAGLAND, Individually; BLANK ROME LLP, A Limited Liability Partnership

_____________ On Appeal from the United States District Court for the District of New Jersey ( No. 1

- 09

- cv - 05403 ) District Judge: Honorable Joseph E. Irenas

_____________ Submitted Under Third Circuit L.A.R. 34.1(a)

May 6, 20132 Before: SLOVITER, FUENTES, and ROTH , Circuit Judges

(Opinion Filed: July 29, 2013 )

_____________ OPINION OF THE COURT

_____________ FUENTES, Circuit Judge : Daryl E. Murray appeal s the District Court ’s O rder granting summary judgment to Beverage Distribution Center, et al. (“BDCI”) on the issue of whether BDCI conducted discriminatory hiring practices against Murray. Murray also oppose s the District Court’s Order denying hi s Motion to Alter or Amend the Order granting summary judgment in favor of BDCI

. For the following reasons, we will affirm the decision s of the District
Court.
I. Background Because we write primarily for the partie s, who are well acquainted with this case, we recite only the facts essential to our disposition of this appeal. BDCI is headquartered in Pennsauken, New Jersey, and is a service company which provides administrative warehouse functions for Pepsi Cola and National Brand Beverages, as well as Canada Dry Delaware Valley. On January 8, 2007, Murray submitted his resume to BDCI through a third party , The WorkPlace Group (“WPG”) , for a Project Manager position

. BDCI contracted with WPG to handle recruiting fo r open employment positions within
BDCI. A WPG recruiter, Sara Salvatore, subsequently contacted Murray to discuss hi s candidacy and to complete a required assessment of Murray for the application process

. Murray, by his own admission , “immediately put t he brakes on the conversation” and3

refused to continue with th e application process. A pp. 188 . Murray expressed concerns to Salvatore that one of the Hiring Managers at WPG , Gwen Dolceamore, had previ ously discriminated against him, and he therefore refu sed to cooperate with the application process until he was assured Dolceam ore was not involved in evaluating his candidacy

. WPG did not refer Murray to BDCI for consideration for the Project Manager position because of his “very poor attitude” and lack of completing the required
assessment. A

pp. 22 1, 225

. A fter not being contacted by anyone from WPG or BDCI, Murray sent an e

- mail to Salvatore indicating that he planned to file a legal claim against BDCI for discrimination. Salvatore forwarded the e

- ma il to Jeffery Stanley, who was then BDCI’s Senior Vice President of Human Resources. Not long thereafter, Stanley contacted Murray via telephone to determine if there was any possible resolution between the parties. Murray stated that there was no way of resolving the situation other than through legal action

. On May 19, 2007, Murray submitted a cover le tter and resume directly to Stanley
at BDC I for another Project Manager position. S tanley wrote to Murray , advising him to contact Mila Edelman at WPG, and to complete the assessment and application process. Murray did not follow through. Eventually, Edelman e - mailed Murray telling him to contact her and to complete the assessment process

. Murray called her back but never completed the application. I n October 2007, BDCI hired a different agency, Source One Technical Solutions (“Source One”) , to handle recruiting . Murray never applied for a job through Source One , even thou gh there were open positions

.4

I n October 2009, Murray , an African

- American mal e, filed a complaint in the District of New Jersey against BDCI and various officers and vice

- presidents of the company (collectively “BDCI”), alleging race and gender discrimination, and retaliation , in violation of 42 U.S.C. § 1981 and the New Jersey Law Against Discrimination,
N.J.S.A. §§ 10:5

- 1 to

- 49

. He also asserted that BDCI and its CEO, Defendant Jeffrey Honickman, negligently hired, supervised, and trained the other Defendants.
I n September 200 9 , BDCI filed a motion for summary judgment which the District Court granted on November 23, 2010

. Mu rray, if he so chose, had 28 days to file a motion to alter or amend the judgment, pursuant to Fed. R. Civ. P. (“ Rule ”) 59(e). Murray filed a Rule 59(e) motion on the last of the 28 days, December 21, 20 10. However, t he court clerk mistakenly recorded the motion as being filed on December 22, 2010, a day o utside of the 28

- day limit. BDCI never contested the timeliness of the Rule 59(e) motion. Ultimately , the District Court denied Murray’s Rule 59(e) m otion on grounds of timeliness and on the merits. On February 23, 2011, Murray wrote a letter to the District
Court notifying the C ourt of the clerical error , and asking the C ourt to a mend its O pinion dismissing his Rule 59(e) motion on the basis of timel iness . In the letter, Murray expressed his concerns that unless the error was rectified, his right to appeal would be prejudiced because an untimely Rule 59(e) motion would not toll the thirty

- day period to file a notice of appeal under Fed. R. App. P

. ( 4 )(a)(4 ). On March 9, 2011, t he District
Court directed the Clerk of Court to correct the docket, and to amend its February 14,5

2011 O pinion to delete the holding that Murray’s December 21, 20 10 motion was untimely

. On April 7, 2011, Murray filed a notice of appeal. Although BDCI did not contest the timeliness o f Murray’s appeal , we appointed amicus counsel to address : whether this Court has jurisdiction over [Murray’s] appeal, and, in doing so, should specifically address the following issues: (1) wheth er appellant’s motion fi led in the District Court on Feb ruary 23, 2011 (docket entry #116) pursuant to Fed. R. Civ. P. 52(b) tolled the time to appeal, see Aybar v. Crispin

- Reyes , 118 F.3d 10, 13

- 14 (1st Cir. 1997); Fed. R. App. P. 4(a)(4); and (2) whether the February 23, 2011 motion, including its cover letter, may be treated as a request to the District Court for relief under Rule 4(a)(5) of the Federal Rules of Appellate Procedure. Order dated May 17, 2012

. II . Discussion A . Jurisdiction We must firs t determine whether Murray’ s February 23, 2011 letter tolled the thirty

- day period to file a notice of appeal after the District Court’s entry of judgment under Fed. R. App. P. (4)(a)(4)

. 1 We hold that it does.
In Jusino v. Zayas , 875 F.2d 986, 990 (1st Cir. 1989) , the First Circuit addressed a similar factual scenario. There, a clerk had mistakenly entered the d istrict c ourt’s judgment into the docket on June 2, 1987 instead of June 5, 1987. Id. at 988. On June 19, 1987, the defendants submitted a Rul e 59(e) motion to alter or amend the judgment; however, on July 17, 1987, the district court denied the motion because it was not filed

1 T he timeliness of the Notice of Appeal speaks directly to whether we have jurisdiction ove r the case at hand. 28 U.S.C. § 2107. Thus, the issue of timeliness is an essential issue, regardless of whether it was contested by BD CI.6

within ten days of the mistakenly recorded entry of judgment. 2 Id. On August 6, 1987,
t he defendants filed a motion re questing reconsideration of the July 17, 1987 O rder based on the clerk’s error

. Id. On October 11 , 1988, the motion for reconsideration wa s granted by the district court on the timeliness issue; however, the motion was ultimately denied on the merits. 3 Id. at 988

- 89. The defendants filed a notice of appeal on November 9, 1988. Id. at 989. On appeal, the plaintiffs argued that defendant s’ November 9, 1988 notice of appeal was untimely because it was not filed within thirty days of the court’s July 17 , 1987 O rder. T he First Circuit disagreed , holding that by granting defendants ’ motion for
reconsideration in its October 11 , 1988 O rder, the district court impliedly invalidated the July 17, 1987 O rder and O pinion and resuscitated the appellants ’ origina l, timely, Rule 59(e) motion. Id. at 990. As such, th e denial of that motion was not final until the O rder and O pinion was entered on the docket on October 11 , 1988 , triggering a new thirty

- day appeal period which concluded on November 10

. Id

. The inst ant case follows a similar factual path as Jusino . Murray’s ability to appeal hinges on the timeliness of his original Rule 59(e) motion, filed on December 21,

2 At th e time of Jusino , a Rule 59(e) motion had to be filed within ten days of the filing of the judgment it sought reconsideration of

. Fed. R. Civ. P. 59(e) (1987). The ten days included only working days and di d not include the day judgment wa s en tered. Fed. R. Civ. P. 6(a) (1987). In 2009 , the Rules were amended so that Rule 59 (e) provide d for a 28

- day filing period

. See Fed. R. Civ. P. 59(e) (2009). The amendment s also altered Rule 6(a) t o “ count every day, including intermediate Saturday s, S undays, and legal holidays .” Fed. R. Civ. P. 6(a). 3 Appellants’ motion for reconsideration was granted in an Order and Opinion dated October 7, 1988 ; however, it was not filed until October 11.7

2010. Similar to the defendants in Jusino , whose timely Rule 59(e) motion was prejudiced by a clerical error , Murray’s Rule 59(e) motion was timely, but mistakenly
entered in the docke t a day late . As a result , Murray’s Rule 59(e) motion was denied d ue, in part, to timeliness , in the District Court’s February 14, 2011 O rder and O pinion. Furthermo re, like the appellant s in Jusino , Murray requested reconsideration via his February 23, 2011 letter, and was granted reconsideration in the March 9, 2011 O rder and
O pinion. Id. As such, the March 9, 2011 O rder and O pinion served as the final judgment

on Murray’s original Rule 59(e) motion. Therefore, the March 9, 2011 O rder and
O pinion served to impliedly in validate the February 14, 2011 O rder and O pinion, thus triggering a new thirty

- day appeal period , ending on April 8, 2011. Therefore, Murray’s
appe al , filed on April 7, 2011, was timely, and we have jurisdicti on over it pursuant to 28 U.S.C. § 1291.
B . The Merits of Murray’s Claims On a motion for summary judgment, we shall affirm the granted motion so long as the evidence demonstrates “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(a). However, we must view all facts and inferences in a light favorable to the n on - moving party

. Spence v. ESAB Group, Inc. , 623 F.3d 212 , 216 (3d Cir. 2010 )

. We exercise plenary review over the District Court’s decision

. Lizardo v. United States , 619 F.3d 273, 276 (3d Cir. 2010). In order to establish a prima facie case for discriminatory hiring practices , a plaintiff must show:8

( i ) that he belongs to a racial minority; ( ii ) that he applied and was qualified for a job for which the employer was seeking applicants; ( iii ) that, despite his qualifications, he was rejected ; and ( iv ) that, after his rejection, the position remained open an d the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). In the instant case, we agree with the District Court that M urray does not satisfy the second element listed above , as he never completed the application process

. 4
We have held that failure to formally apply for a job will not automatically bar a plaintiff from establishing a prima facie case for discriminatory hiring

. EEOC v. Metal
Serv. Co. , 892 F.2d 34 1, 348 (3d Cir. 1990)

. H owever , if the plaintiff did not apply, he must show that he made every reasonable effort to convey his interest in the job to his employer, Id. , he was deterred from applying by the employer’s discriminatory practices
and would ha ve applied for the position but for those practices, or he had a genuine and real interest in the position but reasonably believed that a formal application would be futile. Newark Branch, NAACP v. Town of Harrison , 907 F.2d 1408 , 1415 (3d Cir. 1990).
Mur ray contends that he conveyed his interest in the BDCI positions because he submitted his resume to and was in contact with WPG and BDCI personal. These actions do not satisfy the reasonableness standard established in EEOC v. Metal Service

4 Though BDCI argues this issue is collaterally e stopped b y a New Jersey s tate c ourt decision finding that Murray did not apply for any of the positions , see App. 204

- 06; Murray v. Honickman d/b/a Beverage Distribution Center, Inc., et al. , Superior Court of New Jersey, Law Division, Burlington County Docket No. BU R

- L

- 01998

- 07, we need not address this argument, as we have made our own independent determination that Murray did not complete the application process.9

Co mpany . In t hat case, the plaintiffs did everything reasonably possible to convey their interest in applying for a job by “follow [ing] precisely the procedure established by [the employer] for how a person applies for a job at the company.” Metal Serv. , 892 F.2d at
3 49. Murray, on the other hand, submitted his resume to WPG/BDCI on January 8, 2007, but refused to complete the assessment BDCI required of its applicants. Murray subsequently refused to submit his material to WPG for a similar position, despite the fact that Stanley informed him that he would be given a full chance to appl y if he contacted WPG recruiter Edelman. Edelman even tried to reach out to Murray, and he, yet again, refused to partake in the required assessment. Additionally, Murray never submit ted his resume for subsequent openings once BDCI hired Source One to handle the recruiting of applicants. The refore, Murray failed to manifest the ultimate indicium of

conv eying one’s interest in an open position : completing the company’s processes requir ed for consideration. See id

. Murray’s arguments on this point are meritless. Murray contends: 1) it would have been a “futile gesture” to continue to apply to BDCI; 2) he had previously showed interest and applied for a position at BDCI, and therefore BDCI should have kept his application and considered him every time a position, for which he qualified, opened; and 3) WPG and Source One were unlicensed. Whether WPG and Source One were licensed or not has no bearing on whether BDCI discriminated against Murray in the hiring process. As for Murray’s “futile gesture” argument, nothing in the factual record indicates that Murray applying to BDCI would have be en futile. In contrast, BDCI and WPG personnel repeatedly encouraged Murray to apply for the open positions through10

the processes they had set in place. Lastly, there is no basis whatsoever for Murray to argue that his resume should be saved and considered for every subsequent opening he qualifies for. A company is not required to look at every quali fied applicant they have ever had for open positions. Such a burden would lead nearly every company to be liable to suit for discriminatory hiring practices whenever a prior applicant was not considered. As such, Murray’s arguments fail and he cannot est ablish a prima facie case of discriminatory hiring. As the District Court recognized, Murray’s retaliation and negligence claims fail for the same reason. See Murray v. Beverage Distrib

. C t r . , 757 F. Supp. 2d 480, 488

- 89 (D.N.J. 2010). Viewing all facts and making all inferences in a light most favorable to Murray , t here is no genuine dispute as to any material fact. Accordingly, BDCI is entitled to judgment as a matter of law.
III . Conclusion For the reasons discussed above, we will affirm the decisi ons of the District Court.