Jacob G. Marley v. CORT FURNITURE RENTAL CORPORATION On Appeal from the United States District Court…

NOT PRECEDENTIAL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

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We have jurisdiction over this appeal pursuant to 281
U.S.C. § 1291.
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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

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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

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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

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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

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