The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on defendant's motion for summary judgment on plaintiff's claims of discrimination because of his race.*fn1 For the reasons expressed below, defendant's motion will be granted.
Plaintiff, Jacob G. Marley, was employed by defendant, CORT Furniture Rental, from October 2004 until November 12, 2006, when he took a leave of absence from which he never returned. During his employment with CORT, Marley served as a delivery manager (i.e., driver), an inventory control clerk ("ICC"), and warehouseman. As a delivery manager, Marley loaded delivery trucks with furniture and then delivered the furniture to customers. In his role as ICC, Marley kept track of CORT's inventory of furniture by using a scanning gun to perform "cycle counts" of the furniture inventory. As a warehouseman, Marley was responsible for locating specific pieces of furniture that had been rented or sold to a customer.
Marley, who came to this country from Liberia in 1998, claims that he was denied sales and management level positions, for which he applied and was qualified, due to his accent. As a result of this discrimination, Marley claims that CORT violated his rights under 42 U.S.C. § 1981 and New Jersey's Law Against Discrimination. CORT denies these claims, and has filed a motion for summary judgment. Marley opposes CORT's motion.
Plaintiff has brought his claims pursuant to 42 U.S.C. § 1981, as well as pursuant to New Jersey state law. This Court has jurisdiction over plaintiff's federal claim under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiff's state law claim under 28 U.S.C. § 1367.
B. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Marley claims that he was denied three promotions based on his accent*fn2 : (1) executive sales, (2) retail sales, and (3) assistant distribution manager.*fn3 In order to establish a prima facie case for failure to promote under § 1981 or the NJLAD*fn4 , a plaintiff has the initial burden of proving that: (1) he belongs to a protected category; (2) he applied for and was qualified for a job in an available position; (3) was rejected; (4) and, after the rejection, the position remained open and the employer continued to seek applications from persons of plaintiff's qualifications for the position. Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997). Once a plaintiff meets his prima facie case, there are two methods by which a plaintiff can prove his claim---through either direct or circumstantial evidence. If a plaintiff has direct evidence that an impermissible criterion was a substantial motivating factor in the decision to deny him a promotion, it is deemed a "mixed-motive" case, and the ...