Massey v. Borough of Bergenfield - Employment Discrimination Appeal

U.S. C OURT OF A PPEALS FOR THE T HIRD C IRCUI T No. 24-2761 C HRIS TOPHER G. M ASSE Y, A PPEL LAN T v. B OROUGH OF B ERGEN FIE LD; A RVIN A MATOR IO; H ERNANDE Z R IV ERA; O RA K ORN B LUTH; R AF AEL M A RTE; B UDDY D EAUNA __________________ ___________ Appeal from the U.S. District Court, D. N.J. Judge Jamel K. Semper, No. 2:20- cv -01942 Before: C HAGAR ES, Chief Judge, B OVE and S CIR ICA, Circuit Judges Argued Oct. 27, 2025; Decided Ma r. 6, 2026 __________________ __________ O PINIO N OF TH E C OURT B OVE, Cir cuit Judge. Plaintiff Christopher Massey is a white male who ser ved for decades in the Borough of Bergenfield’ s Police Department. He rose to the rank of Deputy Chief and was acting as the Departm ent ’ s Officer In Charge in mid -2019. Around that ti me, t he Borough denied Plaintiff a promoti on to the Chief position in f avor of Mustafa Rabboh, a n Arab -Muslim male with the rank of Captain. In response, P laintiff brought disc rimination cl aims under stat e

2 and federal law against Bergenfield and the five members of Bergenfield’ s Council who voted for Rabb oh. Following discovery, the District Court granted Defendants ’ summary judgment motion in its entirety. Central to this case is the heightened burden foisted upon Plaintiff under New Jersey law, w hich is known as the “Background Circumst ances Rule.” Derived from abro gated opinions by federal courts other tha n our own, New Jersey ’ s version of the Rule requires a plai ntiff who is not in th e “minority” to “ show that he has be en victimiz ed by an unusual employer who discrimi nates against the majority. ” Ericks on v. Marsh & McLennan C o., 569 A.2d 793, 799 (N.J. 1990). 1 In a decision issued after this appeal was fully briefed, the U.S. Supreme Court unanim ously str uck down the Background Circumst ances Rule for purposes of litigatio n under Title VII of the Civil Rights Act of 1964. Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2 025). When a fede ral court is asked to pass u pon an unreso lved state - law matter, o ur task is to predict how the highest court of that state would decide the relevant legal issue. That is our j ob in this case. Although the Supreme Court of New J ersey has not yet had occasion to address Ames, we predict that the c ourt would rely on Ames to conclude that the St ate’s Backgrou nd Circumstances Rule no longer has a permissib le role to play in litigation under New Jersey’s Law A gainst Discriminati on (NJLAD). The Rule is incompatible with the operative text of the NJLAD, which is identical to the pertinent language from Title VII. Both statutes extend prot ections to “any”— an d, 1 Unless ot herwise indi cated, case quotation s omit all in ternal citations, quotation marks, foot notes, alterations, an d subsequent history.

3 therefore, all—individuals. The lang uage appli es regardless of supposed membership in a majority or minori ty group. These considerations are reinforced by the fac t that the Rule ’s vagueness leaves it susceptible to arbitrar y applications and inconsistent results, as we pointed out when we rejected the federal version long ag o. See Iad imarco v. R unyon, 190 F.3d 151, 158- 59 (3d Cir. 1999). After rem oving the Background Circumstan ces Rule from the equation, and upon de novo review of Defendants ’ summary judgment motion, there are genuine d isputes concerning mat erial fact s that arise from Plaintiff ’ s direct and circumstantial evidence of discrimi nation. Defendants conceded in their su mmary judgment motion that t hey “considered Rabboh ’ s race” when decidi ng on the pr omotion. JA 79. Plaintiff testified that Bergenfield ’ s Boro ugh Administrator told him the decision was “all about race.” JA 475. Based on this evi dence, and mo re, Plain tiff was entitle d to a trial. Accordingly, we will revers e in pa rt, affirm in part, and remand for procee dings consistent with this opinio n. I. We summarize the den se record and p rocedural history of the matter, drawing all reasonable inferen ces in Plain tiff ’ s favor. See, e.g., Jorjani v. N.J. Inst. of Tech., 151 F.4th 135, 140 n.5 (3d Cir. 2025). A. The Borough of Be rgenfield ha s a Mayor, a Borough Administrator, a six - member Co uncil, and a Police Depart ment with over 40 officers. Department pr omotion s — including the

4 promotion to Chie f of Police — are decided by a majority vote of the Council. The M ayor breaks any ties. The Council consists of six elected indivi duals. During the relevant period, the Counci lmembers were Arvin Amatorio, Hernando Rivera, Bud dy Deauna, Rafa e l Marte, Ora Kornbluth, and Thomas Lodato. Defendants are Bergenfield and the five Councilmembers who voted against Plaintiff’ s promotion i n 2019: Amatorio, De auna, Kornbluth, Marte, a nd Rivera. For si mplicity’s s ake, althou gh some Defendants and other relevant individuals hav e changed roles since the operative events, we use jo b titles in this opinion t o refer to the people who held those roles in 2019. Plaintiff is a white male who began his service at t he Bergenfield Police Department in 1995. Musta fa Rabboh, who received the promotion at issue, is describ ed in the record a s an “Arab,” or “Palestinian,” of Muslim faith. See, e.g., JA 2, 39 2, 415, 475. He joined the Department via a lateral transfer eight years later in 20 03. Al though Rabbo h eventu ally obtained the rank of Captain, he was also the subject of seve n complaints to the Department ’ s Inter nal Affairs Bureau and received a four - day disciplinary suspen sion based on one of those complai nts. Between 2003 and 2015, Plaint iff obtained pr omotions through the ranks of Sergeant, Lieutenant, and Captain. I n 2015, Bergenfield ’ s Council voted to pro mote Cathy Madal one to be the Chief of the Department inste ad of Plaintiff. Following that decisi on, the Counc il mad e Plaintiff the Department’s Deputy Chief. In that role, Plaintiff was responsible for “three - quarters to 90 percent o f the department on a day -to-day basis.” JA 451. In February 2019, when Madalone had to miss work for medical reas ons, sh e named Plaintiff the Department ’ s Officer In Charge. Madalone

5 announced her retireme nt months later, and Pla intiff continued to act as the Departme nt’s Officer I n Charge while the Council searched for Madalo ne’s replaceme nt. At a meeting of the Council ’ s Po lice Committe e on June 6, 2019, the Borough Administrator inform ed Plaintiff and Rabboh that the Council would intervie w both of them for the Chief position. The Mayor and Defendants A matorio, Rivera, and Kornbluth were present at the meeting. During t he meeting, Defendant Rivera asked Plai ntiff to identify office r candidates that the Department was consider ing hiring at the time, including their genders an d what t he cand idates “look[ed] like.” JA 460. The Mayor unders tood that D efendant Rivera asked the question because he wanted to help a female associate get the job instead. After Pl aintiff resisted, Defendant Rivera told Plaintiff that he did not “look like the people in the town.” J A 460. On August 6, 2019, the Mayor, the Borough Administrator, a nd the Council inte rviewed Plaint iff and Rabboh for the Chief position in a cl osed executive sessi on. The individual Defen dants were “p laying o n their phon es” during Plaintiff’ s interview. JA 473. Defendant Mart e arrived approximately 30 minutes late. In an in formal vote following the interviews, Defendants Amat orio, Deauna, Marte, and Rivera v oted for Rabboh. Toward the en d of the c losed session, Councilman Lodato e xpressed con cern about the decision and predict ed that the Council ’ s choice was “definitely going to cause a lawsuit.” JA 694. T he meeting minutes are less colorful. According to tha t document, the Mayor and the Coun cil “ agreed that the two ca ndidates are very qualified for the positio n” and “great,” b ut that Rabboh “is the better candidate for the position.” JA 297.

6 Following the informal vote, the Borough Administrator told Pla intiff that the Counc il “screwed ove r” Plaintiff by promoting Rabboh. JA 704. The Borough Administrator indicate d that the Council’ s d ecision was “all about race.” JA 475. During a de position, D efendant Marte agreed that it was “im portant to have a minority depa rtment head” in Bergenfield. J A 601. Defendant Deauna testifie d that he believed Rabboh would be a better Chief, in part, because “he’s a minority.” JA 611. On August 20, 2019, the Council con vened public proceedings to formal ly vote Rabboh in a s Chief of the Department. The Mayor, Boroug h Administr ator, and all six members of the Council were present, though Council man Lodato arrived approxi mately 45 minut es late. At the meeting, Defendant Kornbluth joined Defenda nts Amatorio, Deauna, Marte, and Rivera in v oting to promote Rabboh. Defendants contend tha t their votes we re based on non - discriminatory consid erations, including the candidate s’ qualifications, intervie w performance, and st rategic planning as well as asserted inter ests in continuity for the Chief pos ition and diversity. There is no disput e that diversity was a significant feature of remarks by public officia ls when Rabboh was sworn in. According to the minutes, while praisi ng Rabboh, Defendant Amatorio noted that “[t]his is a diverse town, audience, [and] council.” JA 3 37. Defendant Deauna stated t hat Rabboh would bring “under standing of the diversified community ” of Bergenfield to hi s new role. JA 337. Defendant M arte emphasized that “Berge nfield appointed the first female Polic e Chief in 2015, and now has appointed the first Muslim Police Chie f, only the second in the State of New Jersey.” JA 337. Defendant Rivera told the

7 group t hat he h oped to “continue d oing the right thi ng for th e diverse community in Bergenfield.” JA 3 37. B. In February 2020, Plai ntiff filed three claims alleging racial and religious discrimination in violat ion of the NJLAD, N.J. Stat. Ann. § 10:5- 12(a); 42 U.S.C. § 198 3 and the Equal Protection Clause; and 42 U.S.C. § 1981. Following discovery and a period of uns uccessful settlement discussions, Defendants mo ved for su mmary judgment in December 2023. The District Court granted the motion in September 2 024. With respe ct to Pl aintiff ’ s NJLAD claim, the District Court found that Plaintiff had not met the requirements of the B ackground Circum stances Rule. The court also concluded that Plaintiff had failed to adequatel y rebut Defendants ’ justifications for the ir promotion decision. The court granted s ummary j udgment on Plaintif f’ s § 19 83 claim by reasoning that employment - related claims for race discrimination cannot be brought under that sta tute. The court granted summary ju dgment o n the § 1 981 claim because the statute does not provid e for a private cause o f action. II. The District Court had jurisdictio n under 28 U.S.C. § 1331. We have juris diction under 28 U.S.C. § 1291. We review a District Court ’ s grant of s ummary judgment de novo. Jorjani, 151 F.4th at 140 n.5. A su mmary judgment movant mu st establish either of tw o “closely re lated” scenarios. Mall Chevrolet, Inc. v. Gen. Motors LLC, 99 F.4th 622, 630 (3d Cir. 2024). “[U] nder the sta ndard approach, the

8 moving party may produce material facts, established as genuinely undisputed, t hat entitle it to judgme nt as a matter of law. ” Id. Alternatively, the movant “ may instead demonstra te that the nonmoving p arty has n ot made a showing suffic ient to establish the existence of an element essential to that party ’s case. . . on which that party will bear the bur den of proof at trial.” Id.; see also Parker v. N.J. Motor Vehicle Comm ’n, 1 58 F.4th 470, 478 (3d Cir. 2025). III. Plaintiff is entitled to a trial on his NJLAD cl aim. The principal driver of that outcome is Ames. W hereas the Dist rict Court faithfu lly applied binding pre- A mes authorities relating to the NJLAD, w e must address the im plications of the U.S. Supreme Court ’s inter vening analy sis of ide ntical language from Title VII. We predict th at the Suprem e Court of New Jersey would rely on Ames to put an end to New Jersey ’ s version of the Background Circum stances Rul e. Based on that holding, there are factual disp ute s on material issues that must be resolved at trial. Accordingly, we will reverse the District Court’ s summary judgment ruling on Plaintiff ’ s NJLAD claim. A. We start by setting th e scene. Since the 1970s, Ne w Jersey has applied the three -step McDonnell Douglas framework to NJLAD claims. In 199 0, t he S upreme Court of New Jersey a dopted other federal c ourts ’ version of the Background Circumstances Rule. In 1999, w e declined to adopt the Rule for purposes of Title VII. Things went q uiet on this front for a while. At least in the Third Circuit and New Jersey. Then, last summer in Ames, the Supreme Cour t

9 rejected the Title VII version of the Rule. Here are the relevant details: New Jersey courts started to apply t he McDonnell Douglas framework in 1978. Peper v. Princeton Univ. Bd. o f Trs., 3 89 A.2d 4 65, 479 (N.J. 1978) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 -06 (1973)). In Erickson v. Marsh & McLennan Co., the Supreme Court of New Jersey followed f ederal law from outside this Ci rcuit and adopted the Background Circumstan ces Rule as the standard for a prima facie c as e in NJLAD “reverse-discrimination” claims. 569 A. 2d at 79 9. The Rule “modifie d the first prong of the McDonnell Dou glas standard to require the plaintiff to show that he has been victimized by an unusu al employer who discriminates against the majority. ” Id. The Erickson court explained that N ew Jersey ’s Rule is “ derived from its federal counterpart, ” and “agr ee[d]” with a decisio n of New Jers ey ’s Appellate Division adopting the Sixt h Circuit ’s then-existing version of the Rule. Id. (citing Murr ay v. Thistledown Racing Club Inc., 770 F.2d 6 3, 67 (6th Cir. 19 85)). As additional support, t he Supreme Court of New Jer sey cited five addition al federal decisions appl ying the Bac kground Circum stance s Rule in Title VII cases. Id. Almost 10 years after Erickson, we depar ted from several other Circuits and declined to “cram” the Background Circumstances Rule in to Title VII. Iadimarco, 190 F.3d at 158. We found the Rule “problem atic and unnecessary,” in part because it “raise [d] the bar” for “rever se-discriminat ion” plaintiffs in a manner that is inconsis tent with the text of Title VII as interpreted by th e Supreme Court. I d. at 159, 161. In Ames, the U.S. Supreme Court rejected th e federal version of the B ackground Circumstances Rule. The Ames

10 Court unanimously hel d that the Rule “ i s not consistent wi th Title VII ’ s text or our case law constr uing the statute. ” 605 U.S. at 306. The statut ory text “draw s no disti nctions between majority- group plaintif fs and minority - group plaintiffs. ” Id. at 309. Thus, “the stand ard for pro ving disparate treatment under Title VII does not vary based on whe ther or no t the plaintiff is a member of a majority group. ” Id. at 310. The Rule also “ignores ” the U.S. S upreme Court’s “ instruction to av oid inflexible applications of McDonnell Do uglas ’s first prong ” by “uniformly subjecting a ll major ity- group plaint iffs to the same, highly specific eviden tiary stand ard in every c ase.” Id. at 310 - 11. B. The question, then, is whether New Jersey ’ s Background Circumstances Rule is still viable after Ames. The Supreme Court of Ne w Jersey has not had a n opportunity to weigh in. New Jersey’ s intermediate appellat e courts and trial courts have not been f ree to do so be cause of Erickson. See State v. DeRosa, 2019 WL 2869611, at *6 (N.J. App. Div. 2019). S o we are left to perfor m the “ delicate task ” of predicting how the S upreme Court of New Jersey “ would interpret and apply the [NJLAD] i n the aftermath” of the Supreme Court ’ s recent decision. McK enna v. Pac. Rail Serv., 32 F.3d 820, 825 (3d Cir. 1994). B ased on New Jersey’ s interpretative methodology and the operat ive text of the NJLAD, we predict that the Supreme Court of New Jersey would jettison the state -law version of the Rule. When considering how t he Supreme Court of New Jersey would rea ct to Ames, we are mindful t hat the court has “ looked to federal la w as a key source of interpreti ve authority.” Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903,

11 906 (N.J. 19 90). Based on that practi ce w e p redict, simila r to our predictions in other cases, that the Supre me Court of N ew Jersey would find the analysis in Ames co mpelling whe n interpreting the NJLAD. See Taxman v. Bd. of Educ. of Twp. of Piscataway, 91 F.3d 1547, 1565 (3d Cir. 1996) (en banc) (“[W] e predict that t he New Jersey Sup reme Court would follow the analytical dir ective of [the Su preme Court in ] Weber and Joh nson. ”); see als o Zanetich v. Wal - Mart Stores E., Inc., 123 F.4th 128, 141 (3d Cir. 20 24) (reasoning t hat a “ predictive judgment is informed, in part, by federal ca selaw ”); Tatarunas v. Progressive Cas. I ns. Co., 2025 WL 2673991, ¶¶ 28-29 (Ohio App. 8 th 2025) (finding that Am es abrogated state -la w Background Circumsta nces Rule). This follows from the fact that both courts apply the same “[b]asic techniq ues of statutory int erpretation.” New Jersey v. Grate, 106 A.3d 466, 47 3 (N.J. 2015). P lain meaning of unambi guous statuto ry text controls. See, e.g., Crisi tello v. St. Theresa Sc h., 29 9 A.3d 781, 792 (N.J. 2023). The pertine nt text from Title VII and the NJL AD is identica l. Both statutes prohibit discriminatio n against “any ” pers on. 42 U.S.C. § 2000e-2(a)(1); N.J. Stat. Ann. § 10:5- 12(a). The Supreme Court of New Jer sey “ has been scrupulous in its insist ence that the Law Against Discrimination be applied to t he full extent of its facial coverage.” Nini v. Mercer Cnty. Cmty. Coll., 995 A.2 d 1094, 1100 (N.J. 2010). The facial c overage of the NJLAD leaves no roo m for the Backgr ound Circumst ances Rule. When making Erie predictions, we also con sider the “ policy of the statute” as articulated b y a state’s legislature a nd apex court. Wayne Moving & Storage of New Jersey, Inc. v. Sch. Dist. of Philadelphia, 625 F.3d 14 8, 155 (3d Cir. 2010). The Supreme Co urt of New Jersey has repea tedly explained

12 that the NJLAD “ ban[s] employment discrimination” a nd seeks to achieve “noth ing less than the era dication of t he cancer of discrimination in th e workplace. ” Bergen Com. Bank v. Sisler, 723 A.2d 944, 949 (N.J. 1999). Banning and eradication are absolut e, categorical te rms re flecting resolve and focused intention to eliminating dis crimination. And “[e] liminating racial discriminatio n means eliminating all of it.” Students for Fair Admissions, In c. v. Pre sident & Fell ows of Harvard Col l., 600 U.S. 181, 206 (2023). In Title VII, “ Congress left no room for courts to impose special requirements on major ity - group plaintiffs alone. ” Ames, 6 05 U.S. at 310. New Jersey’s legislature did the same thing b y adopting language that is, as relevant here, a mirror image. Finally, we find it relevant that the Supreme Court of New Jersey has on other occasions looked to the “federal experience ” to “ a ssure some reasonable de gree of s ymmetry and uniformity. ” Grig oletti, 570 A. 2 d at 912. Since Eri ckson was decided in 1990, the federal ex perience with the Background Circumst ances Rule was hardly positi ve. In Iadimarco, with the benefit of more data, we observed tha t “ application and interpretation ” of the R ul e had already “ proven difficult. ” 190 F.3d at 160. We charac terized the Rule as “problematic,” “irr emediably vague,” “amorphous,” “ ill- defined,” and “unneces sary.” Id. at 161, 1 63. For all of these reas ons, we are confide nt that the Supreme Court of New Jersey would once aga in conclude that “ it is in the best interests of everyone co ncerned to have some uniformity in the law” and thus interpret the identical text in the NJLAD in the sam e manner that the U.S. Supreme Court interpreted Title VII. Peper, 38 9 A.2d at 47 8. We therefo re predict that the Supreme Court of N ew Jersey would stri ke

13 down th e Background Circumstan ces Rule much in the same way that the Ames Court did. C. W e now turn to the rec ord. The parties agreed that the McDonnell Douglas framework applied to Def endants ’ motion for summary judgment. The District Cour t obliged. McDonnell Douglas is an “evidentiar y edifice constructed by the Supreme C ourt.” M arzano v. Comput. Sci. Corp. Inc., 91 F.3d 497, 510 (3d Cir. 1996). “[C]onfusion arises” when “ attempting to apply the McD onnell Douglas burden-shifting frame work” in “reverse discrimination” ca ses. Iadimarco, 190 F.3d at 158. As a result, we do not env y the District Court ’ s assign ment, and our c onclusion s below in n o way question the court ’ s characteristic ally thoughtful approac h to the job at hand. 1. Setting aside the Background Circumstances Rule, as we must, the prima facie case for an NJ LAD failure-to- promote claim has three require ments: (1) t he plaintiff was qualified for the promo tion; (2) he was denie d the promoti on; and (3) the position was awarded to an applicant with simi lar or lesser qualifications. See, e.g., Andersen v. Exxon Co., U.S.A., 446 A.2d 486, 490 -91 (N.J. 1982); see also Iadim arco, 190 F.3d at 161 (reasoning that “all that sho uld be requi red” in a “reverse-discriminati on” case is “ suffic ient evidence to allow a fact finder to conclude that the em ployer is treating so me peo ple less favorably than others based upon a trait t hat is protected”). At s ummary judg ment, this is at most a “slight ” evidentiary burden. Zive v. Stanley Roberts, Inc., 867 A.2d

14 1133, 1139 (N.J. 2005). The prima facie burden is “no longer relevant” after de fendants seek to articulate no n -discriminatory reasons for an e mployment action. S ee Hopp v. City of Pittsburgh, 194 F.3d 4 34, 439 (3d Cir. 1 999) (Alito, J.). Defendants acknowle dge that Plaintiff “was a qualified candidate for the positi on of Chief.” Br. 1 4. He was a white male who served t he Department since 1995 and asce nded to the roles of Deputy Chief and Officer In Charge. Some in Bergenfield’ s leadersh ip supported Plaintiff’s pursuit of the Chief promotion when the job was previou sly vacant in 20 15. I t is “certainly re levant,” though not by itself sufficient, that the five individual Defendant s who v oted to promote Rabboh are members o f minority g roups. I adimarco, 190 F.3d at 156. Defendants conceded i n their su mmary judgment motion that they “considered Rabboh ’ s ra ce and religion” when making th at decision. JA 7 9. After par ticipating in the interviews with the Co uncil, t he Mayor believe d that Plaintiff’ s resume was “overwhel mingly better,” Rabboh was “definitely under- qualified,” and the selection process w as not “fair.” JA 712- 13, 730. Council man Lodato testified that he was “sure” Plaintiff was “more qu alified” tha n Rabboh. JA 641. Lodato believed the Council’s decision was “wron g.” JA 641, 713. Defendants’ main response is that Rabboh was also qualified. That is not f or us to de cide and — ev en if true, which it may well be — not su fficient to de feat Plaint iff ’s pr ima facie showing. “[O] nly the plain tiff ’ s evide nce should be considered. ” Zive, 867 A.2d at 1 144. We have recited here some examples of the types of e vidence that Plaintiff ob tained during discovery to support the inference th at “ discriminati on could be a reason for the empl oyer ’ s action.” Id. at 1139. It

15 will be up to a jury t o sort that out, but n o thing more was required of Plaintiff at the prima facie stag e. 2. By making a prima f acie showing o f discrimination, Plaintiff earned “the right, as in a pok er gam e, to require the employer to show its hand — that is, to offer an explanation other than discrimina tion why the employee suffered an adverse employment ac tion.” Marzano, 9 1 F.3d at 508. Defendants proffered several overlap ping just ifications for the decision to promote Rabboh, whic h fit into five categories: (a) qualifications; (b) interview performance; (c) long-term strategy; (d) continuity; and (e) diversity. To defeat the summary judgment moti on, Plaintiff had to come forward with eviden ce suffici ent to es tablish a reasonable inference that Defendants ’ justifications were pretextual. See Sisler, 723 A.2d at 955. Because “ we may not req uire affirmative evidence of discriminatio n in addition to proof of pretext,” Plaintiff had two options. Kautz v. Met - Pro Co rp., 412 F.3d 463, 467 (3d Cir. 2005). T he evidence had to permit a factfinder to reas onably “ (1) disbelieve the employer ’ s articulated legitimate reasons; or (2) believe that an invidio us discriminatory reason was more likel y than not a motivatin g or determinative cause of the employer ’ s action. ” Zive, 867 A.2d at 1144 (quoting Fuentes v. Perskie, 32 F. 3d 759, 764 (3d Cir. 1994)). Plaintiff did both. He met his burden of putting fo rth evidence that Defen dants ’ j ustifications were false, as discussed immediately below, and that discrimination was a motivating factor in the decision, as discussed in the next section.

16 a. Defendants concede that Plaintiff was qua lified for the promotion, but they contend that Rabboh w as “legitimately qualified.” Br. 19-2 0. Defendants cite Rabboh’s r apid promotions during 16 years of service, e xceptional s cores on civil service examina tions, and strategic v ision for the jo b. As noted in the analysis of Plaintiff ’s prim a facie case, the Mayor and Councilm an Lodato both testified in depositio ns that Plaintiff was more qualified than Rabboh. Their conclusion is consiste nt with, among ot her things, Rabboh’ s record of Internal Affairs complaint s and discipline. An employer cannot prevai l under McDo nnell Douglas “ merely by asserting that the responsible hirin g official selected the man or woman who was the right person for the job.” Iadimarco, 190 F.3d at 166. D efendants’ similar justific ation is e qually unpersuasive under the NJLAD. b. Defendants s eek to justify Rabboh ’ s promoti on based on the quality of the ca ndidates’ interviews. T he problem fo r Defendants is that Councilman Lodato did not recall “anythin g coming out in the interviews which would have persuaded anyone to vote against” Plaintiff. JA 642. In a ddition, Plaintiff testified that the partici pants in his in terview w ere not attentive and “playin g on their phones.” JA 473. After the interview, the Borough Admini strator told Plaintiff that he “crushed it” and “it ’ s a slam dunk.” JA 474. Plainly, there are material fact disputes with respect to this justification. Defendants contend that Rabboh did a bette r job of positioning himself during the int erview by discussing

17 community ties and a strategy of co mmunity policing. But Plaintiff testified that he, too, focused on “ quality of life i ssues and the community policing” durin g his interview. JA 467. Plaintiff also described decades of me aningful engageme nt with the Bergenfield community durin g his de position. Da ting back to 2003, Plaint iff helped introduce po lice officers to students at four Ber genfield ele mentary sc hools before th e students started to parti cipate in the DA RE Program. Around 2009, Plaintiff started to act as t he liaiso n between the Department and all the schools in Ber genfield. After Plaintif f was promoted to Captain in 2012, he continued to act as a “hands- on guy with th e schools.” JA 44 8. Plaintiff regu larly engaged with the Board of Education, and he provided strategic advice and counseling to ad ministrat ors and teachers based on violent incide nts at schools out side of New Jerse y. Collectively, this evide nce established m aterial factual disputes regarding the c andidates ’ emphasis on the community during the interviews. c. Defendants argue that their decision was also based on Rabboh’ s long -term strategy, including a w ritten “Five-Y ear P lan” that he present ed during his intervie w. Br. 3, 19. Councilman Lodato testified that Ra bboh ’ s Plan included “goals and objectives” that were “si milar to the ideas” that Plaintiff “expressed ve rbally” during his inte rview. JA 639. The re were also factual disputes regarding w hether and to wha t extent Rabboh modifie d his Plan after obtain ing the version that Madalone had used to obtain the C hief pro motion in 2015. In addition to the evidence that Plaint iff and Rabboh addres sed similar concepts and plans duri ng their interviews, t he

18 available inference of plagiarism by Rabboh suppor ted Plaintiff’s position rega rding pretext. d. Defendants argue that Rabboh was promoted because he had the “ability to provide lon g - term continuity to t he BPD,” i.e., Plaintiff wa s eligible to retire before Rabboh. Br. 19. Viewin g the evidence in the light most favo rable to Plaintiff, t he record does not sustain Defendants’ argume nt that this was a differentiatin g characteristic. Councilman Lodato testified that P laintiff and Rabboh each “gave a similar commitment ” to serve at least five years as Chief. JA 637. Plaintiff testifie d that he told the Coun cil during his interview that he planned to work a t the Depart ment for “at least” five more years, and his preparatory notes from the meeting corr oborated that testimony. JA 471. The Borough Administrato r explained that Plaint iff “always said that he would work until 30” years of completed service to the Department— i.e., until 2025, which was almost 5.5 ye ars after the interview — and tha t Plaintiff was “pretty clear” about that with the Council. JA 697. Thus, there is e vidence in the record that would permit a factfinder t o reject Def endants ’ a ssertion that they promoted Rabboh base d on concern s about con tinuity in the Chief position. e. Defendants point to se veral considerations r elating to diversity. Viewed individually o r together, Plaintiff came forward with enough e vidence to defeat summary judgment on these issues.

19 Counsel’ s n aked i nvocation of a diversity pre ference is not a legitimate, non - d iscriminator y reason for an employment decision. See, e.g., Fis her v. Univ. of Tex. at Austin, 570 U.S. 297, 311 (2013) (confir ming that “outright racial balancing” is “patently unconstitutional”); Freeman v. Pitts, 503 U.S. 46 7, 494 (1992) (“Racial balance is not to be achie ved for its own sake.”); Wygant v. Jac kson Bd. of Educ., 4 76 U.S. 267, 27 4 (1986) (“This Court never has held that societ al discrimination alone is sufficient to j ustify a racial classific ation.”); Lomack v. City of Newark, 463 F.3d 303, 311 (3d Cir. 2006). Thus, the references in Defendants ’ briefing to “[c]elebrating diversity” and a general desire to “promote persons who represent [Bergenfield’ s] div ersity” are insufficien t on their o wn to justify the decision to p romote Rabboh. Br. 16, 19. It will be up to the jur y to resolve the parties ’ dispute over the import of D efendants’ evidentia ry references to diversity, such as the comments at Rabboh’ s August 20, 2 019 swearing-in ceremony. Depending on credibility, context, and other evidence, jurors could cre dit Defendan ts ’ statements as innocuous or consistent with a defensible p olicy aim — even though the comments are not, on their own, a lawful race - neutral justi fication for a challenged employ ment action. On the other hand, we cannot rule out tha t jurors wil l regard Defendants’ uses of diversity terminology at Rabboh’s swearing in as “ co de word s” r eflecting disc riminatory intent. Abramson v. Willi am Paterson Coll. of N.J., 2 60 F.3d 26 5, 278 (3d Cir. 2001) (“[E]ven the use of ‘code words ’ such as ‘all of you’ and ‘ one of them ’ could be sufficient evidence from which a jury could find an intent to discrim inate. ”); Price v. Valvoline, L.L.C., 88 F.4th 1062, 1068 (5th Cir. 2023) (Ho, J., concurring in the ju dg ment); Hill v. Ross, 18 3 F.3d 586, 589 (7th Cir. 1999) (Easterbrook, J.) (concluding th at “ a trier of fact

20 might see ” defendants ’ invocation of a n unwritten pro cedural justification for an affirmative action plan “as nothing but a smokescreen for discri mination ”). That is wh y we have trials. Defendants argue that we are empowered to resolve thi s fact dispute in their favor based o n Bergenfield ’s alle ged “history of promoting Caucasian candidate s to high -level positions,” certain “ Co nsent Decrees” discussed below, and the Department’s “ Recruitment/Equal Em ployment Opp ortunity” Policy. Br. 5-6, 26. Not so. Defendants cite no evidence demo nstrating that they were aware of the his torical employment de cisions referenc e d by their counse l, many of which did n ot involve the Department. “[A] fact finder could also conclude that [Defendants] tried to manipulate the process to hire [Ra bboh] because [they] had already hired many Whi te supervisors. ” Iadimarco, 190 F.3d at 165. In any e vent, to “employ racial classifications to cure racial imbalance s,” a government m ust demonstrate that the imbalances resulted from “ prio r intentional discriminati on.” Lomack, 463 F.3d at 307 (emphasis added). Defendants do not suggest — much le ss substantiate— intention al discrimination in t he history the y invoke. As a conseque nce of ea ch of these things, Defe ndants ’ historical justification did not merit sum mary judgment. The record reveals next to nothing about th e Consent Decree s that Defendant s have invoked. The do cument s are no t in the appellate record, but we take judicial notice of public filings in NAACP v. Bergenfield, N o. 99 Civ. 5837 (D.N.J.), which is the case that gave rise to the Decrees in question. The NAACP initiated the case in 1999 b ased on allegatio ns of discrimination against black peo ple, which Bergenfield never conceded and the NA ACP was never required to prove. See

21 id. ECF No. 3. The fir st Consent Decree was entered in 200 0, and Bergenfield moved to terminate it in 2018 based on “substantial complianc e.” Id. ¶ 19; id. ECF No. 5- 1 at 4. In lieu of termination, the NAACP and Bergenfie ld entered into a second Consent Decree in February 2019. See i d. ECF No. 24. The second Decree required Be rgenfield to conduct “t argeted advertising” for each civil ser vice examinat ion for a position, “with a focus on African - American se gments” of Bergenfield and Englewood, New Jersey. Id. ¶ 2. Defendants have not explained how this litigation and the resulting Consent Decrees were relevant to Rabboh ’ s promot ion. Cf. Lomack, 463 F.3d at 310 (“Compliance w ith a consent decre e may certainly be a compelling interest. . . but only if the decree mandates the race - based policy at issue.”). Nor do Defen dants cite t o any evidence supporting their suggesti on that they relied upon these Conse nt Decrees during the sel ection process. We se e nothing in the record to cure either defect. Defendants’ invocation of t he Department ’ s “Recruitment/Equal Employmen t Opportun ity” P olicy is equally unavailing. JA 352. “[W] hile a valid affirmative action plan is consid ered nondiscriminat ory. . . an invalid affirmative action plan is discrimin atory.” Shea v. Kerry, 796 F.3d 42, 57 (D.C. Cir. 2015) (citing Taxman, 91 F.3d at 1567). A valid affirmative action plan must “co ntain as its pre mise a finding of racial imbalance and express the basis for that finding, set forth a goal for re mediating the imbalance, and prescribe some form o f standards by w hich the goal wi ll be achieved. ” Klawitter v. City of Trenton, 928 A.2d 900, 915 (N.J. App. Div. 2007). These “basic in gredients” are missi ng from the version of Bergenfield’ s Policy that is included in the record before us. Id.; see al so Schurr v. Res orts Int ’ l Hotel, Inc., 196 F.3d 486, 497 -98 (3d Cir. 1999). Thus, the record

22 does not sustain Defendants’ p osition that the Policy was part of a race-neutral justifi cation for Rabboh’s promotion. The relevance of t he Policy is subject to a dditional disputed factual questi ons. There is some fo rce to Plaintiff ’ s contention that the P olicy, on its face, did not apply to the promotion he sought. The Mayor believed th e Policy applied to hiring rather than promotions. There are several specif ic references in the Policy to the position of “ Police Officer,” b ut not to the Chief job. JA 352. P erhaps the Policy ’ s general references to “employ ment policies, practices and pr ocedures” and “selection of candidates” are broad enough to include filling the Department ’ s Chief position. JA 355 -56. We could only guess, however, because Def endants poi nt to no evidence in the record regarding the Policy ’ s scope or appl ication. Nor do Defendants cite evidence indicatin g that they were guided by the Policy in sel ecting Rabbo h. Suffice i t to say at th is point that the Policy does not bolster Defe ndants’ position in th is appeal. * * * Defendants offered a “ bagful” of justifications for the promotion decision. Fuentes, 32 F.3d at 764 n.7. Their bag is subject to numer ous “weaknesse s, implau sibilities, inconsistencies, incoh erencies, [and] contra dictions in the employer’ s proffered le gitimate reasons.” Id. at 765. For eac h type of justification, Plaintiff pointed to evi dence that wou ld permit a factfinder to “ reasonably. . . disbelieve the employer’ s articulated legitimate reason s.” Id. at 764 -65; see also Zive, 8 67 A.2d at 1144 - 46. Therefore, Plaintiff met his burden of establishing pretext.

23 3. Like federal la w, New Jersey law provides a second option for a plaintiff to make a pre - trial s howing of pretext, which overlaps significantly with the ulti mate burden in a discrimination case. S ee Zive, 8 67 A.2d at 1144-45; s ee also Willis v. UPMC Child.’ s Hos p. of Pitt sburgh, 808 F.3d 638, 645 (3d Cir. 2015). Specifically, the plaint iff must provide evidence to support a reasonable inference “t hat an invidi ous discriminatory reason was more likel y than not a motivatin g or determinative cause of the employer ’ s action.” Zive, 867 A.2d at 1144. Then, “at trial the p laintiff mus t convince the factfinder that not only was the emp loyer ’ s proffered reas on false, but the real reason was impermissib le discriminat ion. ” Willis, 808 F.3d at 645; see also Viscik v. Fowler Equi p. Co., 800 A.2d 826, 833-34 (N.J. 2002). Defendants’ co ncession that they “considered Rabboh ’ s race and religion” accomplished much on Plai ntiff ’ s behalf in opposing the sum mary judgment motion. JA 79. Defendants’ follow-up asser tion that “ r ace and religion were not the only factors” that t hey considered is beside the po int. JA 90. A t summary judgment, Plaintiff w as not req uired to es tablish that protected characteristics were “th e sole or exclusi ve consideration” in the p romotion decisio n. Meade v. T wp. of Livingston, 265 A.3d 148, 160 (N.J. 2021). T he question was whether there was eno ugh evidence to suppo rt a reasonable inference that race or religion “ma de a differe nce.” Id. There was more than enough. T he record co ntains both direct and circumstantial eviden ce of discriminat ion, including, as examples, the following dep osition testimo ny:

24 • Less than three months prior to the promotion decision, Defendant Rivera told Plaintiff, in Rabboh ’ s presence, that Plaintiff did not “look like the people i n the town.” JA 460. • After participating in t he interviews an d observing th e voting, the Borough Administrator tol d Plaintiff that the Council’ s promotion d ecision was “all ab out race.” JA 475. • Part of the reason th at Defendant Dea una preferred Rabboh was that “ he ’s a minority. ” JA 611. • D efendant Marte was asked during his de position if he “ believe[d] it ’ s important to ha ve a minority department head.” JA 601. He responded, “consid ering the demographic of the town, yes, it is impor tant.” JA 601. • The Borough Administ rator told Plaintiff that “Rabboh was promoted because he would have been the first Arab/M uslim chief of polic e in Bergen Cou nty.” J A 700-01. • The Borough Admini strator told Plaintiff that the Council “screwed over ” Plaintiff by promotin g Rabboh. JA 704. • Councilman Lodato was “upset” ab out the promotion decision and told the Council that it was “ definitely going to cause a la wsuit.” JA 693 -94. A factfinder could reasonably infer from this evidence, as well as the evidence descri bed above suppor ting the prima facie case, that race and religion made a difference in Defendant s ’

25 decision to promote Ra bboh. Therefore, Defendants wer e not entitled to summary ju dgment on Plaintif f’s NJLAD cla im. IV. Plaintiff is als o entitle d to a trial o n his § 19 83 claim alleging a violation of t he Equal Protection Clause. Section 1983 provides a mechanism for privat e actions to vindicate constitutional rights in employm ent settings. See, e.g., Starnes v. Butler Cnty. C t. of Co mmon Pleas, 50th Jud. Dist., 971 F.3d 416, 426 - 27 (3d Cir. 2020); Bradley v. Pittsburgh Bd. of Edu c., 913 F.2d 1 064, 10 78 - 79 (3d Cir. 1990). Williams v. Pennsylvania Hu m. Relatio ns Comm’n, 870 F.3d 294 (3d Cir. 2017) is not to the contr ary. In Williams, the § 1983 claim was “bas ed on violations” of Title VII and t he Americans With Disabilities Act ra ther t han the Constitut ion. See id. at 296. We characterized th at plaintiff ’s allegations a s involving “pure” sta tutory theories, and we declined to allow the plaintiff to ci rcumvent the “carefully crafted” pr ocedural requirements associate d with those statutes by relying on the express cause of action set forth in § 1983. Id. at 298 - 99. We also noted, however, that there was a “ strong argume nt that plaintiffs may advance an employment discrimination clai m under § 1983 based on an Equal Pro tection Clause violation . . . . ” Id. at 300 n.34. That is how Pl aintiff structured his § 1983 claim, and h is theory is legally sou nd. Similar to the NJLAD claim, the parties do not disput e on appeal that McDonnell Dou glas appli es to t he § 1983 cl aim. For the reasons set forth above w ith respect to Plaintiff ’ s NJLAD claim, we reject Defen dants’ evidentiary argument that they were entitle d to summary ju dgment on Pla intiff ’ s

26 § 1983 claim. Therefore, we will reverse the judgment disposing of this cause of action. V. Plaintiff’ s § 1981 claim was defective. He does not dispute that conclusion with respect to the individual Defendants, but he con tends on appeal that he was entitle d to proceed on a Monell theory agai nst Bergenfield under § 1981. He is wrong. Section 1983 “provide s the exclusive federal damages remedy for the violati on of the right s guaranteed by § 1981 when the claim is pressed again st a state actor. ” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989). In Jett, the U.S. Supreme Court rejecte d a § 1981 damages claim against a municipality that was based on a resp ondeat superior theory. Id. at 735 - 36. The Jett Court left open the possibility of a § 1983 claim against a municipality predica ted on a statut ory right established in § 1981, but only if the claim was based on the theory articulated i n Monell v. Ne w York City Department of Social Serv ices, 436 U.S. 658 (19 78). See J ett, 491 U.S. at 736. We acknowledged this possib ility in McGovern v. City of Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009). To spell it out: A Monell theory against a munic ipality “arisin g under § 1981, ” id., is a § 1983 claim relying on a Mo nell theory predicated o n a violation of one of the rights established in § 1981. Plaintiff ’ s § 1981 claim is str uctured differently, and fatally so. Therefore, we will affirm this aspect of the District Court ’ s ruling.

27 VI. For the foregoing reas ons, we will reverse th e judgment of the Distr ict Court as to Plaintiff ’ s NJLAD an d § 1983 clai ms, affirm as to the § 19 81 claim, and remand for proceedings consistent with this opi nion. Counsel fo r Appellant Dylan T. Hastings [Argued] Williams Cedar Counsel for Appell ees John L. Shahdanian, II [Argued] Zachary S. Poreman Trenk Isabel Siddiqi & Shahdanian

1 Massey v. Borough of Bergenfield, et al., No. 24-2761 BOVE, Circuit Judge, concurring. I write to point out an additional reas on that the New Jersey leg of courts’ “problematic detour” with the Background Circumsta nces Rule should end. Iadimarco v. Runyon, 190 F.3d 151, 162 (3d Cir. 1 999). 1 The Rule is a discriminatory applica tion of New Jersey’s facially neutral Law Against Discrim ination (NJLAD). T hus, the Rule “plainly” violates the Equal Protec tion Claus e. Ames v. Ohio Dep’t of Youth Serv s., 605 U.S. 303, 314 n.1 (2025) (Thomas, J., concurring). I. The “central mandate” of the Equal Pr otection Clause is “racial neutrality in governmental de cisionma king.” Miller v. Johnson, 515 U.S. 900, 904 (1995). The Cla use “‘cannot mean one thing when applied to one indivi dual an d something else when applied to anot her.’” Ames, 6 05 U.S. at 3 14 n.1 (Thomas, J., concur ring) (quoting Students for Fair Admissions, Inc. v. P resident & Fello ws of Harvard Coll. (Harvard), 600 U.S. 1 81, 206 (2023)). “One of the p rincipal reasons race is trea ted as a forbidden cl assification is that it demeans the dignity and wort h of a per son to be j udged by ancestry instead of b y his or her own me rit and essentia l qualities.” Rice v. Cayetano, 528 U.S. 495, 5 17 (2000). This logic holds firm even where the rule at issue was establishe d “ for a ‘beneficial’ or ‘laudable’ purpose.” Pryor v. NCAA, 288 1 Unless ot herwise indi cated, case quotation s omit all in ternal citations, quotation marks, foot notes, alterations, an d subsequent history.

2 F.3d 548, 567 (3d Cir. 2002). The Constitution requires “[m] ore than good motives. ” Adarand C onstructors, Inc. v. Pena, 515 U.S. 200, 22 6 (1995). Faithful adherence to these principle s leaves no doubt that New Jersey’s Background Circu mstances Rule operates i n a racially discriminat ory mann er. The judge- made Rule t akes a “ facially neutral law ” and applies it to litig ants “differently on the basis of race.” Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 543 (3d Cir. 2011) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)); Jewish Home of E. P a. v. Ctrs. for Medicare & Medicaid Servs., 693 F.3d 359, 363 (3d Cir. 2012) (“Selective discriminatory e nforcement of a faciall y valid law is unco nstitutional under the Equal Pr otection Clause . . . . ”). As such, the Rule “embod[ies] stereotypes that treat individuals as the product of the ir race, evaluating their thoughts and efforts — t heir very worth as citiz ens — accor ding to a criterion barred to the Government by history and the Constitution.” Miller, 515 U.S. at 912. “[G]overnment- sponso red racial discriminati on based on benign prejudice is just as noxiou s as discrim ination inspired by malicious prejudice.” Adarand Co nstructors, 515 U.S. at 24 1 (Thomas, J., concurring in part and concurring in the judgment). New Jersey’s pursuit of “a particular course of action ‘ because of ’ its desire to benefit a particular racial group” reflects discriminatory intent. Antonel li v. New Jersey, 419 F.3d 267, 274 (3d Cir. 2005) (e mphasis added). Under th e Background Circumst ances Rule, t he NJ LAD provides expansive protection to “persons usual ly discriminated again st in the work place,” but less protection to other individual s because of their memb ership in a so - called “generally fa vored group.” Erickson v. Marsh & McLennan Co., 569 A.2d 793, 799 (N.J. 1990). The New Jersey co urts hav e been clear t hat

3 the Rule imposes a “heightened” and “hea vy” burden o n certain NJLAD plaint iffs becau se of their so-called “majority” status. Bergen Com. Bank v. Sisler, 723 A.2d 944, 959 - 60 (N.J. 1999); see also Cappella v. City of Atl. City, 20 14 WL 1281516, at *12 (N. J. App. Div. 2014) (although white plaintiff “may have established a prim a facie case of retaliation” he failed to meet his “he avy” burden because he “offered no backgroun d circumstances” evi dence). “[W]ell- intentioned or not, express or neutral on its face, a law or policy tha t purposefully discrimi nates on acc ount of race is presumptiv ely invalid and ca n survive onl y if it withstands strict scrut iny revie w.” Pryor, 288 F.3d at 566; see also Pemberthy v. Be yer, 19 F.3d 857, 871 n.19 (3d Ci r. 1994) (“[A]ll racial c lassifications require strict scrutiny regardless of whether they favor or di sfavor the members o f any particular group.”). Under that standard, judicial “acceptance of race - based state action h as been rare” because “[d]istinctions betwee n citizens solely be cause of their ancestry are by their very nature odious to a free people whose institutions are found ed upon the do ctrine of equality.” Harvard, 600 U.S. at 2 08. T he Background Circumstances Ru le’s discri mination lacks an “extraordinar y justification.” Doe, 665 F.3d at 5 45. The NJLAD all but confirms th at such a j ustification d oes not exist. In addition to the categorical prohibition on discrimination against “any” person, the text of the NJLAD includes a legislative fi nding that “disc rimination again st any of [New Jersey’s] inha bitants. . . me naces the institutions and foundation of a free democratic State.” N.J. Stat. Ann. §§ 10:5- 3, 10:5 - 12(a) (emphasis a dded). It is difficult to conceive of an un stated justi fication for “menacing” New

4 Jersey’s “institutions a nd foundation” by appl ying the NJLAD in a discriminatory ma nner based on the R ule. When given an opportunity a t argument to proffer a justification for the B ackground Circumstanc es Rule, similar to the attorneys for Ohio in Ames, Defe ndants’ counsel offere d no valid “justificatio n for imp osing a hei ghtened evid entiary standard on majority - group plaint iffs.” 605 U.S. at 311. G eneralized concerns about societa l discrimination are no t enough. See Thompson v. Henderso n, 143 S. Ct. 2412, 241 3 - 14 (2023) (Alito, J., respecting t he denial of certiorari) (ci ting Harvard, 600 U.S. at 207); Adara n d Construc tors, 515 U.S. at 239 (Scalia, J., concurring in part and co ncurring in the judgment) (“In my v iew, government can never have a ‘compelling interest’ i n discriminating on the basis of race i n order to ‘make up’ for p ast racial discrimina tion in the o pposite direction.”). That is particularly true where, as here, expresse d concerns about past societal discrimination ar e divorced from a finding that a New Jersey institution is culpable in that conduct. See Lo mack v. City of Newark, 463 F.3d 303, 307 (3d Cir. 2006) (“[R]ace - based preference s cannot be justified b y reference to past ‘so cietal’ discrimina tion in w hich the municipality played no material role.”). The C onstitution does not permit enforceme nt of “shifting pref erences based on inherently unmeasurable claims of past wro ngs.” City of Richmond v. J.A. Cros on Co., 488 U.S. 469, 506 (1989). Even if there was an interest sufficient to w arrant the racial discrimination at issue, the B ackground Circumstances Rule is not “‘narrowl y tailored’ — meaning ‘necessary’ —to achieve that interest.” Harvard, 600 U.S. at 207. From inception, the Rule was a crude measure. Like other courts, the Supreme Court of Ne w Jersey was tryi ng to address t he fact that McDonnell Do uglas made status in a “protected class” a n

5 element of a prima facie discriminatio n claim. See Erickson, 569 A.2d at 799. In re sponse, New Jersey joined the effort by other federal courts to “‘cram’ the ‘reverse discriminat ion’ cases into the McDonnell Dougl as framework.” Iadima rco, 190 F.3d at 158. The resultin g approach was improperly “literal,” id., and unnecessarily “inflexible,” Ames, 605 U.S. at 311. This Court explained more than 25 years ago that there is a simpler, race - neutral alternative for applyi ng the NJLAD i n this setting. See Iadima rco, 190 F.3d at 1 61 (“[A]ll that sh ould be required to establi sh a pri ma facie case i n the context of ‘reverse discrimination ’ is for the plaintiff to present suf ficient evidence to allow a fact finder to conclud e that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII.”). T he Supreme Court of New Jersey observed at the start of all this that caselaw applying McDonnell Douglas “must be modified where appropriate.” Erickson, 569 A.2d at 799. Nevertheles s, the court chose not t o modi fy the McDo nnell Dou glas prima facie case, and “t here does not appear to have been any consideration” of the t ype of option we subsequently ad opted in Iadimarco. Croson, 488 U.S. at 507. An additional tailoring defect arises from the fact that t he racial and other categorie s neces sary to draw the discriminatory lines contemplate d by the Backgro und Circumstances Rule “t end to be overbroad a nd imprecise in many ways.” Ames, 6 05 U.S. at 316 (Tho mas, J., conc urring). The Rule’s application turns on the concept of a “majority,” but offers no guidance on the appro priate geographic boundaries for doing that math. O n this issue, Defendants’ counsel claimed at argument — implau sibly— that th e appropriate geographic unit for defining the “ majority” when applying the Rule was not Berge nfield, or Ber gen County, or

6 even “the limited wind ow of the State o f New Jersey.” Oral Argument Audio at 20:40. “We have never approved t he extrapolation of discrimination in o ne jurisdiction from the experience of another.” Croson, 488 U. S. at 505. The Background Circ umstances Rule als o relies on assumptions about a n “unusual employer” th at are counter to reality an d therefore unnecessary for purposes of strict -scrutiny tailoring analysis. See Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 302 n.6 (3d Cir. 2004) (“[I ]t may not be so unus ual for employers to d iscriminate a gainst the majority. . . .”); see also Oncale v. S undowner Off shore Servs., Inc., 523 U.S. 75, 78 (1998) (“Because of the many facets of human motivat ion, it would be unwi se to presume as a matter of law that h uman beings of one definable group will not discr iminate against other members of their group.”). This i s illustr ated by the fact that, in Harvard, “self - proclaimed ‘Major American Busine ss Enterprises’ filed a vehement amicu s brief” advocating for t he form of discrimination that the Court ultima tely prohibited. Smyer v. Kroger Ltd. P’ship I, 2024 WL 10 07116, at *7 (6th Cir. 2024) (Boggs, J., concurring); see also Preston v. Wis. Health Fund, 397 F.3 d 539, 542 (7th Cir. 2 005) (e xplaining that “situations have been identified ” where companies “a re under pressure from affirmative action plans”). The fact that the “unusual employer” premise no longer h olds is another reason why the Rule is not n ecessary in t he strict -scr utiny sense. * * * In plain terms: “racial discrimination is nearl y always irrational.” Pryor, 288 F.3d at 566. T his criticism str ikes a fierce blow to th e Back ground Circum stances Rule. The Rule

7 cannot survive strict scrutiny because it is unjustified and untailored. So the Rul e violates the Equal Protection Cl ause. II. Our panel opinion applies bindi ng preceden ts strewn along a winding road of judge - made rules starting with Erie, which some have said was “obviously, la ughably, friendl essly wrong.” Stanford ex rel. Phillips v. Bran don Nursing & Rehab. Ctr., LLC (St anford), 16 0 F.4th 118, 129 (5th Cir. 2025) (Oldham, J., dis senting). An Erie pre diction was the appropriate course under our precedent, and it was unnecessary to certify the question to New Jersey, because the NJLAD’ s text is not “unclear.” United States v. Defreit as, 29 F.4th 135, 141 (3d Cir. 2022). We were required t o perform a bit of a hybrid a nalysis, ho wever, beca use New Jersey cour ts have spent more than 45 years lookin g to McDonnell Douglas and related federal caselaw when applying the NJ LAD. See, e.g., Peper v. Princeton Uni v. Bd. of Trs., 389 A.2 d 465, 479 (N.J. 1978). That challenged the application of “ Erie ’s deeply ahistorical premise tha t federal judges are custodians o f federal law, while state judges are custodi ans of state law — and never the twain shall meet.” Stanford, 160 F.4th at 133 (Oldham, J., dissenting). The twain met here. The custodi al duties o verlapped. The District Court was required to apply state law interpreting a federal test, Mc Donnell Douglas, that is not without flaws. “[T]he tide runs against McDonnell Douglas as strongly as it does for a good reason for the test has proven of limite d value even in its native waters,” often inv iting “confusion an d complexities.” W alton v. Powell, 821 F.3d 1 204, 1210 (10th Cir. 2016) (Gorsuch, J.). This “confusio n arises” in an acute manner when “attempt ing to apply the McD onnell Douglas

8 burden-shifting frame work” in “reverse discrimination” ca ses. Iadimarco, 190 F.3d at 158. Here, the ch allenges the D istrict Court was forced to grapple wit h also incl ude the fac t that the “intermediate evidenti ary burdens” of McD onnell Douglas isolate evidence into unnatural buckets tha t are di fficult to differentiate and in tension with the text of Rule 56. Texas Dep’t of Cmty. Affa irs v. Burdi ne, 450 U. S. 248, 253 (1981). This can have the unintended effect of obscuring the “ultimate question”: the existence, or not, of material factual disputes regarding whether “the defendant intenti onally discrimi nated against the plaintiff.” Id.; see also Ismael v. Roundtree, 2025 WL 3492930, at *6 (11th Cir. 2025) (“[F] ocusing on the defendant’s justification can lead both litigan ts and the court down a rabbit hole that obfuscates t he plaintiff’s affirmativ e claim.”). The Equ al Protection Clause cuts t hrough th e vortex of binding judicial contri vances— Erie, McDonne ll Douglas, an d the Background Circumstances Rul e — that swirled around th is appeal. See Hollis v. Morgan State Univ., 153 F.4th 369, 387- 88 (4th Cir. 2025) (Quattlebaum, J., conc urring) (“When someone says, ‘watch t his, hold my b eer,’ wh at follows rarely turns out well. The s ame is true when judge s make up tests inconsistent with the s tatutory text that Congress enacted.”). W hile our prediction about how the Supreme Court of New Jersey would apply A mes to the NJL AD is based exclusivel y on the considera tions set forth in the panel opinion, I do not believe the Constitutio n permits any other conclusion.