Christopher G. Massey v. Borough of Bergenfield

U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 24-2761
CHRISTOPHER G. MASSEY ,
APPELLANT
v.
BOROUGH OF BERGENFIELD ; A RVIN A MATORIO ;
H ERNANDEZ RIVERA ; O RA KORNBLUTH ; RAFAEL MARTE ;
BUDDY D EAUNA
_____________________________
Appeal from the U.S. District Court, D.N.J.
Judge Jamel K. Semper, No. 2:20-cv-01942
Before: C HAGARES , Chief Judge, B OVE and SCIRICA ,
Circuit Judges
Argued Oct. 27, 2025; Decided Mar. 6, 2026
____________________________
O PINION OF THE COURT
BOVE , Circuit Judge. Plaintiff Christopher Massey is a
white male who served for decades in the Borough of
Bergenfield’s Police Department. He rose to the rank of
Deputy Chief and was acting as the Department’s Officer In
Charge in mid-2019. Around that time, the Borough denied
Plaintiff a promotion to the Chief position in favor of Mustafa
Rabboh, an Arab-Muslim male with the rank of Captain. In
response, Plaintiff brought discrimination claims under state

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and federal law against Bergenfield and the five members of
Bergenfield’s Council who voted for Rabboh. 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, which is known as the
“Background Circumstances Rule.” Derived from abrogated
opinions by federal courts other than our own, New Jersey’s
version of the Rule requires a plaintiff who is not in the
“minority” to “show that he has been victimized by an unusual
employer who discriminates against the majority.” Erickson v.
Marsh & McLennan Co., 569 A.2d 793, 799 (N.J. 1990).1
In a decision issued after this appeal was fully briefed,
the U.S. Supreme Court unanimously struck down the
Background Circumstances Rule for purposes of litigation
under Title VII of the Civil Rights Act of 1964. Ames v. Ohio
Dep’t of Youth Servs., 605 U.S. 303 (2025). When a federal
court is asked to pass upon an unresolved state-law matter, our
task is to predict how the highest court of that state would
decide the relevant legal issue. That is our job in this case.
Although the Supreme Court of New Jersey has not yet had
occasion to address Ames, we predict that the court would rely
on Ames to conclude that the State’s Background
Circumstances Rule no longer has a permissible role to play in
litigation under New Jersey’s Law Against Discrimination
(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 protections to “any”—and,
1 Unless otherwise indicated, case quotations omit all internal
citations, quotation marks, footnotes, alterations, and
subsequent history.

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therefore, all—individuals. The language applies regardless of
supposed membership in a majority or minority group. These
considerations are reinforced by the fact that the Rule’s
vagueness leaves it susceptible to arbitrary applications and
inconsistent results, as we pointed out when we rejected the
federal version long ago. See Iadimarco v. Runyon, 190 F.3d
151, 158-59 (3d Cir. 1999).
After removing the Background Circumstances Rule
from the equation, and upon de novo review of Defendants’
summary judgment motion, there are genuine disputes
concerning material facts that arise from Plaintiff’s direct and
circumstantial evidence of discrimination. Defendants
conceded in their summary judgment motion that they
“considered Rabboh’s race” when deciding on the promotion.
JA 79. Plaintiff testified that Bergenfield’s Borough
Administrator told him the decision was “all about race.” JA
475. Based on this evidence, and more, Plaintiff was entitled
to a trial. Accordingly, we will reverse in part, affirm in part,
and remand for proceedings consistent with this opinion.
I.
We summarize the dense record and procedural history
of the matter, drawing all reasonable inferences in Plaintiff’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 Bergenfield has a Mayor, a Borough
Administrator, a six-member Council, and a Police Department
with over 40 officers. Department promotions—including the

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promotion to Chief of Police—are decided by a majority vote
of the Council. The Mayor breaks any ties.
The Council consists of six elected individuals. During
the relevant period, the Councilmembers were Arvin
Amatorio, Hernando Rivera, Buddy Deauna, Rafael Marte,
Ora Kornbluth, and Thomas Lodato. Defendants are
Bergenfield and the five Councilmembers who voted against
Plaintiff’s promotion in 2019: Amatorio, Deauna, Kornbluth,
Marte, and Rivera. For simplicity’s sake, although some
Defendants and other relevant individuals have changed roles
since the operative events, we use job titles in this opinion to
refer to the people who held those roles in 2019.
Plaintiff is a white male who began his service at the
Bergenfield Police Department in 1995. Mustafa Rabboh, who
received the promotion at issue, is described in the record as an
“Arab,” or “Palestinian,” of Muslim faith. See, e.g., JA 2, 392,
415, 475. He joined the Department via a lateral transfer eight
years later in 2003. Although Rabboh eventually obtained the
rank of Captain, he was also the subject of seven complaints to
the Department’s Internal Affairs Bureau and received a four-
day disciplinary suspension based on one of those complaints.
Between 2003 and 2015, Plaintiff obtained promotions
through the ranks of Sergeant, Lieutenant, and Captain. In
2015, Bergenfield’s Council voted to promote Cathy Madalone
to be the Chief of the Department instead of Plaintiff.
Following that decision, the Council made Plaintiff the
Department’s Deputy Chief. In that role, Plaintiff was
responsible for “three-quarters to 90 percent of the department
on a day-to-day basis.” JA 451. In February 2019, when
Madalone had to miss work for medical reasons, she named
Plaintiff the Department’s Officer In Charge. Madalone

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announced her retirement months later, and Plaintiff continued
to act as the Department’s Officer In Charge while the Council
searched for Madalone’s replacement.
At a meeting of the Council’s Police Committee on June
6, 2019, the Borough Administrator informed Plaintiff and
Rabboh that the Council would interview both of them for the
Chief position. The Mayor and Defendants Amatorio, Rivera,
and Kornbluth were present at the meeting. During the
meeting, Defendant Rivera asked Plaintiff to identify officer
candidates that the Department was considering hiring at the
time, including their genders and what the candidates “look[ed]
like.” JA 460. The Mayor understood that Defendant Rivera
asked the question because he wanted to help a female
associate get the job instead. After Plaintiff resisted,
Defendant Rivera told Plaintiff that he did not “look like the
people in the town.” JA 460.
On August 6, 2019, the Mayor, the Borough
Administrator, and the Council interviewed Plaintiff and
Rabboh for the Chief position in a closed executive session.
The individual Defendants were “playing on their phones”
during Plaintiff’s interview. JA 473. Defendant Marte arrived
approximately 30 minutes late. In an informal vote following
the interviews, Defendants Amatorio, Deauna, Marte, and
Rivera voted for Rabboh. Toward the end of the closed
session, Councilman Lodato expressed concern about the
decision and predicted that the Council’s choice was
“definitely going to cause a lawsuit.” JA 694. The meeting
minutes are less colorful. According to that document, the
Mayor and the Council “agreed that the two candidates are very
qualified for the position” and “great,” but that Rabboh “is the
better candidate for the position.” JA 297.

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Following the informal vote, the Borough
Administrator told Plaintiff that the Council “screwed over”
Plaintiff by promoting Rabboh. JA 704. The Borough
Administrator indicated that the Council’s decision was “all
about race.” JA 475. During a deposition, Defendant Marte
agreed that it was “important to have a minority department
head” in Bergenfield. JA 601. Defendant Deauna testified that
he believed Rabboh would be a better Chief, in part, because
“he’s a minority.” JA 611.
On August 20, 2019, the Council convened public
proceedings to formally vote Rabboh in as Chief of the
Department. The Mayor, Borough Administrator, and all six
members of the Council were present, though Councilman
Lodato arrived approximately 45 minutes late. At the meeting,
Defendant Kornbluth joined Defendants Amatorio, Deauna,
Marte, and Rivera in voting to promote Rabboh.
Defendants contend that their votes were based on non-
discriminatory considerations, including the candidates’
qualifications, interview performance, and strategic planning
as well as asserted interests in continuity for the Chief position
and diversity. There is no dispute that diversity was a
significant feature of remarks by public officials when Rabboh
was sworn in. According to the minutes, while praising
Rabboh, Defendant Amatorio noted that “[t]his is a diverse
town, audience, [and] council.” JA 337. Defendant Deauna
stated that Rabboh would bring “understanding of the
diversified community” of Bergenfield to his new role. JA
337. Defendant Marte emphasized that “Bergenfield
appointed the first female Police Chief in 2015, and now has
appointed the first Muslim Police Chief, only the second in the
State of New Jersey.” JA 337. Defendant Rivera told the

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group that he hoped to “continue doing the right thing for the
diverse community in Bergenfield.” JA 337.
B.
In February 2020, Plaintiff filed three claims alleging
racial and religious discrimination in violation of the NJLAD,
N.J. Stat. Ann. § 10:5-12(a); 42 U.S.C. § 1983 and the Equal
Protection Clause; and 42 U.S.C. § 1981.
Following discovery and a period of unsuccessful
settlement discussions, Defendants moved for summary
judgment in December 2023. The District Court granted the
motion in September 2024. With respect to Plaintiff’s NJLAD
claim, the District Court found that Plaintiff had not met the
requirements of the Background Circumstances Rule. The
court also concluded that Plaintiff had failed to adequately
rebut Defendants’ justifications for their promotion decision.
The court granted summary judgment on Plaintiff’s § 1983
claim by reasoning that employment-related claims for race
discrimination cannot be brought under that statute. The court
granted summary judgment on the § 1981 claim because the
statute does not provide for a private cause of action.
II.
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291.
We review a District Court’s grant of summary
judgment de novo. Jorjani, 151 F.4th at 140 n.5. A summary
judgment movant must establish either of two “closely related”
scenarios. Mall Chevrolet, Inc. v. Gen. Motors LLC, 99 F.4th
622, 630 (3d Cir. 2024). “[U]nder the standard approach, the

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moving party may produce material facts, established as
genuinely undisputed, that entitle it to judgment as a matter of
law.” Id. Alternatively, the movant “may instead demonstrate
that the nonmoving party has not made a showing sufficient to
establish the existence of an element essential to that party’s
case . . . on which that party will bear the burden of proof at
trial.” Id.; see also Parker v. N.J. Motor Vehicle Comm’n, 158
F.4th 470, 478 (3d Cir. 2025).
III.
Plaintiff is entitled to a trial on his NJLAD claim. The
principal driver of that outcome is Ames. Whereas the District
Court faithfully applied binding pre-Ames authorities relating
to the NJLAD, we must address the implications of the U.S.
Supreme Court’s intervening analysis of identical language
from Title VII. We predict that the Supreme Court of New
Jersey would rely on Ames to put an end to New Jersey’s
version of the Background Circumstances Rule. Based on that
holding, there are factual disputes 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 the scene. Since the 1970s, New
Jersey has applied the three-step McDonnell Douglas
framework to NJLAD claims. In 1990, the Supreme Court of
New Jersey adopted other federal courts’ version of the
Background Circumstances Rule. In 1999, we declined to
adopt the Rule for purposes of Title VII. Things went quiet on
this front for a while. At least in the Third Circuit and New
Jersey. Then, last summer in Ames, the Supreme Court

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rejected the Title VII version of the Rule. Here are the relevant
details:
New Jersey courts started to apply the McDonnell
Douglas framework in 1978. Peper v. Princeton Univ. Bd. of
Trs., 389 A.2d 465, 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 federal law from outside this Circuit and
adopted the Background Circumstances Rule as the standard
for a prima facie case in NJLAD “reverse-discrimination”
claims. 569 A.2d at 799. The Rule “modified the first prong
of the McDonnell Douglas standard to require the plaintiff to
show that he has been victimized by an unusual employer who
discriminates against the majority.” Id. The Erickson court
explained that New Jersey’s Rule is “derived from its federal
counterpart,” and “agree[d]” with a decision of New Jersey’s
Appellate Division adopting the Sixth Circuit’s then-existing
version of the Rule. Id. (citing Murray v. Thistledown Racing
Club Inc., 770 F.2d 63, 67 (6th Cir. 1985)). As additional
support, the Supreme Court of New Jersey cited five additional
federal decisions applying the Background Circumstances
Rule in Title VII cases. Id.
Almost 10 years after Erickson, we departed from
several other Circuits and declined to “cram” the Background
Circumstances Rule into Title VII. Iadimarco, 190 F.3d at
158. We found the Rule “problematic and unnecessary,” in
part because it “raise[d] the bar” for “reverse-discrimination”
plaintiffs in a manner that is inconsistent with the text of Title
VII as interpreted by the Supreme Court. Id. at 159, 161.
In Ames, the U.S. Supreme Court rejected the federal
version of the Background Circumstances Rule. The Ames

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Court unanimously held that the Rule “is not consistent with
Title VII’s text or our case law construing the statute.” 605
U.S. at 306. The statutory text “draws no distinctions between
majority-group plaintiffs and minority-group plaintiffs.” Id. at
309. Thus, “the standard for proving disparate treatment under
Title VII does not vary based on whether or not the plaintiff is
a member of a majority group.” Id. at 310. The Rule also
“ignores” the U.S. Supreme Court’s “instruction to avoid
inflexible applications of McDonnell Douglas’s first prong” by
“uniformly subjecting all majority-group plaintiffs to the same,
highly specific evidentiary standard in every case.” 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 New Jersey has not had an opportunity to
weigh in. New Jersey’s intermediate appellate courts and trial
courts have not been free to do so because of Erickson. See
State v. DeRosa, 2019 WL 2869611, at *6 (N.J. App. Div.
2019). So we are left to perform the “delicate task” of
predicting how the Supreme Court of New Jersey “would
interpret and apply the [NJLAD] in the aftermath” of the
Supreme Court’s recent decision. McKenna v. Pac. Rail Serv.,
32 F.3d 820, 825 (3d Cir. 1994). Based on New Jersey’s
interpretative methodology and the operative 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 the Supreme Court of New
Jersey would react to Ames, we are mindful that the court has
“looked to federal law as a key source of interpretive
authority.” Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903,

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906 (N.J. 1990). Based on that practice we predict, similar to
our predictions in other cases, that the Supreme Court of New
Jersey would find the analysis in Ames compelling when
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 the New Jersey Supreme Court would
follow the analytical directive of [the Supreme Court in] Weber
and Johnson.”); see also Zanetich v. Wal-Mart Stores E., Inc.,
123 F.4th 128, 141 (3d Cir. 2024) (reasoning that a “predictive
judgment is informed, in part, by federal caselaw”); Tatarunas
v. Progressive Cas. Ins. Co., 2025 WL 2673991, ¶¶ 28-29
(Ohio App. 8th 2025) (finding that Ames abrogated state-law
Background Circumstances Rule).
This follows from the fact that both courts apply the
same “[b]asic techniques of statutory interpretation.” New
Jersey v. Grate, 106 A.3d 466, 473 (N.J. 2015). Plain meaning
of unambiguous statutory text controls. See, e.g., Crisitello v.
St. Theresa Sch., 299 A.3d 781, 792 (N.J. 2023). The pertinent
text from Title VII and the NJLAD is identical. Both statutes
prohibit discrimination against “any” person. 42 U.S.C.
§ 2000e-2(a)(1); N.J. Stat. Ann. § 10:5-12(a). The Supreme
Court of New Jersey “has been scrupulous in its insistence that
the Law Against Discrimination be applied to the full extent of
its facial coverage.” Nini v. Mercer Cnty. Cmty. Coll., 995
A.2d 1094, 1100 (N.J. 2010). The facial coverage of the
NJLAD leaves no room for the Background Circumstances
Rule.
When making Erie predictions, we also consider the
“policy of the statute” as articulated by a state’s legislature and
apex court. Wayne Moving & Storage of New Jersey, Inc. v.
Sch. Dist. of Philadelphia, 625 F.3d 148, 155 (3d Cir. 2010).
The Supreme Court of New Jersey has repeatedly explained

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that the NJLAD “ban[s] employment discrimination” and
seeks to achieve “nothing less than the eradication of the cancer
of discrimination in the workplace.” Bergen Com. Bank v.
Sisler, 723 A.2d 944, 949 (N.J. 1999). Banning and
eradication are absolute, categorical terms reflecting resolve
and focused intention to eliminating discrimination. And
“[e]liminating racial discrimination means eliminating all of
it.” Students for Fair Admissions, Inc. v. President & Fellows
of Harvard Coll., 600 U.S. 181, 206 (2023). In Title VII,
“Congress left no room for courts to impose special
requirements on majority-group plaintiffs alone.” Ames, 605
U.S. at 310. New Jersey’s legislature did the same thing by
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 “assure some reasonable degree of symmetry
and uniformity.” Grigoletti, 570 A.2d at 912. Since Erickson
was decided in 1990, the federal experience with the
Background Circumstances Rule was hardly positive. In
Iadimarco, with the benefit of more data, we observed that
“application and interpretation” of the Rule had already
“proven difficult.” 190 F.3d at 160. We characterized the Rule
as “problematic,” “irremediably vague,” “amorphous,” “ill-
defined,” and “unnecessary.” Id. at 161, 163.
For all of these reasons, we are confident that the
Supreme Court of New Jersey would once again conclude that
“it is in the best interests of everyone concerned to have some
uniformity in the law” and thus interpret the identical text in
the NJLAD in the same manner that the U.S. Supreme Court
interpreted Title VII. Peper, 389 A.2d at 478. We therefore
predict that the Supreme Court of New Jersey would strike

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down the Background Circumstances Rule much in the same
way that the Ames Court did.
C.
We now turn to the record. The parties agreed that the
McDonnell Douglas framework applied to Defendants’ motion
for summary judgment. The District Court obliged.
McDonnell Douglas is an “evidentiary edifice
constructed by the Supreme Court.” Marzano v. Comput. Sci.
Corp. Inc., 91 F.3d 497, 510 (3d Cir. 1996). “[C]onfusion
arises” when “attempting to apply the McDonnell Douglas
burden-shifting framework” in “reverse discrimination” cases.
Iadimarco, 190 F.3d at 158. As a result, we do not envy the
District Court’s assignment, and our conclusions below in no
way question the court’s characteristically thoughtful approach
to the job at hand.
1.
Setting aside the Background Circumstances Rule, as
we must, the prima facie case for an NJLAD failure-to-
promote claim has three requirements: (1) the plaintiff was
qualified for the promotion; (2) he was denied the promotion;
and (3) the position was awarded to an applicant with similar
or lesser qualifications. See, e.g., Andersen v. Exxon Co.,
U.S.A., 446 A.2d 486, 490-91 (N.J. 1982); see also Iadimarco,
190 F.3d at 161 (reasoning that “all that should be required” in
a “reverse-discrimination” case is “sufficient evidence to allow
a fact finder to conclude that the employer is treating some
people less favorably than others based upon a trait that is
protected”). At summary judgment, this is at most a “slight”
evidentiary burden. Zive v. Stanley Roberts, Inc., 867 A.2d

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1133, 1139 (N.J. 2005). The prima facie burden is “no longer
relevant” after defendants seek to articulate non-discriminatory
reasons for an employment action. See Hopp v. City of
Pittsburgh, 194 F.3d 434, 439 (3d Cir. 1999) (Alito, J.).
Defendants acknowledge that Plaintiff “was a qualified
candidate for the position of Chief.” Br. 14. He was a white
male who served the Department since 1995 and ascended to
the roles of Deputy Chief and Officer In Charge. Some in
Bergenfield’s leadership supported Plaintiff’s pursuit of the
Chief promotion when the job was previously vacant in 2015.
It is “certainly relevant,” though not by itself sufficient,
that the five individual Defendants who voted to promote
Rabboh are members of minority groups. Iadimarco, 190 F.3d
at 156. Defendants conceded in their summary judgment
motion that they “considered Rabboh’s race and religion”
when making that decision. JA 79. After participating in the
interviews with the Council, the Mayor believed that Plaintiff’s
resume was “overwhelmingly better,” Rabboh was “definitely
under-qualified,” and the selection process was not “fair.” JA
712-13, 730. Councilman Lodato testified that he was “sure”
Plaintiff was “more qualified” than Rabboh. JA 641. Lodato
believed the Council’s decision was “wrong.” JA 641, 713.
Defendants’ main response is that Rabboh was also
qualified. That is not for us to decide and—even if true, which
it may well be—not sufficient to defeat Plaintiff’s prima facie
showing. “[O]nly the plaintiff’s evidence should be
considered.” Zive, 867 A.2d at 1144. We have recited here
some examples of the types of evidence that Plaintiff obtained
during discovery to support the inference that “discrimination
could be a reason for the employer’s action.” Id. at 1139. It

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will be up to a jury to sort that out, but nothing more was
required of Plaintiff at the prima facie stage.
2.
By making a prima facie showing of discrimination,
Plaintiff earned “the right, as in a poker game, to require the
employer to show its hand—that is, to offer an explanation
other than discrimination why the employee suffered an
adverse employment action.” Marzano, 91 F.3d at 508.
Defendants proffered several overlapping justifications
for the decision to promote Rabboh, which fit into five
categories: (a) qualifications; (b) interview performance;
(c) long-term strategy; (d) continuity; and (e) diversity. To
defeat the summary judgment motion, Plaintiff had to come
forward with evidence sufficient to establish a reasonable
inference that Defendants’ justifications were pretextual. See
Sisler, 723 A.2d at 955. Because “we may not require
affirmative evidence of discrimination in addition to proof of
pretext,” Plaintiff had two options. Kautz v. Met-Pro Corp.,
412 F.3d 463, 467 (3d Cir. 2005). The evidence had to permit
a factfinder to reasonably “(1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating 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 forth
evidence that Defendants’ justifications were false, as
discussed immediately below, and that discrimination was a
motivating factor in the decision, as discussed in the next
section.

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a.
Defendants concede that Plaintiff was qualified for the
promotion, but they contend that Rabboh was “legitimately
qualified.” Br. 19-20. Defendants cite Rabboh’s rapid
promotions during 16 years of service, exceptional scores on
civil service examinations, and strategic vision for the job.
As noted in the analysis of Plaintiff’s prima facie case,
the Mayor and Councilman Lodato both testified in depositions
that Plaintiff was more qualified than Rabboh. Their
conclusion is consistent with, among other things, Rabboh’s
record of Internal Affairs complaints and discipline. An
employer cannot prevail under McDonnell Douglas “merely by
asserting that the responsible hiring official selected the man
or woman who was the right person for the job.” Iadimarco,
190 F.3d at 166. Defendants’ similar justification is equally
unpersuasive under the NJLAD.
b.
Defendants seek to justify Rabboh’s promotion based
on the quality of the candidates’ interviews. The problem for
Defendants is that Councilman Lodato did not recall “anything
coming out in the interviews which would have persuaded
anyone to vote against” Plaintiff. JA 642. In addition, Plaintiff
testified that the participants in his interview were not attentive
and “playing on their phones.” JA 473. After the interview,
the Borough Administrator 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 better job of
positioning himself during the interview by discussing

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community ties and a strategy of community policing. But
Plaintiff testified that he, too, focused on “quality of life issues
and the community policing” during his interview. JA 467.
Plaintiff also described decades of meaningful engagement
with the Bergenfield community during his deposition. Dating
back to 2003, Plaintiff helped introduce police officers to
students at four Bergenfield elementary schools before the
students started to participate in the DARE Program. Around
2009, Plaintiff started to act as the liaison between the
Department and all the schools in Bergenfield. After Plaintiff
was promoted to Captain in 2012, he continued to act as a
“hands-on guy with the schools.” JA 448. Plaintiff regularly
engaged with the Board of Education, and he provided
strategic advice and counseling to administrators and teachers
based on violent incidents at schools outside of New Jersey.
Collectively, this evidence established material factual
disputes regarding the candidates’ emphasis on the community
during the interviews.
c.
Defendants argue that their decision was also based on
Rabboh’s long-term strategy, including a written “Five-Year
Plan” that he presented during his interview. Br. 3, 19.
Councilman Lodato testified that Rabboh’s Plan included
“goals and objectives” that were “similar to the ideas” that
Plaintiff “expressed verbally” during his interview. JA 639.
There were also factual disputes regarding whether and to what
extent Rabboh modified his Plan after obtaining the version
that Madalone had used to obtain the Chief promotion in 2015.
In addition to the evidence that Plaintiff and Rabboh addressed
similar concepts and plans during their interviews, the

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available inference of plagiarism by Rabboh supported
Plaintiff’s position regarding pretext.
d.
Defendants argue that Rabboh was promoted because
he had the “ability to provide long-term continuity to the
BPD,” i.e., Plaintiff was eligible to retire before Rabboh. Br.
19. Viewing the evidence in the light most favorable to
Plaintiff, the record does not sustain Defendants’ argument that
this was a differentiating characteristic.
Councilman Lodato testified that Plaintiff and Rabboh
each “gave a similar commitment” to serve at least five years
as Chief. JA 637. Plaintiff testified that he told the Council
during his interview that he planned to work at the Department
for “at least” five more years, and his preparatory notes from
the meeting corroborated that testimony. JA 471. The
Borough Administrator explained that Plaintiff “always said
that he would work until 30” years of completed service to the
Department—i.e., until 2025, which was almost 5.5 years after
the interview—and that Plaintiff was “pretty clear” about that
with the Council. JA 697. Thus, there is evidence in the record
that would permit a factfinder to reject Defendants’ assertion
that they promoted Rabboh based on concerns about continuity
in the Chief position.
e.
Defendants point to several considerations relating to
diversity. Viewed individually or together, Plaintiff came
forward with enough evidence to defeat summary judgment on
these issues.

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Counsel’s naked invocation of a diversity preference is
not a legitimate, non-discriminatory reason for an employment
decision. See, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S.
297, 311 (2013) (confirming that “outright racial balancing” is
“patently unconstitutional”); Freeman v. Pitts, 503 U.S. 467,
494 (1992) (“Racial balance is not to be achieved for its own
sake.”); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274
(1986) (“This Court never has held that societal discrimination
alone is sufficient to justify a racial classification.”); 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] diversity” are insufficient on their own to
justify the decision to promote Rabboh. Br. 16, 19.
It will be up to the jury to resolve the parties’ dispute
over the import of Defendants’ evidentiary references to
diversity, such as the comments at Rabboh’s August 20, 2019
swearing-in ceremony. Depending on credibility, context, and
other evidence, jurors could credit Defendants’ statements as
innocuous or consistent with a defensible policy aim—even
though the comments are not, on their own, a lawful race-
neutral justification for a challenged employment action. On
the other hand, we cannot rule out that jurors will regard
Defendants’ uses of diversity terminology at Rabboh’s
swearing in as “code words” reflecting discriminatory intent.
Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 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 discriminate.”); Price v.
Valvoline, L.L.C., 88 F.4th 1062, 1068 (5th Cir. 2023) (Ho, J.,
concurring in the judgment); Hill v. Ross, 183 F.3d 586, 589
(7th Cir. 1999) (Easterbrook, J.) (concluding that “a trier of fact

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20
might see” defendants’ invocation of an unwritten procedural
justification for an affirmative action plan “as nothing but a
smokescreen for discrimination”). That is why we have trials.
Defendants argue that we are empowered to resolve this
fact dispute in their favor based on Bergenfield’s alleged
“history of promoting Caucasian candidates to high-level
positions,” certain “Consent Decrees” discussed below, and the
Department’s “Recruitment/Equal Employment Opportunity”
Policy. Br. 5-6, 26. Not so.
Defendants cite no evidence demonstrating that they
were aware of the historical employment decisions referenced
by their counsel, many of which did not involve the
Department. “[A] fact finder could also conclude that
[Defendants] tried to manipulate the process to hire [Rabboh]
because [they] had already hired many White supervisors.”
Iadimarco, 190 F.3d at 165. In any event, to “employ racial
classifications to cure racial imbalances,” a government must
demonstrate that the imbalances resulted from “prior
intentional discrimination.” Lomack, 463 F.3d at 307
(emphasis added). Defendants do not suggest—much less
substantiate—intentional discrimination in the history they
invoke. As a consequence of each of these things, Defendants’
historical justification did not merit summary judgment.
The record reveals next to nothing about the Consent
Decrees that Defendants have invoked. The documents are not
in the appellate record, but we take judicial notice of public
filings in NAACP v. Bergenfield, No. 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 based on allegations of
discrimination against black people, which Bergenfield never
conceded and the NAACP was never required to prove. See

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21
id. ECF No. 3. The first Consent Decree was entered in 2000,
and Bergenfield moved to terminate it in 2018 based on
“substantial compliance.” Id. ¶ 19; id. ECF No. 5-1 at 4. In
lieu of termination, the NAACP and Bergenfield entered into a
second Consent Decree in February 2019. See id. ECF No. 24.
The second Decree required Bergenfield to conduct “targeted
advertising” for each civil service examination for a position,
“with a focus on African-American segments” 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 promotion. Cf. Lomack, 463 F.3d
at 310 (“Compliance with a consent decree may certainly be a
compelling interest . . . but only if the decree mandates the
race-based policy at issue.”). Nor do Defendants cite to any
evidence supporting their suggestion that they relied upon
these Consent Decrees during the selection process. We see
nothing in the record to cure either defect.
Defendants’ invocation of the Department’s
“Recruitment/Equal Employment Opportunity” Policy is
equally unavailing. JA 352. “[W]hile a valid affirmative
action plan is considered nondiscriminatory . . . an invalid
affirmative action plan is discriminatory.” 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 “contain as its premise a
finding of racial imbalance and express the basis for that
finding, set forth a goal for remediating the imbalance, and
prescribe some form of standards by which the goal will be
achieved.” Klawitter v. City of Trenton, 928 A.2d 900, 915
(N.J. App. Div. 2007). These “basic ingredients” are missing
from the version of Bergenfield’s Policy that is included in the
record before us. Id.; see also Schurr v. Resorts Int’l Hotel,
Inc., 196 F.3d 486, 497-98 (3d Cir. 1999). Thus, the record

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22
does not sustain Defendants’ position that the Policy was part
of a race-neutral justification for Rabboh’s promotion.
The relevance of the Policy is subject to additional
disputed factual questions. There is some force to Plaintiff’s
contention that the Policy, on its face, did not apply to the
promotion he sought. The Mayor believed the Policy applied
to hiring rather than promotions. There are several specific
references in the Policy to the position of “Police Officer,” but
not to the Chief job. JA 352. Perhaps the Policy’s general
references to “employment policies, practices and procedures”
and “selection of candidates” are broad enough to include
filling the Department’s Chief position. JA 355-56. We could
only guess, however, because Defendants point to no evidence
in the record regarding the Policy’s scope or application. Nor
do Defendants cite evidence indicating that they were guided
by the Policy in selecting Rabboh. Suffice it to say at this point
that the Policy does not bolster Defendants’ position in this
appeal.
* * *
Defendants offered a “bagful” of justifications for the
promotion decision. Fuentes, 32 F.3d at 764 n.7. Their bag is
subject to numerous “weaknesses, implausibilities,
inconsistencies, incoherencies, [and] contradictions in the
employer’s proffered legitimate reasons.” Id. at 765. For each
type of justification, Plaintiff pointed to evidence that would
permit a factfinder to “reasonably . . . disbelieve the
employer’s articulated legitimate reasons.” Id. at 764-65; see
also Zive, 867 A.2d at 1144-46. Therefore, Plaintiff met his
burden of establishing pretext.

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23
3.
Like federal law, New Jersey law provides a second
option for a plaintiff to make a pre-trial showing of pretext,
which overlaps significantly with the ultimate burden in a
discrimination case. See Zive, 867 A.2d at 1144-45; see also
Willis v. UPMC Child.’s Hosp. of Pittsburgh, 808 F.3d 638,
645 (3d Cir. 2015). Specifically, the plaintiff must provide
evidence to support a reasonable inference “that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.” Zive, 867 A.2d
at 1144. Then, “at trial the plaintiff must convince the
factfinder that not only was the employer’s proffered reason
false, but the real reason was impermissible discrimination.”
Willis, 808 F.3d at 645; see also Viscik v. Fowler Equip. Co.,
800 A.2d 826, 833-34 (N.J. 2002).
Defendants’ concession that they “considered Rabboh’s
race and religion” accomplished much on Plaintiff’s behalf in
opposing the summary judgment motion. JA 79. Defendants’
follow-up assertion that “race and religion were not the only
factors” that they considered is beside the point. JA 90. At
summary judgment, Plaintiff was not required to establish that
protected characteristics were “the sole or exclusive
consideration” in the promotion decision. Meade v. Twp. of
Livingston, 265 A.3d 148, 160 (N.J. 2021). The question was
whether there was enough evidence to support a reasonable
inference that race or religion “made a difference.” Id.
There was more than enough. The record contains both
direct and circumstantial evidence of discrimination,
including, as examples, the following deposition testimony:

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• 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 in the town.”
JA 460.
• After participating in the interviews and observing the
voting, the Borough Administrator told Plaintiff that the
Council’s promotion decision was “all about race.” JA
475.
• Part of the reason that Defendant Deauna preferred
Rabboh was that “he’s a minority.” JA 611.
• Defendant Marte was asked during his deposition if he
“believe[d] it’s important to have a minority department
head.” JA 601. He responded, “considering the
demographic of the town, yes, it is important.” JA 601.
• The Borough Administrator told Plaintiff that “Rabboh
was promoted because he would have been the first
Arab/Muslim chief of police in Bergen County.” JA
700-01.
• The Borough Administrator told Plaintiff that the
Council “screwed over” Plaintiff by promoting Rabboh.
JA 704.
• Councilman Lodato was “upset” about the promotion
decision and told the Council that it was “definitely
going to cause a lawsuit.” JA 693-94.
A factfinder could reasonably infer from this evidence, as well
as the evidence described above supporting the prima facie
case, that race and religion made a difference in Defendants’

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25
decision to promote Rabboh. Therefore, Defendants were not
entitled to summary judgment on Plaintiff’s NJLAD claim.
IV.
Plaintiff is also entitled to a trial on his § 1983 claim
alleging a violation of the Equal Protection Clause.
Section 1983 provides a mechanism for private actions
to vindicate constitutional rights in employment settings. See,
e.g., Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud.
Dist., 971 F.3d 416, 426-27 (3d Cir. 2020); Bradley v.
Pittsburgh Bd. of Educ., 913 F.2d 1064, 1078-79 (3d Cir.
1990). Williams v. Pennsylvania Hum. Relations Comm’n, 870
F.3d 294 (3d Cir. 2017) is not to the contrary. In Williams, the
§ 1983 claim was “based on violations” of Title VII and the
Americans With Disabilities Act rather than the Constitution.
See id. at 296. We characterized that plaintiff’s allegations as
involving “pure” statutory theories, and we declined to allow
the plaintiff to circumvent the “carefully crafted” procedural
requirements associated 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 argument that
plaintiffs may advance an employment discrimination claim
under § 1983 based on an Equal Protection Clause
violation . . . .” Id. at 300 n.34. That is how Plaintiff structured
his § 1983 claim, and his theory is legally sound.
Similar to the NJLAD claim, the parties do not dispute
on appeal that McDonnell Douglas applies to the § 1983 claim.
For the reasons set forth above with respect to Plaintiff’s
NJLAD claim, we reject Defendants’ evidentiary argument
that they were entitled to summary judgment on Plaintiff’s

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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 contends on appeal that he was entitled to
proceed on a Monell theory against Bergenfield under § 1981.
He is wrong.
Section 1983 “provides the exclusive federal damages
remedy for the violation of the rights guaranteed by § 1981
when the claim is pressed against a state actor.” Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 735 (1989). In Jett, the U.S.
Supreme Court rejected a § 1981 damages claim against a
municipality that was based on a respondeat superior theory.
Id. at 735-36. The Jett Court left open the possibility of a
§ 1983 claim against a municipality predicated on a statutory
right established in § 1981, but only if the claim was based on
the theory articulated in Monell v. New York City Department
of Social Services, 436 U.S. 658 (1978). See Jett, 491 U.S. at
736. We acknowledged this possibility in McGovern v. City of
Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009). To spell it out:
A Monell theory against a municipality “arising under § 1981,”
id., is a § 1983 claim relying on a Monell theory predicated on
a violation of one of the rights established in § 1981. Plaintiff’s
§ 1981 claim is structured differently, and fatally so.
Therefore, we will affirm this aspect of the District Court’s
ruling.

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27
VI.
For the foregoing reasons, we will reverse the judgment of
the District Court as to Plaintiff’s NJLAD and § 1983 claims,
affirm as to the § 1981 claim, and remand for proceedings
consistent with this opinion.
Counsel for Appellant
Dylan T. Hastings [Argued]
Williams Cedar
Counsel for Appellees
John L. Shahdanian, II [Argued]
Zachary S. Poreman
Trenk Isabel Siddiqi & Shahdanian

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1
Massey v. Borough of Bergenfield, et al., No. 24-2761
BOVE, Circuit Judge, concurring.
I write to point out an additional reason that the New
Jersey leg of courts’ “problematic detour” with the
Background Circumstances Rule should end. Iadimarco v.
Runyon, 190 F.3d 151, 162 (3d Cir. 1999).1 The Rule is a
discriminatory application of New Jersey’s facially neutral
Law Against Discrimination (NJLAD). Thus, the Rule
“plainly” violates the Equal Protection Clause. Ames v. Ohio
Dep’t of Youth Servs., 605 U.S. 303, 314 n.1 (2025) (Thomas,
J., concurring).
I.
The “central mandate” of the Equal Protection Clause is
“racial neutrality in governmental decisionmaking.” Miller v.
Johnson, 515 U.S. 900, 904 (1995). The Clause “‘cannot mean
one thing when applied to one individual and something else
when applied to another.’” Ames, 605 U.S. at 314 n.1
(Thomas, J., concurring) (quoting Students for Fair
Admissions, Inc. v. President & Fellows of Harvard Coll.
(Harvard), 600 U.S. 181, 206 (2023)). “One of the principal
reasons race is treated as a forbidden classification is that it
demeans the dignity and worth of a person to be judged by
ancestry instead of by his or her own merit and essential
qualities.” Rice v. Cayetano, 528 U.S. 495, 517 (2000). This
logic holds firm even where the rule at issue was established
“for a ‘beneficial’ or ‘laudable’ purpose.” Pryor v. NCAA, 288
1 Unless otherwise indicated, case quotations omit all internal
citations, quotation marks, footnotes, alterations, and
subsequent history.

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2
F.3d 548, 567 (3d Cir. 2002). The Constitution requires
“[m]ore than good motives.” Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 226 (1995).
Faithful adherence to these principles leaves no doubt
that New Jersey’s Background Circumstances Rule operates in
a racially discriminatory manner. The judge-made Rule takes
a “facially neutral law” and applies it to litigants “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. Pa. v. Ctrs.
for Medicare & Medicaid Servs., 693 F.3d 359, 363 (3d Cir.
2012) (“Selective discriminatory enforcement of a facially
valid law is unconstitutional under the Equal Protection
Clause . . . .”). As such, the Rule “embod[ies] stereotypes that
treat individuals as the product of their race, evaluating their
thoughts and efforts—their very worth as citizens—according
to a criterion barred to the Government by history and the
Constitution.” Miller, 515 U.S. at 912.
“[G]overnment-sponsored racial discrimination based
on benign prejudice is just as noxious as discrimination
inspired by malicious prejudice.” Adarand Constructors, 515
U.S. at 241 (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. Antonelli v. New Jersey,
419 F.3d 267, 274 (3d Cir. 2005) (emphasis added). Under the
Background Circumstances Rule, the NJLAD provides
expansive protection to “persons usually discriminated against
in the work place,” but less protection to other individuals
because of their membership in a so-called “generally favored
group.” Erickson v. Marsh & McLennan Co., 569 A.2d 793,
799 (N.J. 1990). The New Jersey courts have been clear that

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3
the Rule imposes a “heightened” and “heavy” burden on
certain NJLAD plaintiffs because 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, 2014 WL
1281516, at *12 (N.J. App. Div. 2014) (although white
plaintiff “may have established a prima facie case of
retaliation” he failed to meet his “heavy” burden because he
“offered no background circumstances” evidence).
“[W]ell-intentioned or not, express or neutral on its
face, a law or policy that purposefully discriminates on account
of race is presumptively invalid and can survive only if it
withstands strict scrutiny review.” Pryor, 288 F.3d at 566; see
also Pemberthy v. Beyer, 19 F.3d 857, 871 n.19 (3d Cir.
1994) (“[A]ll racial classifications require strict scrutiny
regardless of whether they favor or disfavor the members of
any particular group.”). Under that standard, judicial
“acceptance of race-based state action has been rare” because
“[d]istinctions between citizens solely because of their
ancestry are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality.”
Harvard, 600 U.S. at 208.
The Background Circumstances Rule’s discrimination
lacks an “extraordinary justification.” Doe, 665 F.3d at 545.
The NJLAD all but confirms that such a justification does not
exist. In addition to the categorical prohibition on
discrimination against “any” person, the text of the NJLAD
includes a legislative finding that “discrimination against any
of [New Jersey’s] inhabitants . . . menaces the institutions and
foundation of a free democratic State.” N.J. Stat. Ann.
§§ 10:5-3, 10:5-12(a) (emphasis added). It is difficult to
conceive of an unstated justification for “menacing” New

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4
Jersey’s “institutions and foundation” by applying the NJLAD
in a discriminatory manner based on the Rule.
When given an opportunity at argument to proffer a
justification for the Background Circumstances Rule, similar
to the attorneys for Ohio in Ames, Defendants’ counsel offered
no valid “justification for imposing a heightened evidentiary
standard on majority-group plaintiffs.” 605 U.S. at 311.
Generalized concerns about societal discrimination are not
enough. See Thompson v. Henderson, 143 S. Ct. 2412, 2413-
14 (2023) (Alito, J., respecting the denial of certiorari) (citing
Harvard, 600 U.S. at 207); Adarand Constructors, 515 U.S. at
239 (Scalia, J., concurring in part and concurring in the
judgment) (“In my view, government can never have a
‘compelling interest’ in discriminating on the basis of race in
order to ‘make up’ for past racial discrimination in the opposite
direction.”). That is particularly true where, as here, expressed
concerns about past societal discrimination are divorced from
a finding that a New Jersey institution is culpable in that
conduct. See Lomack v. City of Newark, 463 F.3d 303, 307 (3d
Cir. 2006) (“[R]ace-based preferences cannot be justified by
reference to past ‘societal’ discrimination in which the
municipality played no material role.”). The Constitution does
not permit enforcement of “shifting preferences based on
inherently unmeasurable claims of past wrongs.” City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 506 (1989).
Even if there was an interest sufficient to warrant the
racial discrimination at issue, the Background Circumstances
Rule is not “‘narrowly 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 New Jersey was trying to address the fact
that McDonnell Douglas made status in a “protected class” an

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5
element of a prima facie discrimination claim. See Erickson,
569 A.2d at 799. In response, New Jersey joined the effort by
other federal courts to “‘cram’ the ‘reverse discrimination’
cases into the McDonnell Douglas framework.” Iadimarco,
190 F.3d at 158. The resulting 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 applying the NJLAD in
this setting. See Iadimarco, 190 F.3d at 161 (“[A]ll that should
be required to establish a prima facie case in the context of
‘reverse discrimination’ is for the plaintiff to present sufficient
evidence to allow a fact finder to conclude that the employer is
treating some people less favorably than others based upon a
trait that is protected under Title VII.”). The 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. Nevertheless, the
court chose not to modify the McDonnell Douglas prima facie
case, and “there does not appear to have been any
consideration” of the type of option we subsequently adopted
in Iadimarco. Croson, 488 U.S. at 507.
An additional tailoring defect arises from the fact that
the racial and other categories necessary to draw the
discriminatory lines contemplated by the Background
Circumstances Rule “tend to be overbroad and imprecise in
many ways.” Ames, 605 U.S. at 316 (Thomas, J., concurring).
The Rule’s application turns on the concept of a “majority,”
but offers no guidance on the appropriate geographic
boundaries for doing that math. On this issue, Defendants’
counsel claimed at argument—implausibly—that the
appropriate geographic unit for defining the “majority” when
applying the Rule was not Bergenfield, or Bergen County, or

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6
even “the limited window of the State of New Jersey.” Oral
Argument Audio at 20:40. “We have never approved the
extrapolation of discrimination in one jurisdiction from the
experience of another.” Croson, 488 U.S. at 505.
The Background Circumstances Rule also relies on
assumptions about an “unusual employer” that are counter to
reality and 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 unusual
for employers to discriminate against the majority . . . .”); see
also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
78 (1998) (“Because of the many facets of human motivation,
it would be unwise to presume as a matter of law that human
beings of one definable group will not discriminate against
other members of their group.”). This is illustrated by the fact
that, in Harvard, “self-proclaimed ‘Major American Business
Enterprises’ filed a vehement amicus brief” advocating for the
form of discrimination that the Court ultimately prohibited.
Smyer v. Kroger Ltd. P’ship I, 2024 WL 1007116, at *7 (6th
Cir. 2024) (Boggs, J., concurring); see also Preston v. Wis.
Health Fund, 397 F.3d 539, 542 (7th Cir. 2005) (explaining
that “situations have been identified” where companies “are
under pressure from affirmative action plans”). The fact that
the “unusual employer” premise no longer holds is another
reason why the Rule is not necessary in the strict-scrutiny
sense.
* * *
In plain terms: “racial discrimination is nearly always
irrational.” Pryor, 288 F.3d at 566. This criticism strikes a
fierce blow to the Background Circumstances Rule. The Rule

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7
cannot survive strict scrutiny because it is unjustified and
untailored. So the Rule violates the Equal Protection Clause.
II.
Our panel opinion applies binding precedents strewn
along a winding road of judge-made rules starting with Erie,
which some have said was “obviously, laughably, friendlessly
wrong.” Stanford ex rel. Phillips v. Brandon Nursing &
Rehab. Ctr., LLC (Stanford), 160 F.4th 118, 129 (5th Cir.
2025) (Oldham, J., dissenting). An Erie prediction 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. Defreitas, 29 F.4th 135,
141 (3d Cir. 2022). We were required to perform a bit of a
hybrid analysis, however, because New Jersey courts have
spent more than 45 years looking to McDonnell Douglas and
related federal caselaw when applying the NJLAD. See, e.g.,
Peper v. Princeton Univ. Bd. of Trs., 389 A.2d 465, 479 (N.J.
1978). That challenged the application of “Erie’s deeply
ahistorical premise that federal judges are custodians of federal
law, while state judges are custodians of state law—and never
the twain shall meet.” Stanford, 160 F.4th at 133 (Oldham, J.,
dissenting).
The twain met here. The custodial duties overlapped.
The District Court was required to apply state law interpreting
a federal test, McDonnell 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 limited value
even in its native waters,” often inviting “confusion and
complexities.” Walton v. Powell, 821 F.3d 1204, 1210 (10th
Cir. 2016) (Gorsuch, J.). This “confusion arises” in an acute
manner when “attempting to apply the McDonnell Douglas

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8
burden-shifting framework” in “reverse discrimination” cases.
Iadimarco, 190 F.3d at 158. Here, the challenges the District
Court was forced to grapple with also include the fact that the
“intermediate evidentiary burdens” of McDonnell Douglas
isolate evidence into unnatural buckets that are difficult to
differentiate and in tension with the text of Rule 56. Texas
Dep’t of Cmty. Affairs v. Burdine, 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 intentionally discriminated
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 litigants and the court
down a rabbit hole that obfuscates the plaintiff’s affirmative
claim.”).
The Equal Protection Clause cuts through the vortex of
binding judicial contrivances—Erie, McDonnell Douglas, and
the Background Circumstances Rule—that swirled around this
appeal. See Hollis v. Morgan State Univ., 153 F.4th 369, 387-
88 (4th Cir. 2025) (Quattlebaum, J., concurring) (“When
someone says, ‘watch this, hold my beer,’ what follows rarely
turns out well. The same is true when judges make up tests
inconsistent with the statutory text that Congress enacted.”).
While our prediction about how the Supreme Court of New
Jersey would apply Ames to the NJLAD is based exclusively
on the considerations set forth in the panel opinion, I do not
believe the Constitution permits any other conclusion.

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