PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 23-3265 _______________

ALEXANDER SMITH, Appellant

v.

CITY OF ATLANTIC CITY; SCOTT EVANS, as Chief of the Atlantic City Fire Department; THOMAS J. CULLENY, JR., Deputy Chief of the Atlantic City Fire Department _______________

On Appeal from the United States District Court for the District of New Jersey (No. 1:19-cv-06865) District Judge: Honorable Christine P. O’Hearn _______________

Argued: October 30, 2024

Before: CHAGARES, Chief Judge, PORTER, and CHUNG, Circuit Judges.

(Filed: May 30, 2025)

Rebecca R. Dummermuth Kayla A. Toney [Argued] First Liberty Institute 1331 Pennsylvania Avenue NW Suite 1410 Washington, DC 20004

Jeffrey C. Mateer David J. Hacker First Liberty Institute 2001 W Plano Parkway Suite 1600 Plano, TX 75075

Parker W. Knight, III Joshua C. McDaniel Harvard Law School Religious Freedom Clinic 6 Everett Street Suite 5110 Cambridge, MA 02138

Kathryn F. Mahoney Harvard Law School Religious Freedom Clinic 216 5th Street 2nd Floor Leominster, MA 01453 Counsel for Appellant Alexander Smith

Nicholas Delgaudio Cleary Giacobbe Alfieri & Jacobs 955 State Route 34 Suite 200 Matawan, NJ 07747

2 Ruby Kumar-Thompson [Argued] Cleary Giacobbe Alfieri & Jacobs 169 Ramapo Valley Road Upper Level 105 Oakland, NJ 07436 Counsel for Appellees City of Atlantic City, Scott Evans, and Thomas J. Culleny, Jr.

Brian P. Morrissey Aaron P. Haviland Drew K. Cypher Mikayla Culbertson Sidley Austin LLP 1501 K Street NW Washington, DC 20005

Nicholas Reaves Yale Law School Free Exercise Clinic 1919 Pennsylvania Avenue NW Suite 400 Washington, D.C. 20006 Counsel for Amicus Curiae National Council of Young Israel, The Aleph Institute, The Sikh American Veter- ans Alliance, and Rabbi Jacob Goldstein in Support of Appellant

Natalie C. Rhoads Liberty University School of Law 1971 University Boulevard Lynchburg, VA 24515

3 Counsel for Amicus Curiae Rodney D. Chrisman, Rena M. Lindevaldsen, David McGinley, Natalie C. Rhoads, Erik Stanley, and Scott E. Thompson in Support of Ap- pellant

Justin Aimonetti Dechert LLP 1900 K Street NW Washington, DC 20006

Michael H. McGinley Dechert LLP 2929 Arch Street 18th Floor, Cira Centre Philadelphia, PA 19104

Steven T. McFarland Christian Legal Society 8001 Braddock Road Suite 302 Springfield, VA 22151 Counsel for Amicus Curiae Christian Legal Society and National Association of Evangelicals in Support of Appellant

Nicholas M. Bruno Beck Redden LLP 1221 McKinney Street Suite 4500 Houston, TX 77010 Counsel for Amicus Curiae Coalition for Jewish Val- ues, American Hindu Coalition, and Jewish Coalition for Religious Liberty in Support of Appellant

4 Robert K. Kelner Eli Nachmany Covington & Burling LLP 850 10th Street NW One City Center Washington, DC 20001 Counsel for Amicus Curiae Firefighters and Paramed- ics Calvert Potter, Steven Chasin, Jasper Sterling, and Hassan Umrani in Support of Appellant

Jeremy B. Rosen Horvitz & Levy LLP 505 Sansome Street Suite 1550 San Francisco, CA 94111

Scott P. Dixler Jasjaap S. Sidhu Horvitz & Levy LLP 3601 W Olive Avenue 8th Floor Burbank, CA 91505 Counsel for Amicus Curiae Appellants The Sikh Coali- tion and Islam and Religious Freedom Action Team in Support of Appellant

5 _______________

OPINION OF THE COURT _______________

PORTER, Circuit Judge, delivers the opinion of the Court as to Parts I, II, III.B., and III.D by a unanimous decision of the merits panel and as to parts III.A and III.E joined by CHA- GARES, Chief Judge. CHUNG, Circuit Judge, delivers the opinion of the Court as to part III.C joined by CHAGARES, Chief Judge.

Alexander Smith is a Christian who works for the Atlantic City Fire Department. The City prohibits Smith from growing a beard of any length, contrary to his religious beliefs. After the City denied his accommodation, Smith sued alleging vio- lations of the Free Exercise Clause, the Equal Protection Clause, and Title VII’s accommodation and anti-retaliation provisions. The District Court denied Smith’s motion for a pre- liminary injunction. Following discovery, it granted summary judgment for the City on all four claims. We will vacate the District Court’s judgment as to Smith’s Title VII accommoda- tion claim and free-exercise claim but will affirm on the equal protection claim and the Title VII retaliation claim. We will also reverse the denial of Smith’s motion for a preliminary in- junction.

I

A

Firefighters engaged in fire suppression face danger from smoke and fume inhalation. The City protects its firefighters by requiring them to don air masks in “hazardous” and

6 “confined” spaces. J.A. 73. These “self-contained breathing apparatuses,” or “SCBAs,” form a seal on the firefighter’s face to keep out hazardous air and pump in clean air. The SCBA works when the seal becomes damaged or loose, but the supply of clean air depletes faster.

To ensure that firefighters have properly sealed SCBAs, the City has strict grooming standards. Men can have neatly trimmed sideburns and mustaches, but they cannot wear beards or goatees. They must “be clean shaven while on duty,” though off-duty firefighters need not be clean-shaven if called to duty during an emergency. J.A. 71. But “[i]n no case shall facial hair, including stubble, inhibit the seal of the [SCBA].” Id. The City has two exceptions to the policy. First, captains may per- mit firefighters “to deviate” from the policy (as it relates to the requirement to wear an SCBA) but they are personally “re- sponsib[le] for the results of any deviation.” J.A. 73. Second, as an informal matter, “administrative employees like . . . Smith and the Fire Chief were not scheduled” for fit tests even though they are firefighters and thus subject to the same policy. Appellant’s Br. 11.

Smith is classified as a firefighter. He was hired as one, he is on the firefighters’ retirement plan, and he is covered by the firefighters’ union bargaining agreement. But Smith has not fought a fire since 2015. He has not been fit tested for an SCBA since then, either.

That is because Smith works as an Air Mask Technician. He maintains the SCBAs and fills and refills them with air for firefighters on scene. When he is on scene, Smith is required to position himself away from the smoke and fumes so that firefighters can safely remove their SCBAs and switch air tanks. It is a critical role: Smith is the City’s “only assigned Air

7 Mask Technician.” Appellant’s Br. 7. Without him, his com- rades could not safely enter buildings or engage in up-close fire suppression. Because of this, the City has ordered Smith to stop engaging in fire suppression so that he can man the Air Truck Unit. The City has no procedure that would enable someone else to man the Unit in his absence.1

The City has other protocols that insulate Smith from fire suppression duties. When a fire is “serious,” the City relies on a Rescue Intervention Team whose role is to “rescu[e] injured firefighters.” J.A. 278–79. The company on scene can also call “second and third due companies [who] are deployed to the scene of the fire to back up the initial responding” team. J.A. 307. When this is insufficient, the City can summon some or all of its personnel on an emergency call-back. During Smith’s time with the City, these calls have happened at a rate of about once or twice per year. Lastly, the City can call on neighboring towns to supply manpower to support an emergency response.

B

Smith believes men should grow and maintain beards based on the teachings of Holy Scripture and early Christian theolo- gians. Beards, Smith says, emulate Jesus Christ and the biblical prophets; they are symbols of masculinity, maturity, and man’s natural role as “head and leader.” J.A. 186–88.2 Smith began

1 The City also has “a handful” of employees trained as Air Mask Technicians who are not assigned to that role. J.A. 654. 2 “[B]eards . . . were once serious, symbolic matters” that pitted Christian theologians against one another during antiquity, the Great Schism of 1054, and the Protestant Reformation. Ted

8 to grow a beard in December 2018 and submitted an accom- modation request the next month asking that he “continue to wear [his] beard.” J.A. 173. He did not offer any compromises regarding length but did not insist his request was all-or-noth- ing, either. The City never discussed with Smith whether cer- tain compromises or alternative accommodations would satisfy his request. While he waited for an answer, the City barred Smith from responding to fires. One of Smith’s captains also “questioned” Smith “about [his] beard and repeatedly told” him to shave. J.A. 231. Eventually, Smith was called into a meeting with Chief Evans and Deputy Chief Culleny, who handed Smith a letter denying his request and ordering him to shave. Evans and Culleny told Smith they would “immediately suspend him without pay” if he did not comply. J.A. 672.

C

Smith sued. The District Court denied Smith’s motion for a preliminary injunction, finding that none of his four claims were likely to succeed on the merits. While discovery was un- derway, the remnants of Hurricane Isaias struck Atlantic City. The City ordered Smith to engage in fire suppression, even though its own policy (prior to and during litigation) barred Smith from doing so and the City had not attempted to call for mutual aid. This was the first time in at least thirty-one years that the City ordered an Air Mask Technician to fight a fire. The City now admits that there were no fires at all on that day

Olsen, The Wars Over Christian Beards, Christianity Today (Sept. 2013), https://perma.cc/LT7X-5QQN. We take no posi- tion on that debate: “Courts are not arbiters of scriptural inter- pretation” or any other theological dispute. Thomas v. Rev. Bd. of Ind. Emp. Sec. Div.,

(1981).

9 and that firefighters did not have to don their SCBAs. Smith refused to fight the fire. Years had passed since he had been trained for fire suppression, so Smith claims he would have en- dangered his own life and that of his comrades by complying with the order.3 Despite claiming all hands were called in that day, the City now says that it called another firefighter to re- spond in his stead. The City charged Smith with insubordina- tion and suspended him for forty days, including twenty with- out pay. A year after the incident, the State of New Jersey sanc- tioned the City for deploying firefighters without quarterly training.

The City moved for summary judgment. The District Court granted the City’s motion and Smith timely appealed.

II

The District Court had jurisdiction under

. We have jurisdiction under § 1291. We conduct plenary review for an appeal of a summary judgment. Bruni v. City of Pitts- burgh,

, 82 (3d Cir. 2019). We review the denial of a motion for a preliminary injunction for abuse of discretion. Free Speech Coal. v. Att’y Gen.,

, 430 (3d Cir. 2020).

III

A

3 Chief Culleny offers a different version of events: he says Smith refused to respond because “his attorney advised him not to work in the line and that it was against his settlement agree- ment and would affect his pay.” J.A. 613.

10 We begin with Smith’s claim for relief under the Free Ex- ercise Clause. Religious liberty is “our first freedom.” Roman Cath. Diocese of Brooklyn v. Cuomo,

, 23 (2020) (Gorsuch, J., concurring); see Michael W. McConnell, Why Is Religious Liberty the “First Freedom”?,

(2000). Contemporary free-exercise doctrine is guided by the Supreme Court’s decision in Employment Division v. Smith,

(1990) and its progeny. Smith provides that “the right of free exercise does not relieve an individual of the obligation to comply with a . . . neutral law of general ap- plicability.”

(internal quotation marks omitted). Such laws do not contravene the Free Exercise Clause and are sub- ject to rational basis review. Tenafly Eruv Ass’n, Inc. v. Bor- ough of Tenafly,

, 165 (3d Cir. 2002).

1

We need not decide whether the City’s policy is neutral. Even a neutral law will fail general applicability, and thus fall within the Free Exercise Clause, if it “ ‘invite[s]’ the govern- ment to consider the particular reasons for a person’s conduct.” Fulton v. City of Philadelphia,

, 533 (quoting Smith,

) (alteration in original). This can happen through one of three means. First, the government action enu- merates an exception to the challenged policy. Fraternal Ord. of Police v. City of Newark,

(3d Cir. 1999). Second, the government “creat[es] . . . a formal mechanism for granting exceptions . . . regardless of whether any exceptions have been given.” Fulton, 593 U.S. at 537. Third, the govern- ment does not provide enumerated or formal exceptions to the challenged act but grants them as a matter of practice. See Tenafly, 309 F.3d at 167–69 (facially neutral and generally ap- plicable law was enforced in non-neutral manner).

11 Not just any exception will do. General applicability also requires a relevant comparator; that is, a real or hypothetical application of an existing government exception that would “undermine the [government’s] interest.” Fraternal Ord.,

. Thus, in Fraternal Order, Newark’s policy of per- mitting undercover officers to grow beards did not undermine the city’s interest in “esprit de corps,” because those officers “obviously [were] not held out to the public as law enforcement person[nel].”

(citation omitted) (second alteration in origi- nal). Likewise, we noted, Oregon’s “prescription exception to [its] drug law” in Smith “d[id] not necessarily undermine Ore- gon’s interest in curbing the unregulated use of dangerous drugs” like peyote.

But Newark still failed general applica- bility: it undermined the esprit de corps by permitting beat cops, who are held out to be police officers, to grow beards for medical reasons.

The City has an interest in protecting firefighters from haz- ardous air, specifically “when operating in or around . . . at- mosphere[s] that [are] hazardous,” that are “suspected of being hazardous,” that “may rapidly become hazardous,” or when “working below ground level [or] . . . in confined spaces.” J.A. 73. So the rule will fail general applicability if that interest is or could be undermined by the City’s grooming regime’s ex- ceptions.

The specific, enumerated exceptions to the grooming re- gime do not undermine general applicability. While firefight- ers may sport five o’clock shadows when they are called in for an emergency, or grow out neatly trimmed mustaches and side- burns, these do not interfere with the SCBA. Indeed, the text of the policy provides, “[i]n no case shall facial hair . . . inhibit the seal of the [SCBA].” J.A. 71. Whether a chinstrap, goatee, or General Burnside’s sideburns, no firefighter may wear any

12 form of facial hair that would undermine the City’s interest un- der these rules.

But two exceptions—one practical exception and one dis- cretionary regime—render the City’s policy not generally ap- plicable. First, the City has long permitted administrative staff, all of whom are firefighters subject to the SCBA rule, to forgo fit testing. Fit testing “ensure[s] they can wear the SCBA mask with a proper seal,” Appellee’s Br. 36, and “[fifteen] to [twenty] masks fail the tests every year from normal wear and tear.” Appellant’s Br. 57 (citing J.A. 303). Like the grooming policy, the fit-testing requirement implicates the City’s interest in ensuring proper mask fit and a safe supply of oxygen to fire- fighters. In failing to subject administrative employees to fit testing, the City has permitted certain kinds of conduct that un- dermine its interest while disfavoring religious conduct under- mining the same interest. That fails general applicability.

Second, the City’s grooming regime has built-in discretion. Captains may “deviate” from the SCBA policy and permit any sort of conduct as long as they “bear[] full responsibility for the results of any deviation.” J.A. 73. We have no record con- firming whether an exception has been granted by a captain under this rule, but we need none. The mere creation of an ex- ception mechanism that permits undermining the City’s inter- est destroys general applicability. Fulton, 593 U.S. at 537.

The City objects that its grooming policy complies with state and federal regulations, so a religious exemption here would subject the City to liability under both provisions. Ap- pellee’s Br. 17 (citing

; N.J.A.C. § 12:100-10.10). That argument suggests a rule that is not gen- erally applicable on its face is generally applicable, after all,

13 when it complies with an overriding state or federal law which is itself allegedly neutral and generally applicable.

We reject the City’s multi-layered theory of free exercise. Fulton mandates a simple rule: “The creation of a formal mech- anism for granting exceptions renders a policy not generally applicable . . . because it ‘invite[s]’ the government to decide which reasons for not complying with the policy are worthy of solicitude.” 593 U.S. at 537 (quoting Smith,

). There is no state or federal regulatory exception. “If then the courts are to regard the constitution; and the constitution is su- perior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” Marbury v. Madison,

(1803). In other words, the City’s policy, the state regulation, and the federal regulation all necessarily yield to the Constitu- tion. U.S. Const. art. VI, cl. 2.

In her dissent, Judge Chung argues that the City’s formal and informal exceptions are exceptions to the SCBA require- ment but not the grooming regime itself. But the City flatly states the grooming regime exists “[t]o ensure the proper fit of SCBAs.” Appellee’s Br. 6. The SCBA policy requires “[t]he standardized use of the SCBA,” and grooming is required to ensure standardized mask fit. J.A. 73. Smith asserts the cap- tain’s discretion rule governs the grooming requirements and the City has never said otherwise.

Judge Chung’s reliance on Spivack and Lukumi is mis- placed. Spivack concerned an old policy that gave the govern- ment “significant discretion,” and a superseding policy “which eliminated the religious exemption altogether.” Spivack v. City of Philadelphia,

, 172 (3d Cir. 2024). The ques- tion was indeed about “which policy was at issue,” Judge

14 Chung Op. Diss. 6, because—unlike here—it was possible for only one of the policies to apply. In Lukumi, the Court did not consider different ordinances in isolation from each other, but analyzed them collectively to determine their shared interests and the impact the exemptions had on those collective inter- ests. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

(1993) (“[the] Ordinances . . . advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends.”). Besides, to allow the City to divvy up its exemption regimes provision-by-provision would permit governments to subvert free exercise through clever drafting. We decline that ap- proach.

2

Because the City’s policy is not generally applicable, it is subject to the scrutiny of the Free Exercise Clause. The parties disagree, however, as to whether that scrutiny is intermediate or strict. Smith says strict scrutiny applies, but the City asserts that neutral yet not generally applicable laws “can only reach intermediate scrutiny.” Appellee’s Br. 14. The District Court, more narrowly, applied that rule to “the public employment context” alone. J.A. 10. The District Court reached this conclu- sion relying on dicta in Tenafly describing Fraternal Order as applying intermediate scrutiny in light of “a government’s need to function efficiently.” J.A. 9 (quoting Tenafly, 309 F.3d at 166 n.27).

Our case law has been inconsistent on this point. In Frater- nal Order, we “assume[d]” intermediate scrutiny applied to the public employment context, though we did not adopt it.

n.7. Tenafly merely repeated that assumption in dicta and added support for the argument. 309 F.3d at 166 n.27.

15 And in Blackhawk v. Pennsylvania, then-Judge Alito as- serted—also in dicta—that Fraternal Order “applied strict scrutiny.”

, 208 (3d Cir. 2004) (citing Fraternal Ord., 170 F.3d at 366–67).

Strict scrutiny is the appropriate standard in all free-exer- cise cases failing either Smith’s neutrality requirement or its general-applicability requirement. On only one occasion in the past fifty years has the Supreme Court applied intermediate scrutiny to a free-exercise claim, and that was in the military context. Goldman v. Weinberger,

(1986). Con- gress abrogated that narrow exception; strict scrutiny now ap- plies universally. See Singh v. Berger,

(D.C. Cir. 2022) (applying strict scrutiny to military case). It applies for good reason: there is concern that our current Free Exercise Clause jurisprudence is too weak and is “lone among the First Amendment freedoms” in its weaknesses. Fulton, 593 U.S. at 543 (Barrett, J., concurring). To apply a standard less than strict scrutiny would falsely suggest that freedom of religion is “a second-class right, subject to an entirely different” and weaker “body of rules than the other Bill of Rights guarantees.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

, 70 (2022) (quoting McDonald v. City of Chicago,

(2010)).

The Supreme Court has firmly taken the side of strict scru- tiny. In Tandon v. Newsom, the Court embraced strict scrutiny as the general rule of review for laws failing Smith.

, 62 (2021). And in Kennedy v. Bremerton School District, the Court extended that rule to a public employment case in- volving “policies [that] were neither neutral nor generally ap- plicable.”

, 526 (2022). The Court discerned no distinction between partial and neutral laws, or the targeting of government employees versus private-sector workers. It

16 applied strict scrutiny, the one standard to rule all Free Exercise Clause claims not governed by Smith.

3

“A government policy can survive strict scrutiny only if it advances ‘interests of the highest order’ and is narrowly tai- lored to achieve those interests.” Fulton, 593 U.S. at 541 (quot- ing Lukumi,

) (internal quotation marks omit- ted). That interest cannot be asserted “at a high level of gener- ality.”

Instead, the government interest must be reviewed in light of “the asserted harm of granting specific exemptions to particular religious claimants.”

(quoting Gonzales v. O Cen- tro Espírita Beneficente União do Vegetal,

, 430– 32 (2006)).

The City asserts a generic safety interest.4 But we can “properly narrow[]” and then review.

Occasionally, the City “lack[s] . . . available firefighters” or has “an overwhelming amount of fire calls.” Appellee’s Br. 4. Either scenario could require Smith to respond in a fire suppression capacity. Should that occur, and should his accommodation be granted, there is a risk that Smith’s facial hair would interfere with the SCBA seal. A broken seal would “lead[] to a reduction in air tank time, which is a danger for firefighters.” Appellee’s Br. 16. Without an adequate supply of air, Smith might struggle to carry out his duties or become incapacitated. In the latter sce- nario, it could be necessary for the City to send its Rescue In- tervention Team to carry the gear-laden firefighter out from the

4 The City also argues that its need to comply with state and federal laws is sufficient justification to survive strict scrutiny. For the reasons above, we disagree.

17 conflagration. “[S]afety is undoubtedly an interest of the great- est importance,” and, as applied to Smith’s exemption request, it is sufficiently compelling. Fraternal Ord.,

.

But the City fails narrow tailoring. “[N]arrow tailoring re- quires the government to show that measures less restrictive of the First Amendment activity could not address its interest.” Tandon, 593 U.S. at 63. The City could remove Smith from fire suppression duty as it did before 2020 or reclassify him as a civilian who is not subject to the SCBA and grooming poli- cies. It could, as a simple fix, at least try and fit test Smith with facial hair to see if his facial hair, at any length, would interfere with the SCBA to a point that creates the risk of air leakage that the City fears. See Potter v. District of Columbia,

(D.D.C. 2005) (Muslim employee seeking ex- ception passed fit test with beard). There are likely more solu- tions than these three, but “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.” Fulton, 593 U.S. at 541. Because the policy fails strict scrutiny, we will vacate the District Court’s judgment.

B

We follow a two-part test for Smith’s Title VII accommo- dation claim. First, the claimant must limn a prima facie case showing (1) “a sincere religious belief that conflicts with a job requirement” and (2) that he “told the employer about the con- flict”; and (3) that he faced “discipline[] for failing to comply.” Wilkerson v. New Media Tech. Charter Sch. Inc.,

(3d Cir. 2008). Second, if the claimant succeeds, “the bur- den shifts to the employer to show” that accommodating the religious belief “would work an undue hardship upon the em- ployer.” Webb v. City of Philadelphia,

(3d Cir. 2009). The District Court and parties assume Smith

18 establishes a prima facie case, so we will turn to the undue hardship analysis.

The District Court concluded that, because the City “made a good-faith effort to reasonably accommodate” Smith, it was not liable regardless of undue hardship. J.A. 16 (quoting Webb,

). That is a misreading of Title VII and prece- dent. Search the text of the religious-accommodations clause, and the phrase ‘good faith’ is nowhere to be found. 42 U.S.C. § 2000e(j). There is no separate ‘good faith’ exception: a well- meaning employer can fail to accommodate, and a bad-faith employer can lack the ability to accommodate without undue hardship. Good faith, properly understood, is circumstantial evidence supporting the possibility that an employer complied with Title VII by offering an appropriate accommodation or is telling the truth when it claims that an accommodation would work undue hardship. See Shelton v. Univ. of Med. & Dentistry of N.J.,

, 224 (3d Cir. 2000) (citing Getz v. Penn- sylvania,

(3d Cir. 1986)) (implying good faith in case where accommodation was offered). In particular, our precedent indicates that an employer must consider an accom- modation request, and “not merely . . . assess the reasonable- ness of a particular possible accommodation.” Groff v. DeJoy,

(2023). Good faith is useful insofar that it shows an employer considered the claim, but could not accom- modate without undue hardship, or declined to consider any accommodation as futile due to the presence of undue hard- ship. But good faith is not by itself a cure for a Title VII breach. Once the claimant limns a prima facie case, “[the] employer . . . has a defense only if hardship is ‘undue.’ ”

(em- phasis added).

Under Groff, an employer shows an undue hardship if the accommodation would create a burden that is “substantial in

19 the overall context of the employer’s business.”

. “[A] hardship is more severe than a mere burden.”

. And “ ‘undue’ means that the requisite burden . . . must rise to an ‘excessive’ or ‘unjustifiable’ level.”

(citations omitted). Post-Groff, we may still evaluate “[b]oth economic and non- economic costs” as a source of undue hardship. Webb,

; Groff,

(“courts must apply the test in a manner that takes into account all relevant factors in the case at hand”). In all of this, our analysis is rooted in “common- sense” reasoning and a keen review of the facts. Groff,

.

No doubt, the City has an interest in preserving employee safety. Yet mere recitation of an interest does not establish un- due hardship. It is telling that no Air Mask Technician has been called to engage in fire suppression for several decades. As for the 2020 emergency call, Smith was ordered to report after the City breached several layers of protocol for an emergency that did not even require an SCBA. The City can only theorize a vanishingly small risk that Smith will be called in to engage in the sort of firefighting activities for which an SCBA is re- quired. There are no other personnel—whether administrators or active firefighters—who are seeking an accommodation re- lating to the SCBAs, so the risk that the City will be unable to respond to an emergency safely is all the more unlikely. On these facts, the City has not undisputably shown that Smith’s original request “to continue to wear [his] beard” would im- pose an undue hardship. J.A. 173. Accordingly, we will vacate the judgment on Smith’s Title VII accommodation claim.

C

Smith argues that the City violated Title VII by retaliating against him for requesting an exemption from the City’s

20 grooming policy. Courts must evaluate Title VII retaliation claims under a three-part framework. First the Plaintiff must make a prima facie showing that: “(1) [he] engaged in activity protected by Title VII; (2) the employer took an adverse em- ployment action against [him]; and (3) there was a causal con- nection between [his] participation in the protected activity and the adverse employment action.” See Moore v. City of Phila.,

, 340–41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll.,

(3d Cir. 1995)). If the Plaintiff makes this showing, the burden shifts to the employer to advance a “legitimate, non-retaliatory reason” for its conduct. Id. at 342 (quotation omitted). If the employer makes such a showing, the burden shifts back to the Plaintiff “to convince the factfinder both that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.” Id. (quotation omitted).

1

There is no genuine dispute that Smith has satisfied the first element of a prima facie retaliation case because he requested an accommodation, lodged a complaint with HR in furtherance of that request, and filed this lawsuit. All are activities pro- tected by Title VII.

2

We conclude that Smith satisfies the second requirement of a prima facie case. An adverse action must be “materially ad- verse[,]” such that it is “harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

(2006). Smith asserts a number of ad- verse actions which we address in turn.

21 Smith alleges that the City’s denial of his request for reli- gious exemption from the Grooming Standards is an adverse action. But the approval or denial of any accommodation re- quest, including Smith’s, is an anticipated part of the process. Accordingly, anyone entering the process, including Smith, does so knowing of the potential for denial. In other words, the potential for denial does not dissuade employees from seeking an accommodation. It follows that the realization of that known potential does not transform the denial into a dissuasive action. If we were to conclude that the denial of a request for accom- modation alone is an adverse employment action, then that prong of the prima facie test would be superfluous—every Ti- tle VII failure to accommodate claim would automatically end in an adverse employment action for purposes of a retaliation claim.

Smith also asserts that he suffered an adverse employment action when he was told to report to work clean shaven or be suspended. J.A. 210, 441. Ordering Smith to report to duty clean shaven and noting the normal disciplinary consequences for failing to do so, though, was consistent with, and was part of, the denial itself.

As we have noted above, a denial itself is not an adverse employment action.

Smith next alleges that the City failed to engage in an inter- active process with him when considering his request for ac- commodation. Appellant’s Br. at 40. Smith has forfeited this theory of adverse employment action because raising a new theory of adverse action on appeal is untimely. Tri-M Grp., LLC v. Sharp,

(3d Cir. 2011) (“It is axio- matic that arguments asserted for the first time on appeal are deemed to be [forfeited] and consequently are not susceptible

22 to review in this Court absent exceptional circumstances.” (in- ternal quotations omitted)).5

Finally, Smith asserts that he suffered an adverse action be- cause the City sent him to perform fire suppression in the trop- ical storm emergency without training and then suspended him when he did not follow orders.6 Dist. Ct. Dkt. No. 122 at 27– 28. Being ordered to respond to an emergency that could re- quire fire suppression, in the absence of up-to-date fire sup- pression training, could “dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington

5 Smith presents no argument for exceptional circumstances that would allow him to bring a new theory of adverse action on appeal. 6 Smith first asserted this adverse action in his opposition to summary judgment and appended an affidavit to support this theory of liability. Dist. Ct. Dkt. No. 122 at 27; No. 122-2 at 13. The District Court concluded this theory was “in complete contrast to his deposition testimony” and thus “insufficient to withstand a motion for summary judgment.” J.A. 22. It is true that Smith’s legal theory in opposing summary judgment con- tradicted his prior legal position at deposition in that it adds a new allegedly retaliatory action. Compare J.A. 413 (stating in deposition that the retaliatory action was limited to “just the request’s denial”) with Dist. Ct. Dkt. No. 122 at 27 (adding as retaliatory actions his tropical storm assignment and suspen- sion). This new legal theory is not based on any facts that con- tradict his deposition testimony and, in fact, relies on facts de- veloped therein. We therefore do not adopt the District Court’s reasoning and will consider this adverse employment action as- serted by Smith.

23 N.,

. Thus, we conclude that Smith has made out the second prong of a prima facie retaliation case as to this ac- tion.

3

Smith’s prima facie case fails at this prong as he does not create a genuine dispute that his protected activity caused the City to assign him to the tropical storm and then suspend him. As evidence of causation, Smith offered very little in his sum- mary judgment and appellate briefing, asserting in both with- out factual support or additional argument that causation can be inferred from the timing of the protective activity and the adverse actions.7 Appellant’s Br. at 40–41; Dist. Ct. Dkt. No. 122 at 25–28. This is insufficient to establish causation, as more than eighteen months had elapsed since Smith’s engage- ment in protected conduct and the tropical storm assignment. See Qin v. Vertex, Inc.,

, 477 (3d Cir. 2024) (“[t]he inference of ‘unduly suggestive’ proximity ‘begins to dissipate where there is a gap of three months or more.’ ” (in- ternal citations omitted)).

4

Even assuming Smith establishes a prima facie case, his re- taliation claim fails at the second and third step of the burden-

7 The District Court did not reach this issue but we may con- sider it as it was briefed in both that court and here and as the timing of these events is undisputed. See Blunt v. Lower Mer- ion Sch. Dist.,

(3d Cir. 2014) (“We may af- firm the District Court on any grounds supported by the record, even if the court did not rely on those grounds.” (cleaned up)).

24 shifting inquiry. If Smith had established a prima facie case of retaliation, the burden would then shift to the City to advance a “legitimate, non-retaliatory reason” for its conduct. Moore, 461 F.3d at 342 (quotation omitted). If the City makes such a showing, the burden shifts back to Smith “to convince the fact- finder both that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.” Id. (quotation omitted).

The City has offered a “legitimate, non-retaliatory reason” for calling Smith to respond to the tropical storm. Id. (quotation omitted). Specifically, the call volume for that emergency was so high that the City needed all firefighters to respond. The City argues that Smith’s suspension after the fire emergency, then, was due to Smith’s refusal of a direct order to respond to an emergency, rather than out of retaliation for his protected con- duct. We conclude that these are legitimate, non-retaliatory reasons for the emergency response assignment and Smith’s suspension.

At this stage in the burden-shifting inquiry, Smith’s retali- ation claim will survive if Smith demonstrates that the City’s “stated reason[s]” for its conduct are a “pretext.” McDonnell Douglas Corp. v. Green,

(1973). Smith ar- gues that the City could not have a public safety interest or need in ordering him to respond to the tropical storm because the City did not ensure he had received adequate fire suppression training. Smith does not dispute, however, that “all firefighters including administrative and prevention personnel, [] includ- ing Plaintiff, were called in for emergency response purposes, including to put the reserve apparatus in service due to the overwhelming call volume caused by a tropical storm.” J.A.

25 635–36. Nor does he meaningfully dispute8 that there were “stacked 911 calls,” “several structural collapse calls,” that the Deputy Chief had to “suspend medical calls” due to lack of manpower, that the City “didn’t have enough companies open to send a full response,” and that it “really needed Engine-23 [(Smith’s assigned engine)] to respond to several calls.” J.A. 389–90. While Smith’s lack of recent fire suppression training might call into question the wisdom of the City’s decision to mobilize him, it does not create a genuine dispute that the City’s stated need for all firefighters to respond “was false, and that retaliation was the real reason for the adverse employment action.” Moore, 461 F.3d at 342 (quoting Krouse v. Am. Steri- lizer Co.,

, 500–01 (3d Cir. 1997)); see also Fuentes v. Perskie,

(3d Cir. 1994) (to demon- strate pretext, “plaintiff cannot simply show that the em- ployer’s decision was wrong or mistaken, since the factual dis- pute at issue is whether discriminatory animus motivated by the employer, not whether the employer is wise, shrewd, pru- dent, or competent.”).

8 In his response to the Defendant’s Statement of Undisputed Material Facts, Smith disputes the “accuracy of the content of the memo” detailing these facts. J.A. 638. Nonetheless, he does not specify how any fact cited above is inaccurate, and does not cite any source which sets forth contrary facts. Id.; see Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly address an- other party’s assertion of fact as required by Rule 56(c), the court may: . . . (2) consider the fact undisputed for purposes of the [summary judgment] motion.”); Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely disputed must support the assertion by (A) citing to particular parts of mate- rials in the record[.]”).

26 Based on the foregoing, we will affirm the District Court’s grant of summary judgment as to the retaliation claim.

D

Smith next asserts a claim under the Equal Protection Clause. Smith must point to an existing and relevant compara- tor. That is because the Clause “proscribes unequal treatment only among persons similarly situated according to a relevant standard of comparison.” Stradford v. Sec. Pa. Dept. of Cor- rections,

, 74 (3d Cir. 2022). “Other factors explain- ing disparate treatment will usually preclude persons from be- ing similarly situated.”

As with the free-exercise inquiry, we identify comparators according to their impact on the City’s asserted interest. See DeHart v. Horn,

(3d Cir. 2004).

Smith compares himself to two groups: off-duty firefight- ers and other Air Mask Technicians. As to the first, Smith says that “[they] are . . . allowed to wear beards . . . [and] respond to emergencies with their beards” while he is not. Appellant’s Br. 61. That is inaccurate. The City’s guidelines permit some marginal facial hair growth, so long as the hair does not inter- fere with the SCBA. The uncontroverted testimony of Chief Evans is that any firefighter who comes to work with anything more than a five o’clock shadow is not allowed to fight fires. When Smith is called in from being off-duty, the same applies to him. See Williams v. Morton,

(3d Cir. 2003) (determining there was no unequal treatment between Jewish and Muslim prisoners because both received vegetarian religious meals). These men’s scruff do not implicate the City’s safety interest; Smith’s beard does, at least according to the policy. And although the City policy theoretically permits beards under the captains’ discretion rule and Title VII, the

27 City has never granted an exemption for one. As to these com- parators, Smith’s claim fails.

Smith’s comparison to the Air Mask Technicians of yester- year also fails. His argument rests on the assertion that because previous Air Mask Technicians were never called to suppress fires, and he was, this violated his rights. But all those men, and Smith, were and are designated firefighters. Smith con- tracted to perform these tasks as part of his job. A citizen’s right to equal protection is not violated just because his gov- ernment-employer orders him to fulfill a valid and agreed-upon term of employment. For these reasons, we will affirm the grant of summary judgment as to Smith’s Equal Protection Claim.

E

Finally, Smith asks us to reverse the denial of his motion for a preliminary injunction, which would “enjoin[]” the City “from taking any action adversely to affect . . . Smith’s em- ployment, title, status, responsibilities, privileges, compensa- tion, I.D. Card, and/or benefits or other perquisites as an em- ployee of the [City]” and to rescind his suspension. Dist. Ct. Dkt. No. 2-1, at 2. In other words, Smith asks to “enjoin[] the City from disciplining [him] for violating the [City’s] Groom- ing Policy, effectively allowing him to wear a beard during the pendency of this matter.” Appellee’s Br. 42.

Because we review the denial of a preliminary injunction for abuse of discretion, we will affirm unless the “decision rests on an incorrect legal standard, a clearly erroneous factual find- ing, or a misapplication of the law to the facts.” Free Speech Coal., 974 F.3d at 430 (quoting TD Bank N.A. v. Hill,

(3d Cir. 2019)). To secure a preliminary injunction,

28 Smith must show “(1) a likelihood of success on the merits; (2) that [he] will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to [the City]; and (4) that the public interest favors such relief.” Kos Pharms., Inc. v. Andrx Corp.,

(3d Cir. 2004) (citing Allegheny Energy, Inc. v. DQE Inc.,

(3d Cir. 1999)). In a case involving a gov- ernment defendant, the last two factors may be combined. Ro- man Cath. Diocese, 592 U.S. at 19–20.

Smith has a likelihood of success on the merits, because a plaintiff “need only prove a prima facie case.” Highmark, Inc. v. UPMC Health Plan, Inc.,

(3d Cir. 2001). Given the overlap between Smith’s free-exercise and Title VII accommodation claims, the latter of which require a prima fa- cie case, he meets the standard for relief. In rejecting these claims, the District Court abused its discretion in applying the incorrect legal standard to the free-exercise and accommoda- tion claims. Its decision pre-dated both Fulton and Groff, which clarified the landscape for the Free Exercise Clause and Title VII, respectively. Without Fulton, the District Court failed to consider that the mere presence of an exemption re- gime rendered the law not generally applicable. And without Groff, the District Court considered Smith’s accommodation claim under the outdated ‘de minimis’ standard of Trans World Airlines, Inc. v. Hardison,

(1997).

Smith prevails on the remaining factors. “The loss of First Amendment freedoms, for even minimal periods of time, un- questionably constitutes irreparable injury.” Roman Cath. Di- ocese, 592 U.S. at 19 (quoting Elrod v. Burns,

(1976) (plurality opinion)). And upon a “serious examina- tion of the need” to compel Smith to violate his faith, we cannot

29 see a public interest of such weight as to deny the most funda- mental of freedoms.

at 19–20.

* * *

For these reasons, we will vacate the judgment of the Dis- trict Court as to Smith’s Free Exercise Clause and Title VII accommodation claims, affirm as to Smith’s Equal Protection Clause and Title VII retaliation claims, and reverse as to the District Court’s denial of the preliminary injunction.

30 CHUNG, Circuit Judge.

I respectfully dissent and would affirm the District Court as to Smith’s Free Exercise claim.1

I. DISCUSSION

Smith sought a religious accommodation to wear a beard while on duty. This implicated paragraphs 5 and 6 of the City’s Operational Guideline entitled “Grooming Standards.” J.A. 71. These set forth that:

5. Members shall be clean shaven while on duty. Exception, those persons called in on an emergency call-back shall not be required to shave prior to arrival at the station or fire scene.

6. Beards and goatees of any type are specifically prohibited. In no case shall facial hair, including stubble, inhibit the seal of the air mask’s face piece. Facial hair of any type shall not interfere with the seal of SCBA face piece. No hair is permitted below the lower lip.

The exception set forth in paragraph 5 (“emergency exception”) is the only enumerated exception in the Grooming

1 Because I dissent in the Majority Opinion’s conclusion that a genuine dispute exists regarding Smith’s Free Exercise claim, I also dissent in the portion of the Majority Opinion addressing the preliminary injunction relating to that claim. Standards. The Grooming Standards provide no exception to paragraph 6 which prohibits facial hair that inhibits the seal of the SCBA.

A. The Grooming Standards are Generally Applicable

“A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by creating” a categorical exemption, or “a mechanism for individualized exemptions.” Fulton v. City of Philadelphia, Pennsylvania,

, 523 (2021); Tenafly, 309 F.3d at 166.

Smith proposes three individual exceptions to the grooming policy that he argues render it not generally applicable. The Majority Opinion concludes that the first individual exception asserted by Smith (the emergency exception) does not negate the general applicability of the Grooming Standards and I agree. Maj. Op. at 12–13.

Smith next asserts that the process for requesting an accommodation is an individual exception that undermines general applicability. The process Smith refers to is the employee complaint procedure, the mechanism by which the City employees may formally request accommodations. J.A. 196. The complaint procedure is not an enumerated exception to the Grooming Standards. As noted above, there is only one such exception and it does not undermine general applicability. Rather, the complaint procedure is a mechanism by which an employee can request an accommodation to any policy, including the Grooming Standards. As no facial hair accommodation to the Grooming Standards has ever been granted, it does not seem that the employee complaint

2 procedure provides for, or can be considered, an exception to that policy. See, e.g., J.A. 195 (denying medical accommodation to Grooming Standards).

Even assuming that the complaint procedure is an exception, Smith identifies nothing other than the fact that the process exists to support his argument. We have noted, though, that employers’ provision of a process by which employees can seek an accommodation is not per se the type of “mechanism for individualized exemptions,” Fulton, 593 U.S. at 523, that undermines general applicability. Spivack v. City of Philadelphia,

, 172 n.8 (3d Cir. 2024) (“The mere provision of a religious exemption does not itself trigger strict scrutiny.”). Here, all requests for accommodations to the Grooming Standards were denied and Smith offers nothing more to advance his argument. The City’s “mere provision of a religious exemption [mechanism],”

is insufficient here to establish that the Grooming Standards fail to “treat[] similar religious and secular behavior similarly.” Spivack, 109 F.4th at 176; compare id. at 172 (jury issue existed where employer “created, on paper” an apparently generally applicable mechanism for individualized exemptions, but where a jury could find that the employer “in practice … declined ‘to extend [it] to cases of religious hardship.’” (alteration in Spivack, quoting Fulton, 593 U.S. at 535)).

The Majority Opinion concludes that the last individual exception asserted by Smith, that captains have discretion to allow firefighters to deviate from wearing the SCBAs, as well as an exception relating to the fit-testing policy that Smith did

3 not raise in his challenge to the Grooming Standard’s general applicability,2 undermines general applicability.

I disagree because the identified exceptions are not exceptions to the Grooming Standards policy, but rather are exceptions to two different policies: the City’s Operational Guideline entitled “Respiratory Protective Program” and the City’s policy that firefighters be fit-tested annually for their SCBA.

The first exception cited in the Majority Opinion is that “the City has long permitted administrative staff, all of whom are firefighters subject to the SCBA rule, to forgo fit testing.” Maj. Op. at 13. The Grooming Standards do not require fit-testing, though. See generally J.A. 70-72. That requirement is set forth elsewhere.3 More importantly, the exception in no way permits firefighters to have facial hair that interferes with the SCBA seal and thus is not an exception to the Grooming Standards.

The second exception cited in the Majority Opinion is that “the City’s grooming regime has built-in discretion.” Maj. Op. at 13. As the Majority Opinion implicitly acknowledges, however, that discretion is not to be found in the Grooming Standards but rather the “SCBA policy.” Id., quoting J.A. 73, Respiratory Protective Program. That separate and different Guideline provision allows Captains and incident commanders

2 Smith discussed fit-testing requirements when arguing that the grooming policy was not neutral. Appellant’s Br. at 50. 3 It is unclear from the record whether there is a specific Operational Guideline that sets forth the frequency of testing, a PEOSH provision, or whether this is simply set forth as part of the Air Mask Technician’s duties.

4 to determine when and where an SCBA is required to be worn.4 As with the first exception, the exception does not permit firefighters to have facial hair that interferes with the SCBA seal and thus is not an exception to the Grooming Standards.

Because the exceptions cited by the Majority Opinion are not actually exceptions to the Grooming Standards,5 but to two separate and different policies, they cannot be grounds for

4 See J.A. 73 (requiring SCBA to be worn in hazardous atmospheres, atmospheres “suspected of being hazardous,” atmospheres that “may rapidly become hazardous,” “[w]hile working below ground level,” and “[w]hile working in confined spaces”); see J.A. 74 (requiring SCBA to be worn in other dangerous situations, such as “active fire area[s]” and “where toxic products are present, suspected of being present, or could be rapidly release without warning”) (emphasis in original). 5 The Majority Opinion concludes these are Grooming Standards exceptions by implicitly folding these two separate policies into the Grooming Standards and referring to them collectively as the “grooming regime.” Majority Op. at 12. There is no basis for this conflation. Smith did not ask for a religious accommodation to annual fit-testing nor to the Respiratory Protective Program. He simply seeks to wear a beard in accommodation of his religious beliefs, recognizes that it could implicate safety concerns, has no objection to wearing an SCBA, and has even fit-tested himself wearing an SCBA while bearded. See, e.g., J.A. 173-74, 290, 409, 667; and Appellant’s Br. at 38, J.A. 410 (noting that Smith would be willing to wear a quarter-inch-length beard to address the City’s safety concerns).

5 concluding that the Grooming Standards are not generally applicable. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah.,

, (1993) (concluding that each of four ordinances dealing with animal killing was not generally applicable based on exceptions in each individual ordinance that targeted religious animal sacrifice); Spivack, 109 F.4th at 178 (noting that on remand the jury must first decide which policy was at issue and then determine whether that particular policy provided for discretionary, individualized exemptions); Fulton, 593 U.S. at 537 (ensuring that an exception to the challenged policy existed before finding that the exception rendered the policy not generally applicable).

B. Grooming Standards are Neutral

If a policy is not neutral, we will apply strict scrutiny review. Id. at 165. Smith does not argue that the Grooming Standards are not facially neutral. Rather, he asserts that the Grooming Standards are not neutral in application. See Tenafly, 309 F.3d at 165–66 (A facially neutral policy is nonetheless not neutral if “government officials exercise discretion in applying [it] . . . [and] exempt some secularly motivated conduct but not comparable religiously motivated conduct.”). This argument is similar to his general applicability argument, but our focus here is whether the policy’s application reflects “the purpose of[,] or motivation behind[,] a policy” and whether “policymakers’ subjective intent” was to discriminate. Spivack, 109 F.4th at 167.

Smith contends that the Grooming Standards are enforced in a discriminatory manner because the City administrative employees (including Smith) were not fit-tested annually, in contravention of the City requirements, until after he put in a request for a religious exemption. Only at that time were all

6 administrative employees annually fit-tested. As explained above, however, fit-testing is a separate and different requirement from the Grooming Standards. In addition, it is uncontested that no employee, whether or not they were administrative and missed annual fit-testing, has been excused from complying with the Grooming Standards. It is further uncontested that all requests for accommodations to the Grooming Standards were denied. See, e.g., J.A. 195 (denying medical accommodation to Grooming Standards). Given that the Grooming Standards are facially neutral and were applied equally to both religiously-motivated and secularly-motivated requests for accommodation, the lapses in fit-testing do not reflect a subjective intent by the City to discriminate and the policy is neutral.

C. Rational Basis Review Applies

As a generally applicable and neutral policy, the Grooming Standards are subject to rational basis review. A government policy survives rational basis review if the policy is “rationally related to a legitimate government” interest. Tenafly, 309 F.3d at 165 n.24; Spivack, 109 F.4th at 166 (noting that rational basis review is “a deferential standard” and is “easily satisfied”).

The Grooming Standards are rationally related to a legitimate government interest. The government asserts a safety interest in optimizing SCBA efficacy. Although I disagree with the Majority Opinion that the exceptions to the Respiratory Protective Program and to the annual fit-testing requirement are exceptions to the Grooming Standards, I believe these exceptions are relevant in assessing the City’s stated interest in optimizing SCBA-wearing safety and the tailoring to that interest. For instance, under strict (or possibly intermediate scrutiny), the exceptions might be sufficient to

7 undermine an asserted compelling interest in safety (e.g., because the City’s lack of annual fit-testing may reflect that its interest in properly-sealed SCBAs is not as strong as they assert) or narrow tailoring (e.g., because a Captain may conclude that a firefighter could enter an active fire area without wearing an SCBA, it follows that a Captain could also allow a firefighter to enter that same area with an imperfectly- sealed SCBA). The exceptions are nonetheless insufficient to conclude that the City has not met its burden in asserting its interest in optimizing SCBA safety is legitimate, a much lower bar. See Spivack, 109 F.4th at 166 (stating that rational basis review is “a deferential standard” and is “easily satisfied,” while strict scrutiny is “a far more exacting standard that demands” … “a compelling interest.” (emphasis in original)); see also Maj. Op. at 16. The Grooming Standards are rationally related to optimizing SCBA safety in that a beard can inhibit the seal of an SCBA (which Smith does not dispute). J.A. 574- 75; Appellant’s Br. at 48-49. The Grooming Standards satisfy rational basis review and I would therefore affirm the District Court as to Smith’s Free Exercise claim.

II. CONCLUSION

For the foregoing reasons, I respectfully dissent from the Majority Opinion regarding Smith’s Free Exercise claim.

8 PORTER, Circuit Judge, dissenting in part.

I respectfully dissent as to the denial of Smith’s Title VII retaliation claim. On that issue, I agree with the majority that Smith alleged protected conduct and established an adverse ac- tion based on the 2020 tropical storm incident. We also agree that if Smith established a prima facie case, the City offers le- gitimate, non-retaliatory reasons for its actions.

I disagree with the majority’s conclusion that Smith has not established a causal connection between his participation in protected activity and the adverse action. The majority denies causation because “more than eighteen months had elapsed since Smith’s engagement in protected conduct and the tropical storm assignment.” Maj. Op. 24. The immediate occasion for the fire suppression order was a tropical storm battering Atlan- tic City. I agree that “the temporal proximity is not ‘unusually suggestive’ ” for that reason. LeBoon v. Lancaster Jewish Cmty. Ass’n,

(3d Cir. 2007) (quoting Farrell v. Planters Lifesavers Co.,

(3d Cir. 2000)). If our analysis were limited to temporality and his initial re- quest for accommodation, I would agree that Smith failed on causation.

But I question the majority’s suggestion that the time period for proximity was eighteen months. As the majority acknowl- edges, prosecuting a lawsuit is also Title VII-protected con- duct. Maj. Op. 21. The lawsuit was in full swing at the time of the fire suppression order and suspension, so the City’s adverse action was contemporaneous with Smith’s protected conduct.

In any event, temporal proximity is merely an analytical tool, not the test itself. “We consider ‘a broad array of evi- dence’ in determining whether a sufficient causal link exists.” LeBoon,

(quoting Farrell,

). When temporal proximity fails, a plaintiff may prevail on “the proffered evidence, looked at as a whole.”

(quoting Farrell,

). He can establish “intervening antagonism or retaliatory animus, inconsistencies in the employer’s articu- lated reasons for [the adverse action], or any other evidence in the record sufficient to support the inference of retaliatory an- imus.”

This case features a train of alleged abuses centering on Smith’s religious exercise, including orders to shave while his request was pending. But the 2020 fire suppression order is particularly salient, given that it departs from the whole of the City’s pre-litigation conduct.

Before the 2020 fire incident, the City barred Smith from fire suppression altogether. It had several layers of protocol in place to prevent him from participating. And no Air Mask Technician had been called to engage in fire suppression for at least thirty-five years. The City is no stranger to natural disas- ter, including weather emergencies. It issues emergency callbacks once or twice per year. Tropical Storm Isaias was not even the first tropical storm to strike Atlantic City that year: Tropical Storm Fay struck three months earlier; and Tropical Storms Irene, Bertha, and Danielle hit the City in 2011, 1996, and 1992, respectively. But in none of these previous emer- gencies did the City call on Air Mask Technicians to engage in fire suppression.

That changed when Smith requested a religious accommo- dation. During Tropical Storm Isaias, the City went straight to Smith, whom City policy barred from fire suppression, even when the City had not called for mutual aid or activated its other protocols, even though another firefighter could have

2 taken his place (and did so), and even though there was no fire. The City called in the one man suing them over religious ac- commodations that impacted the City’s response, not to downed power lines, not to medical evacuation, but to fire sup- pression. These unexplained breaches of longstanding proto- col, in the middle of a lawsuit, are actions “that . . . could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

(2006). In my view, Smith has made out a prima facie case.

The majority fares no better on pretext. An employee shows pretext if he “[is] able to convince the factfinder both that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.”

(quoting Krouse, 126 F.3d at 500–01). When we say an expla- nation is “false” and not the “real reason,” we do not mean the proffered reason was imaginary. Instead, a reasonable fact- finder could conclude “that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie,

(3d Cir. 1994).

The majority puts heavy stock in the nature of the tropical storm emergency. There were 911 calls, structural calls, man- power shortages, and that the City “really needed” Smith to respond. Maj. Op. 26 (quoting J.A. 389). But this downplays Smith’s arguments about the City’s bizarre behavior.

The omission from the majority’s account is a fire, and Smith was ordered to suppress a fire—the one activity requir- ing an air mask, thus implicating AFCD’s facial-hair policy. The City ordered Smith to engage in the particular activity for which he lacked necessary training, endangering him and

3 others. That this was “[un]wise” is not at issue. Fuentes v. Per- skie,

(3d Cir. 1994). The issue is pretext. That makes the City’s conscience-suppressing (and dangerous) or- der all the more disconcerting, in light of its admission that there was no fire. An employer’s changing explanation of the factual record at different stages of litigation may also be evi- dence of pretext. Abramson v. William Paterson Coll. of N.J.,

, 283–84 (3d Cir. 2001). But that is a matter for the factfinder to consider.

From Smith’s perspective, believing the alleged conflagra- tion to be real, his action would have been a lose-lose-lose-lose scenario. If he responded, he would endanger himself and his comrades, or have to shave and violate his conscience when the situation did not require it, or refuse to shave and risk rep- rimand. If he did not respond, he again faced reprimand. For the City, the order was a win, no matter what. The litigious employee had to respond to the scene: if clean-shaven, the City achieved compliance; if bearded, he could be disciplined con- sistent with the policy; and if insubordinate, he could be disci- plined for a banal reason. The overall context, and the odd se- ries of events in light of the City’s admission that there was no fire, raises a genuine question of material fact about pretext.

It is rare that a party’s change of position mid-litigation alone will establish pretext, but that is not all. “[E]vidence sup- porting the prima facie case is often helpful in the pretext stage,” and that is true here. LeBoon,

n.10 (quoting Farrell,

)). When the City has decades of consistent behavior for emergency response (not calling Air Mask Technicians to suppress fires), and contradicts that pol- icy mid-litigation, that, too, can be evidence of pretext.

4 As I see it, the record includes some facts potentially favor- ing the City’s explanation and some facts supporting Smith’s version of events. But it is not our job to choose between them. “[A]t the summary judgment stage[,] the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Jiminez v. All Am. Rathskeller, Inc.,

(quoting Anderson v. Liberty Lobby,

(1986)). So long as there is “evidence on which the jury could reasonably find for the plaintiff,” we are duty-bound to re- mand.

(quoting Anderson,

). The majority emphasizes the facts favorable to the City and ignores those favorable to Smith. Taking both sets of facts into account, I do not see how it is possible to conclude that no reasonable trier of fact could find pretext.

5