E.D. Pa. Notes Split Re "Same Actor Inference"

Per Folcher v. Appalachian Insulation Supply, Inc., Slip Copy, 2007 WL 1544693 (May 24, 2007):

Appalachian Insulation also argues it is entitled to a “same actor inference,” that is, when a person in a protected class is hired by the same person who later fires him, the defendant is entitled to an inference of non-discrimination. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 271 (9th Cir.1996) (holding the plaintiff's evidence was insufficient as a matter of law to rebut the strong same-actor inference). Although, the circuits are split, see Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 573 (6th Cir.2003) (collecting cases), the Third Circuit has come down against the inference. See Waldron v. SL Indus., Inc., 56 F.3d 491, 496 n. 6 (3d Cir.1995) (noting the same-actor inference “is simply evidence like any other and should not be afforded presumptive value”).