An employer can be entitled to a "same actor" inference, if the same individual is responsible for hiring and discharging an employee. In May 2007, Gayle Barricelli, who managed the pathology department at the defendant, the Hospital of Saint Raphael, hired the plaintiff, an African-American male. Allegedly, the plaintiff was instructed not to "pre-label" or to "pre-write" slides with patient-identifying information, prior to placing tissue on slides. Barricelli testified that during the probationary period, the plaintiff resisted that instruction and continued to "pre-label" or to "pre-write" slides, and that labeling errors in the pathology lab increased. Pathologists allegedly recognized the plaintiff's handwriting on slides that contained errors and indicated that they did not want the plaintiff to prepare slides. Allegedly, the plaintiff was diagnosed with a temporary infection on Aug. 7, 2007, requested a sick day on August 8, and was discharged when he returned to work August 9. The plaintiff sued, alleging that the defendants engaged in discrimination on the basis of race, in violation of Title VII. The plaintiff did not prove there was any use of racially derogatory language. The plaintiff failed to establish he was discharged in circumstances that led to an inference of discrimination on the basis of race, as required to establish a prima facie case. Even if the plaintiff had established a prima facie case, the hospital presented a legitimate, nondiscriminatory, business rationale, because incorrect labels on slides could adversely affect patient safety. The plaintiff did not present evidence that similarly situated Caucasian workers were treated differently. The same individual, Barricelli, hired and fired the plaintiff. The hospital was entitled to a "same actor" inference that "discrimination was not a determining factor," pursuant to Jones v. Yonkers Public Schools, a 2004 decision of the Southern District of New York. "Even if this Court found an inference that Plaintiff was fired because of his race," wrote the court, "Defendant convincingly showed he was terminated for a legitimate, non-pretextual, nondiscriminatory, performance-based reason." The plaintiff also failed to prove that the August 7 infection qualified as a "disability," for purposes of the Americans With Disabilities Act. 

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