Boeing Cleared After KKK Photo Led to Firings

(CN) - Two white men and a Native American who said they were fired after a black co-worker cajoled them into dressing like the KKK cannot sue Boeing, a federal judge ruled.

The dispute stems from a photo reported in May 2012 of three fair-skinned aircraft painters in white, robe-like paint suits and pointed hoods with horizontal ovals exposing their eyes. Two of the men pictured are holding makeshift wooden crosses about a foot high. They took the photo while working at the Boeing paint shop in Ridley Park, Pa.

Equal Employment Opportunity investigation officer Thomas Ceredes ultimately found that the trio - Zachary Barker, who is Native American, and Francis Boyd Jr. and David Smith, who are white - had violated Boeing's harassment policy.

Ceredes also discovered a noose hanging in the paint shop, as well as a stuffed toy monkey lodged between a beam and a pipe.

Boeing fired the trio on May 17 for "inappropriate race-based behavior."

Barker, Boyd, and Smith challenged their termination, citing statements of five other employees that the fired workers were not racist, that the "rope" had been in the shop for years, and that Kenta Smith, the black co-worker who reported the photo, had asked if they wanted to be "in the family picture" too.

After Boeing brushed those claims aside, the crew sued the company in Philadelphia, alleging they were fired based on race discrimination, whereas Kenta was not investigated or disciplined.

They claimed that Kenta Smith had engineered the photo, allegedly joking on the day of the incident that they looked like the KKK in their paint suits. They said Kenta Smith urged them to pose for a picture, shaped their hoods into points, and made crosses out of paint-mixing sticks and duct tape to make the picture "funnier."

Kenta Smith later told his supervisor that he was "unnerved" by the incident but would not file a formal complaint. The fired workers questioned the timing of Kenta Smith's report in May 2012, saying he waited until he experienced a falling-out with David Smith.

Kenta Smith, they said, had promoted race-based "banter" in the paint shop for some time by making use of racial jokes and slurs, and saying he had "the race card" in his wallet.

U.S. District Judge L. Felipe Restrepo awarded Boeing summary judgment May 14, rejecting the claim that Kenta Smith was at least as much to blame as they were but evaded blame because they are fair-skinned and he is black.

"The problem with this position is that, even if accurate, it does not make out a § 1981 claim of intentional race discrimination," Restrepo wrote.

The trio failed to show that Boeing's reason for firing them was pretextual, the ruling states.

"There is no evidence that could lead a reasonable jury to conclude that Boeing did not really fire the plaintiffs for posing as the KKK, or that a more likely cause was Boeing's animus toward white people," Restrepo wrote. "The plaintiffs argue, variously, that Kenta Smith was not credible and that Ceredes' investigation was incomplete, but those arguments are beside the point. The question is whether Boeing's rationale for firing the plaintiffs - that it believed they had violated its harassment policy - is a lie, and nothing in the record suggests that it might be."

Boeing had to consider the plaintiffs' races in its analysis of the photo incident, in light of the KKK's history, according to the ruling.

"It is a simple reality that fair-skinned men presenting themselves as members of the KKK to a dark-skinned person has a very particular resonance," Restrepo wrote. "That this may have factored into Boeing's interpretation of the event does not change the discrimination analysis, under either a pretext or mixed-motive framework."

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