Boeing workers fired for dressing in KKK garb lose appeal
By P.J. D’Annunzio, From The Legal Intelligencer
The dismissal of a discrimination lawsuit filed by two white men and one Native American man who were fired by Boeing after dressing like Ku Klux Klan members at work has been upheld by the U.S. Court of Appeals for the Third Circuit.
Former Boeing employees Zachary Barker, Francis X. Boyd Jr. and David W. Smith claimed they were fired from their jobs at the Boeing Ridley Park aircraft plant because of their race. But U.S. District Judge Luis Felipe Restrepo of the Eastern District of Pennsylvania tossed the suit, a ruling that the Third Circuit affirmed late Tuesday afternoon.
In the Third Circuit’s order upholding the dismissal of the case, the court said the men failed to show that their race was the basis for Boeing’s decision to fire them.
According to Restrepo’s opinion, Kenta Smith, an African-American aircraft painter and co-worker of the plaintiffs, snapped a photo of them “wearing loose, white, robe-like suits and pointed white hoods” and handling a makeshift cross made of paint mixers. Smith also reported that a noose had been hanging in the paint shop.
The plaintiffs were fired in short order after a Boeing investigation in the matter had concluded that the men had violated company harassment policies.
Despite alleging their firings were based on discrimination, Restrepo said the plaintiffs failed to show that Boeing exhibited any racial bias against them.
“The Ku Klux Klan is a white supremacist organization that has pursued its agenda through violence and terror largely directed at African-Americans. In light of that history, 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 said.
“Boeing fired the plaintiffs for what it deemed a serious act of racial harassment,” Restrepo continued. “Whether or not race contributed to that interpretation of the event, and whether or not it was correct, there is no evidence that Boeing was motivated in any way by ‘discriminatory animus.'”
The plaintiffs claimed the photo was a joke engineered by Kenta Smith, the rope hanging in the paint shop had been there for years, and that Smith himself was responsible for creating an atmosphere of racially-based banter by joking with colleagues about race and referring to them with racial slurs.
“The gist of their complaint is that Kenta Smith was at least as much to blame as they were, and should have suffered equal consequences,” Restrepo said. “But because they are fair-skinned and he is black, they allege, Boeing believed him and not them.”
However, the judge did not buy the argument that the plaintiffs were victims of a setup instigated by Smith.
“Kenta Smith reported an incident of racial harassment. The plaintiffs did not—they were, instead, the object of the report. The plaintiffs appeared in a photograph dressed as the KKK. Kenta Smith did not,” Restrepo said.
Additionally, even if the three could show that there was a racial pretext for their termination, Restrepo said firing employees for dressing like the KKK is a legitimate course of action.
Restrepo noted the plaintiffs did not contest the fact that they were fired because of the KKK photograph incident, but appeared to focus on the severity of their punishment and the disproportionate treatment of Smith based on race.
According to Restrepo, the plaintiffs’ claim revolved around the “mixed-motive” theory, which means that Boeing’s decision to fire them was based on both legitimate and illegitimate reasons.
But again, Restrepo said the plaintiffs did not offer any proof that there was a racially-charged motive to fire them.
Mark Shaffer, the attorney for Boyd and David Smith, did not return a call seeking comment. Barker did not participate in the appeal.
Boeing’s attorney, Richard Harris of Littler Mendelson, did not respond to a request seeking comment by press time.
