United States District Court, E.D. Pennsylvania
ZACHARY BARKER et al.
THE BOEING COMPANY
Decided May 13, 2014
For ZACHARY BARKER, Plaintiff: ROBERT T. VANCE, JR., LEAD ATTORNEY, LAW OFFICES OF ROBERT T. VANCE, JR., PHILADELPHIA, PA.
For FRANCIS X. BOYD, JR., DAVID W. SMITH, Plaintiffs: MARK S. SCHEFFER, LEAD ATTORNEY, LAW OFFICES OF MARK S. SCHEFFER, BIRCHRUNVILLE, PA.
For THE BOEING COMPANY, Defendant: RICHARD R. HARRIS, SHELBY REASE SCHWARTZ, LITTLER MENDELSON, PHILADELPHIA, PA.
L. FELIPE RESTREPO, UNITED STATES DISTRICT JUDGE.
Plaintiffs Zachary Barker, Francis X. Boyd Jr., and David W. Smith brought suit against their former employer, the Boeing Company (" Boeing" ), alleging that Boeing terminated their employment on the basis of their races (Caucasian and Native American) in violation of 42 U.S.C. § 1981. Boeing counters that it terminated their employment because, while at work, they posed for a photograph as members of the Ku Klux Klan. Boeing now moves for summary judgment in its favor. For the reasons that follow, I will grant the motion.
I. Background 
On May 3, 2012, Kenta Smith, an African-American aircraft painter employed by Boeing in its Ridley Park, Pennsylvania facility, reported to his supervisor, Joseph Williams, that he had recently encountered three of his co-workers dressed as the Ku Klux Klan. JA 90-91, 119, 513. He showed Williams a photograph that he had taken with his cell phone. See id. ; JA 357, 395. It depicts three men, standing in a row and facing the camera, wearing loose, white, robe-like suits and pointed white hoods. The hoods cover their faces except for a horizontal oval that exposes their eyes. Two of the men are holding makeshift wooden crosses approximately a foot high. The men to the center and right are leaning together so that their hoods nearly touch, a cross extended before them. Ex. A; JA 357, 395. The picture is very clearly an image of three Klansmen.
It is undisputed that the photograph depicts Barker, Boyd and Smith. See JA 91-95, 112-16, 431. All three plaintiffs are fair-skinned; Boyd and Smith identify as Caucasian, Barker as Native American. See JA 91-92, 97; Compl. (Doc. 1) ¶ 4. It is also undisputed that the photo was taken in the Boeing paint shop while the plaintiffs were on the job; that they were wearing company-issued paint suits and " head socks" modified to create a point; and that the crosses were constructed of paint-mixing
sticks and duct tape. Id. Finally, there is absolutely no dispute -- nor could there be -- that they intended to look like the KKK. E.g. JA 433, 455, 473-75.
According to Williams, Kenta Smith said that he was " unnerved" by the incident but did not want to file a formal complaint. JA 406, 119. Nonetheless, Williams reported it to his supervisor, who relayed the information to Boeing's human resources department. JA 88, 406-07. Thomas Ceredes, an Equal Employment Opportunity (" EEO" ) Investigation Officer, launched an investigation, in the course of which he interviewed Williams, Kenta Smith, and the three plaintiffs. See JA 80-125, 481-82.
Kenta Smith told Ceredes that his colleagues had confronted him dressed as members of the KKK and that he had snapped the picture before they could react. JA 89, 110-11. He also reported that there had been a noose hanging in the paint shop for some time. JA 90, 110. Investigators located the noose dangling from a rafter, as well as a stuffed toy monkey lodged between a beam and a pipe in a different area of the workshop facility. JA 91, 119, 396-97.
The three plaintiffs told Ceredes that Kenta Smith had engineered the KKK photograph as a joke. JA 91-94, 112-16. According to their statements, and their depositions in this case, Kenta Smith was responsible for an atmosphere of race-based " banter" that pervaded the paint shop: He joked in racial terms, referred to his colleagues by racial slurs, and alluded to having " the race card" in his wallet. Id.; see also JA 430-35, 455-57, 470-75. On the day the photograph was taken, they contend, Kenta Smith joked that his colleagues looked like the KKK in their paint suits, exhorted them to pose for a picture, and then shaped their hoods into points and provided the crosses in order to make the picture " funnier." Id. They suspected that he had disclosed the photograph after a falling-out with David Smith, as retaliation. JA 112, 115, 471. Another paint-shop employee, Donald Kirby, also contacted Ceredes to volunteer a statement affirming that " [Kenta] Smith refers to white employees as 'honkys' and 'crackers'" and that Baker, Boyd and Smith were " good workers and got caught up in this mess when it was just a joke." JA at 155.
This was the extent of Ceredes' investigation. He did not interview any other paint-shop employees about the alleged atmosphere of " racial banter." JA 484-85. There is purportedly another painter, Paul Paraka, visible in the background of the picture, but Ceredes did not interview him either. JA 432-33. Nor did he interview ...