1196 577 FEDERAL

these proce tres, the US. will protectthe structur

6. If the ructures are not placed onthe National egister by June 1, 1983,plaintiffs will emove them immediately,but not later t n June 15. If plainti~ffsdo not re"o the structures timely,they will pay he U.S. the reasonablecost of remova

Stipulation, ¶1I1 4-6 (mphasis added). Thevery strong langu.e contained in the Sti-pulation illustrates tat plaintiffs realizedthe relative weaken s of their position andis contractuall binmg upon the parties.

[12] Plaintiffs a n,,e they are entitledto attorney's fees be auethe parties havestipulated that th e lite would not havebeen included on t Reg~ister, nor thestructures preserved, bsent their efforts.Stipulation of Facts, o 22. The Act, asamended in 1980, prov es for the award ofattorney's fees to a pealing party. 16U.S.C.A. § 470w-4 (19 ). See WATCH v.Harris, 535 FSpp. 9 ( Conn.1981).

Notwithstanding my cision that plain-tiffs are not etldto ninued use andoccupancy of tetrtusI do concludetheir efforts weetem ig force behindinclusion of th auiaLeCabins on theRegister and tainhtsnse they are theprevailing par. Atogthe Forest Ser-vice stipulated to preserv the structurespending the Keeper's decis ,it did so as adirect result of plaintiffs' ing of this ac-tion. Plaintiffs may filet ir petition inaccordance with Local Rule 5-4.,5

Plaintiffs request an inju tin prevent-ing any action by the For t Service tomove or destroy the struct res withoutfirst complying with NHPA The ForestService has stipulated that It il so com-ply. Stipulation of Facts, No. 3; Stipula-tion, ff 5. An injunction is DE1 IED.

This opinion shall constit ute idings offact and conclusions of law in ecordancewith Fed.R.Civ.P. 52(a).

IT IS SO ORDERED.5. An award will only be given fore enditures

of attorney time up to July 14, 1983, when the

SUPPLEMENT

Mildred M. KERN

V.

DYNALECTRON CORPORATION.

Civ. A. No. 4-79-346-K.

United States District Court,N.D. Texas,

Fort Worth Division.

Oct. 19, 1983.

Religious discrimination action wasbrought against employer who requiredthat helicopter pilot working in SaudiArabia convert to Moslem religion as condi-tion to continuation of employment. Afteraction was commenced, pilot died and hiswife was properly substituted as plaintiff.After court trial, the District Court, Belew,J., held that: (1) prima facie case of reli-gious discrimination was shown; (2) re-quirement that pilot convert to Moslem reli-gion was bona fide occupational qualifica-tion which warranted employer's religiousdiscrimination, inasmuch as requirementwas not merely response to preference ofcontractor performing work in SaudiArabia, but reflected fact that non-Moslememployees caught flying into Mecca would,under Saudi Arabian law, be beheaded;and (3) pilot was aware of the conversionrequirement and, after deciding not to con-vert, voluntarily and unilaterally rescindedemployment agreement to work for em-ployer and thus breached his obligationsunder that agreement.

So ordered.

1. Civil Rights e-44(l)Civil rights complainant established

prima facie case of racial discriminationunder Title VII by establishing that he wasconstructively discharged from helicopter

Keeper made his decision to list the site on theRegister.

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KERN v. DYNALECTRON CORP.Citecas 577 F.Supp. II196 (1983)

piloting job in Saudi Arabia by virtue of hisrefusal to convert to Moslem religion, suchconversion being absolute requirement un-der Saudi Arabian law for piloting helicop-ters near holy lands. Civil Rights Act of1964, §§ 701-718, 42 U.S.C.A. §§ 2000e to2000e-17.

2. Civil Rights e-44( 1)Burden that shifts to defendant after

plaintiff has proven prima facie case ofreligious discrimination is one of produc-tion, not persuasion; burden of persuasionnever leaves plaintiff regardless of inter-mediate shifts in burden of production.Civil Rights Act of 1964, § 703(a), 42 U.S.C.A. § 2000e-2(a).

3. Civil Rights <9:9.10Requirement that helicopter pilot con-

vert to Moslem religion as condition to con-tinuing employment as pilot in SaudiArabia was bona fide occupational qualifi-cation which warranted employer's reli-gious discrimination, inasmuch as the re-quirement was not merely response to pref-erence of contractor performing work inSaudi Arabia, but reflected fact that non-Moslem employees caught flying into Mec-ca would be beheaded. Civil Rights Act of1964, § 703(a, e), 42 U.S.C.A. § 2000e-2(a,e).

4. Master and Servant cS=36Employer did not breach helicopter pi-

lot's employment contract by failing tokeep pilot on as employee after pilot decid-ed not to convert to Moslem religion, whichconversion was bona fide occupational qual-ification under the circumstances, inas-much as Saudi Arabian law prohibited non-Moslem pilot from flying into Mecca, par-ticularly where pilot was fully aware ofrequirement that he convert and started toperform under employment contract by at-tending indoctrination sessions; underthose circumstances, pilot was estoppedfrom denying that he either knew or as-sented to requirement that he convert toMoslem faith in order to get job.

Art Brender, Fort Worth, Tex., for plain-tiff.

Robert M. Martin, Jr., Storey, Arm-strong, Steger & Martin, Dallas, Tex., fordefendant.

MEMORANDUM OPINION

BELEW, District Judge.Wade Kern filed this religious-discrimina-

tion suit pursuant to Title VII of the CivilRights Act of 1964, 42 U.S.C. § 2000e-2000e-17 (1976) against Dynalectron Corpo-ration. Since filing, Wade Kern died andhis wife Mildred Kern was properly substi-tuted as Plaintiff by an Order signed onSeptember 25, 1980.

42 U.S.C. § 2000e-5 (Title VII), 28 U.S.C.§ 1331 (federal question), and 28 U.S.C.§ 1343 (civil rights actions) all confer juris-diction upon this Court over the subjectmatter involved herein. Plaintiff is a resi-dent of Fort Worth, Texas and Defendantis a Delaware corporation. Thus, thisCourt has jurisdiction over the persons in-volved pursuant to 28 U.S.C. § 1332, diver-sity of jurisdiction. The parties stipulatethat Defendant is an employer within thedefinition of Title VII, 42 U.S.C. § 2000e(b).

The case was tried before the Court with-out a jury. Having heard and consideredall the evidence presented at trial and thearguments and briefs of the parties, theCourt now enters its opinion and judgment.

On August 17, 1978, Wade Kern enteredinto a written contract of employment withthe Defendant, Dynalectron Corporation, toperform duties as a helicopter pilot. De-fendant was under a subcontract with Ka-wasaki Heavy Industries, Limited, to pro-vide pilots to work in Saudi Arabia. Thework to be performed in Saudi Arabia con-sisted of flying helicopters over crowds ofMoslems making their pilgrimage alongMuhammad's path to Mecca. The purposeof these flights was twofold: to protect

-against any violent outbreaks and to, helpfight fires. Apparently, while en route toMecca, the marchers lived in tents. Fre-quently, fires would erupt as a result of

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cooking over fires which were started tooclose to the tents.

Three bases were established for Dyna-lectron's pilots: at Jeddah, Dhahran, andRiyadh. Those pilots who were stationedat Jeddah would be required to fly into theholy area, Mecca. Saudi Arabian law,based upon the tenets of the Islamic reli-gion, prohibits the entry of non-Moslemsinto the holy area, Mecca, under penalty ofdeath. Thus, Dynalectron, in accordancewith its contract with Kawasaki, requiresall pilots stationed at Jeddah to be (or be-come) Moslem. Had Wade Kern continuedto work for Dynalectron, he would havebeen based in Jeddah and, therefore, hisconversion from Baptist to Moslem wouldhave been required.

Such a conversion was not unusual forpilots flying for Dynalectron. In fact, theDefendant regularly sent pilots to indoctri- -nation courses where they were taught thebasic formulation of the Islamic faith, con-verted thereto, and received a certificatemanifesting said conversion. Wade Kernwent through such a course which wastaught in Tokyo, Japan, chose his new Is-lamic name, signed his certificate of con-version and then changed his mind abouthis conversion. At that point Kern re-turned to Fort Worth at his own expenseand told Defendant of his decision. De-fendant later offered Kern a job as a mem-ber of the air crew, a position not requiringhis conversion. However, Kern declined totake that job.

[1] Within one hundred eighty days af-ter Kern left the Defendant's employ onSeptember 4, 1978, Kern filed a sworn com-plaint with the Equal Employment Oppor-tunity Commission alleging that he wasdenied an employment opportunity withDefendant due to its discrimination againsthim because of his religious beliefs. OnJuly 6, 1979, the Equal Employment Oppor-tunity Commission issued Kern a right tosue letter and Kern properly filed suit inthis Court within the following ninety-dayperiod.

To establish a prima facie case of dis-crimination based on Title VII, Plaintiff

Kern has the initial burden of pleading andproving: (1) Wade Kern's bona fide beliefthat conversion to Islam is contrary to hisreligious faith; (2) that he informed hisemployer of his beliefs; and (3) he wasdischarged because of his refusal to con-vert. Although Kern was not actuallyfired from his job, both Kern and Dynalec-tron understood that the job requiredKern's conversion. Kern refused to contin-ue working for Dynalectron because he didnot want to be a Moslem. Had he not quit,however, Dynalectron would have fired himfrom this job since it required his conver-sion. Therefore, this Court holds thatKern was constructively discharged. An-derson v. General Dynamics Convair,etc., 589 F.2d 397 (9th Cir.1978), cert. de-nied sub nom.; Brown v. General MotorsCo~rp., 601 F.2d 956, 959 (8th Cir.1979);Brener v. Diagnostic Center Hospital, 671F.2d 141 (5th Cir.1982). Plaintiff here hasestablished a prima facie case.

[21 After the Plaintiff in a ease such asthis has proved his prima facie case by apreponderance of the evidence, the burdenshifts to the Defendant. The United StatesSupreme Court, in a case vacating a FifthCircuit opinion which misconstrued the de-fendant's burden, stated:

The burden that shifts to the defendant,therefore, is to rebut the presumption ofdiscrimination by producing evidencethat the plaintiff was rejected, or some-one else was preferred, for a legitimate,nondiscriminatory reason. 'The defend-ant need not persuade the court that itwas actually motivated by the profferedreasons. It is sufficient if the defend-ant's evidence raises a genuine issue offact as to whether it discriminatedagainst the plaintiff. To accomplish this,the defendant must clearly set forth,through the introduction of admissibleevidence, the reasons for the plaifitiff'srejection. The explanation providedmust be legally sufficient to justify ajudgment for the defendant.... Wehave stated consistently that the employ-ee's prima facie case of discriminationwill be rebutted if the empiloyer articu-

1198

KERN v. DYNALECTRON CORP.Cite as 577 F.Supp. 1196 (1983)

lates lawful reasons for the action; thatis, to satisfy this intermediate burden,the employer need only produce admissi-ble evidence which would allow the trierof fact rationally to conclude that theemployment decision had not been moti-vated by discriminatory animus.

Texas Department of Community Affairsv. Burdine, 450 U.S. 248, 254 and 257, 101S.Ct. 1089, 1094 and 1095-1096, 67 L.Ed.2d207 (1981) (footnotes omitted). Thus, theburden that shifts to the defendant afterthe plaintiff has proven the prima faciecase is one of production, not persuasion.The burden of persuasion never leaves theplaintiff regardless of the intermediateshifts in the burden of production.

[3] One ol the several ways in whichthe defendant can carry this secondary bur-den is by establishing that the discrimina-tion was not unlawful since religion may bea bona fide occupational qualification (B.F.O.Q.).

The B.F.O.Q. defense is set forth in§ 703(a) of Title VII:

Notwithstanding any other provision ofthis title ... it shall not be an unlawfulemployment practice for an employer tohire and employ employees ... on thebasis of religion, sex, or national originin those certain instances where religion,sex, or national origin is a bona fideoccupational qualification reasonablynecessary to the normal operation of thatparticular business or enterprise.

This defense has properly been construedby the cases as a narrow exception in orderto avoid the situation where the exceptionswallows the rule.

In Weeks v. Southern Bell Telephone &Telegraph Co., 408 F.2d 228, at 235 (5thCir.1969), the Court stated: "We hold thatin order to rely on the bona fide occupation-al qualification exception -an employer hasthe burden of proving that lie had reasona-ble cause to believe, that is, a factual basisfor believing, that all or substantially allwomen would be unable to perform safelyand efficiently the duties of the job in-volved." The Court went on to find thatthe defendant, employer had failed to meet

this burden and therefore could not makeuse of the B.F.O.Q. exception. Also notethat in Weeks, the case concerned sex dis-crimination, but the plain language of theB.F.O.Q. exception makes it equally appli-cable to religious discrimination.

In Diaz v. Pan American World Air-ways, 442 F.2d 385 (5th Cir.1971), the Courtlooked to the primary function of the em-ployer's business to judge whether or notthe B.F.O.Q. defense could properly be uti-lized. "The use of the word 'necessary' insection 703(e) requires that we apply abusiness necessity test, not a bus iness con-venience test. That is to say, discrimina-tion based on sex is valid only when theessence of the business operation would beundermined by not hiring members of onesex exclusively." 442 F.2d at 388 (empha-sis in original). The Fifth Circuit held thatthe primary function of an airline is thesafe transportation of passengers and,thus, hiring females exclusively as stew-ardesses could not properly fit into theB.F.O.Q. exception. That is, hiring malestewards would in no way undermine theessence of providing safe air transporta-tion.

The United States Supreme Court hasreferred to the B.F.O.Q. defense as "anextremely narirow exception to the generalprohibition of discrimination." Dothard v.Rawlinson, 433 U.S. 321, 334, 97 S.Ct.2720, 2729, 53 L.Ed.2d 786 (1977). How-ever, the Court went on to find that thisexception was applicable in the Dothardcase and, thus, exclusively male "correc-tional counselors in a 'contact' position inan Alabama male maximum-security peni-tentiary" was legal discrimination pursuantto the B.F.O.Q. exception. 433 U.S. at 337,97 S.Ct. at 2730.

Two cases have upheld the use of theB.F.O.Q. exception in instances where thesafety of third parties might be risked ifthe exception were not used. That is, thediscriminatory acts were allowed to standsince preventing the discrimination in thesecases would result in the diminished safetyof third parties. Both of these cases in-volved the Age Discrimination in Employ-

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ment Act of 1967, 29 U.S.C. § 621-634(1967) which contains a B.F.O.Q. exceptionthat is identical to the one in Title VII.

In. Hodgson v. Greyhound Lines, Inc.,499 F.2d 859 (7th Cir.1974), the Court up-held a Greyhound policy of limiting newapplicants for jobs as drivers to peopleunder age thirty-five. The dispositive fac-tor was the increased risk to Greyhoundpassengers if the policy were not upheld."Greyhound need only demonstrate how-ever a minimal increase in risk of harm forit is enough to show that elimination of thehiring policy might jeopardize the life ofone more person than might otherwise oc-cur under the present hiring practice." 499F.2d at 863. See also a similar case: Useryv. Tamiami Trail Tours, Inc., 531 F.2d 224(5th Cir.1976).

The case presently in issue is unique inseveral respects: it concerns the possibleapplication of the B.F.O.Q. exception to areligious discrimination case and it in-volves the safety of the employee only, notthat of third parties. Clearly, Title VIImakes the B.F.O.Q. exception applicable toreligious discrimination cases. However,the instances where the exception is actual-ly applied to such a case are few indeed.

In the instant case, discrimination exists:only pilots who either already are Moslem,or those who convert thereto, can be hiredto fly from the Jeddah base into the holyarea. Since all pilots stationed at Jeddahwould be required to fly into Mecca, all ofthem must be Moslem. This Court as afactfinder holds that regardless of the ex-act moment Wade Kern found out aboutthe requirement that he convert, he contin-ued to perform his duties under the con-tract by travelling to Japan solely for thepurpose of attending the indoctrination ses-sions and completing his conversion to theIslamic faith. Further, when Wade Kernchanged his mind about the conversion andreturned to Fort Worth, he knew he couldno longer keep his job flying out of Jeddahsince he was not a Moslem. Plaintiff, uponhis return to Texas, informed his supervi-sor, Mr. Zedikee that he could not convertto the Islamic faith in good conscience. As

a non-Moslem, he could no longer hold thejob that he had with Dynalectron. Dyna-lectron offered him a different job whichstarted some months in the future whichKern declined to accept. Thus, the ele-ments of Kern's prima facie case are estab-lished.

The Defendant's burden of producing alegitimate reason for the'existing discrimi-nation is properly sustained through theapplication of the B.F.O.Q. exception toKern's case. By applying the standard setforth in Weeks, this Court holds that Dyna-lectron has proven a factual basis for be-lieving that all non-Moslems would be un-able to perform this job safely. Specifical-ly, non-Moslems flying into Mecca are, ifcaught, beheaded.

In the language used in Diaz, the es-sence of Dynalectron's business is to pro-vide helicopter pilots. In this instance, un-der a subcontract with Kawasaki HeavyIndustries, the Defendant had to provideMoslem pilots for the Jeddah base. Specif-ically, the subcontract dated August 28,1977, required that Moslem pilots and me-chanics be provided as necessary for opera-tions in the holy area of Saudi Arabia.Thus, the essence of Dynalectron's busi-ness would be undermined by the behead-ing of all the non-Moslem pilots based inJeddah.

As to the second unique aspect of thiscase, the fact that the safety of the employ-ee is in jeopardy instead of the safety ofthird parties as was the case in Grey--hound, this application of the B.F.O.Q.may be new, but it is certainly not withoutsome precedent.

The specific facts of this case, e.gc~ wherethe safety of the employee requir~es theexistence of religious discrimination, can beanalogized to the often discussed situationinvolving discrimination against women ofchild-bearing age in order to protect thesafety of their unborn children. The lattersituation is a much harder one in which toapply the B.F.O.Q. exception since proofthat a toxic environment directly harmswomen in this age group and not maleworkers who might father children is lack-

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KERN v. I)YNALECTRON CORP.Cite as 577 F.Supp. 11 96 (1983)

ing. Thus, the discrimination against wom-en hired to work in a toxic environment infavor of men would be hard to justify with-out a showing that men working in thatenvironment are less apt than women toproduce abnormal children. See: Com-ment, Employment Rights of Women tnthe Toxic Workplace, 65 Calif.L.Rev. 113(1977). However, no such problem existsin applying the B.F.O.Q. exception to theinstant case.

There can be no question but that non-Moslem pilots stationed in Jeddah are notsafe as compared to Moslem pilots. There-fore, Dynalectron's discrimination againstnon-Moslems in general, and Wade Kernspecifically, is not unlawful since to hireMoslems exclusively for this job "is a bonafide occupational qualification reasonablynecessary to the normal operation of thatparticular business," § 703(a) of Title VII.Notwithstanding the religious discrimina-tion in this case, the Court holds and findsthat the B.F.O.Q. exception is properly ap-plicable.

There are cases which hold that merestereotypic impressions of male and femaleroles or customer preferences of one gen-der over the other are not enough to justifydiscrimination as a B.F.O.Q., City of LosAngeles Dept. of Water v. Manhart, 435U.S. 702, 707, 98 S.Ct. 1370, 1374, 55L.Ed.2d 657 (1978); Diaz v. Pan AmericanWorld Airways, Inc., 442 F.2d 385, 389(5th Cir.1971), cert. den., 404 U.S. 950, 92S.Ct. 275, 30 L.Ed.2d 267 (1971). It is alsotrue that the same maxims are equallyapplicable to religious discrimination. Thatis, mere customer preference of one reli-gion over another is not enough to raisereligious discrimination to the level of B.F.O.Q. However, as is more fully explicatedbelow, the case at bar is distinguishablefrom the customer preference cases.

Plaintiff would have this Court followFernandez v. Wynn Oil Co., 653 F.2d 1273(9th Cir.1981) wherein it is stated: "Noforeign nation can compel the non-enforce-ment of Title VII here." While this Courtagrees with that statement and with itsapplication to the Fernandez case, it is not

applicable to the case at bar. In Fernan-dez, a female plaintiff sued her employerfor discriminatorily not promoting her be-cause she was female. The job to whichshe would have been promoted requiredher to deal with South American business-men who preferred not to do business withfemales. There, the Court stated that themere fact that it was an international casedid not distinguish it from other cases (cit-ed in the previous paragraph of this opin-ion) wherein it was held that mere custom-er preference would not justify the use ofthe B.F.O.Q. exception. Thus, the NinthCircuit held that the District Court erred infinding that being male was a B.F.O.Q. inthis instance. This Court distinguishes theinstant case from Fernandez.

First, the Court of Appeals in Fernandezupheld the District Court's main findingthat Ms. Fernandez was not promoted be-cause she was not qualified: "Testimonywas presented that Fernandez was not pro-ficient in the English language ... she hadno secondary education ... she had adrinking problem and erratic work habits... she was indiscreet in her criticism of[her boss] ... and ... she had exhibitedpoor supervisory and marketing skills."653 F.2d at 1275. Therein lies the basis forthe District Court's opinion and the NinthCircuit's affirmance. The District Courtheld only alternatively that being male wasa B.F.O.Q. for this job. That portion of theopinion referring to whether or not beingmale was a B.F.O.Q. was not dispositive ofthe case and it was only that part of thelower Court's opinion which was over-turned. Thus, the comments of the NinthCircuit are for the purpose of clarificationand do not control the overall decision ofthe Court.

Second, Fernandez was a typical custom-er preference case; whereas the suit pres-ently before the bar is simply not a custom-er preference case, typical or otherwise.In Fernandez, simple male chauvinism pre-vented the South American businessmenfrom dealing with females:

Testimony in the record indicated that afemale would have difficulty in conduct-ing business in South America from ahotel room. No proof was adduced, how-

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ever, that the position required work ofthis nature. Nor does the record provideany basis for the district court's findingsthat hiring Fernandez would "destroy-the essence" of Wynn's business or "cre-ate serious safety and efficacy prob-lems." There is, in short, no factualbasis for linking sex with job perform-ance. The BFOQ finding is accordinglyfactually erroneous.

653 F.2d at 1276 (emphasis added). TheCourt there relied on the fact that beingfemale had not been shown to adverselyaffect job performance. Thus, it could notbe claimed that gender was a B.F.O.Q. forthis job.

Unlike Fernandez, the case at bar con-tains ample facts upon which the Courtmay base its conclusion that being a Mos-lem was a B.F.O.Q. for this job. Statedanother way, it is clear from the evidenceadduced at trial that being Moslem waslinked to job performance. In fact, as hasbeen stated before, an absolute prerequi-site to doing this job (flying helicopters intoMecca) is that one be a Moslem.

As to the statement contained in Fer-nandez that no foreign nation can compelthe non-enforcement of Title VII here, thistoo is inapplicable to the present case. Ti-tle VII was written with a B.F.O.Q. excep-tion which was clearly applicable to reli-gious discrimination. Merely by using thisexception and applying it to the instantfacts, this Court is not engaging in thenon-enforcement of Title VII. It clearly isapplying Title VII's B.F.O.Q. exception asit was intended to be applied (i~e. in thoselimited instances where one must toleratereligious discrimination where it is a neces-sity, in fact, a prerequisite for the perform-ance of a job). Thus, this Court is in noway allowing a foreign nation, here SaudiArabia, to compel the non-enforcement ofTitle VII in this country.

[4] The second count in Kerni's com-plaint is one against Dynalectron forbreach of its employment contract. Plain-tiff asserts that the contract does not spe-cifically require the employee to be a Mos-lem and, thus, because Dynalectron failedto keep him on as an employee after he

decided not to convert, it breached its con-tract with him.

However, based upon the facts that Kernwas fully aware of the requirement that heconvert and that he started to performunder the contract by attending the indoc-trination sessions in Japan, this Court holdsthat he is now estopped from denying thathe either knew or assented to the require-ment that he convert to the Islamic faith inorder to get the job. Moreover, it wasKern who failed to meet the known re-quirement that he convert; thus, Dynalec-tron in no way breached its contract withhim.

Therefore, this Court concludes that Dy-nalectron did not breach its contract withWade Kern.

FINDINGS OF FACT1. Plaintiff, Mildred M. Kern, is a fe-

male citizen of the United States and aresident of Fort Worth, Tarrant County,Texas.

2. Defendant, Dynalectron Corporation,is a corporation incorporated under thelaws of the State of Delaware, and is doingbusiness in Fort Worth, Tarrant County,Texas.

3. Plaintiff has taken the necessary,steps to confer jurisdiction upon this Court.Plaintiff, Mildred M. Kern, was duly ap-pointed Executrix of the Last Will of WadeC. Kern and as the qualified Executrix ofMr. Kern's Last Will was duly substitutedas Plaintiff in place of Wade C. Kern onSeptember 25, 1980, by order of this Court.

4. Wade C. Kern (hereinafter "Kern")on or about August 7, 1978, entered into awritten contract of employment with De-fendant Dynalectron Corporation.

5. Pursuant to the employment contractwith the Defendant Corporation, Kern com-menced duty as a helicopter pilot and be-gan training under the direction of theDefendant.

6. Kern was to perform duties as ahelicopter pilot in the country of SaudiArabia.

7. Defendant informed Kern prior to hisdeparture for Tokyo, Japan, that a portion

1202

BUCKS COUNTY PLAYHOUSE v. BRADSHAWCite as 577 F.Supp. 1203 (1983)

of Saudi Arabia was within the Holy Areasurrounding Mecca, located within SaudiArabia and that it was required by the lawsof Saudi Arabia that any person enteringthe Holy Area be of the Islamic faith.

8. The employment contract of August7, 1978, specifically refers to compliancewith the laws and regulations of the coun-try where services were to be performed.

9. Kern was aware of the religious lawsof Saudi Arabia and that he would be re-quired to perform some duties within theHoly Area.

10. The Contract of Agreement Heli-1between the Minister of Interior, GeneralCivil Defense Administration, the Kingdomof Saudi Arabia and Kawasaki Heavy In-dustries, Limited, required that Moslem pi-lots and mechanics be provided as neces-sary for operations in the Holy Area ofSaudi Arabia.

11. Defendant is a subcontractor of Ka-wasaki Heavy Industries, the primary con-tractor with the government of SaudiArabia, for the maintenance and operationof helicopters within Saudi Arabia. De-fendant's subcontract specifically requires:

"Moslem pilots and mechanics shall beprovided as necessary for operations inthe Holy Area."

Kern was well-aware of this requirement.12. Following his Islamic conversion in

Tokyo, about noon on September 3, 1978,Kern changed his mind at about midnightthat same day and returned to Fort Worth,Texas, and advised Defendant that he hadchanged his mind about employment in apilot's position for Saudi Arabia.

13. Kern inquired with Defendant aboutother openings for air crews. He was ad-vised by Defendant that he could be em-ployed in January, 1979, in an air crewposition, not requiring the Moslem faith.Kern demanded that he be kept on thepayroll of Defendant until such time, whichaction Defendant declined to take.

CONCLUSIONS OF LAW1. To the extent that any of the forego-

ing Findings of Fact constitute Conclusions

of Law, the same are adopted and areincorporated by reference herein.

2. The Court has jurisdiction over thesubject matter of the suit by virtue of 42U.S.C. § 2000e-5 and by 28 U.S.C. §§ 1331and 1343.

3. Defendant corporation operates andmaintains a business and is an employerwithin the meaning of 42 U.S.C. § 2000e(b)in that the company is engaged in an indus-try effecting commerce and employs atleast fifteen persons.

4. Defendant requires for employmentthat an individual be a Moslem to performthe duties of helicopter pilot in certain por-tions of Saudi Arabia.

5. The requirement that an individualbe a Moslem to perform the duties of ahelicopter pilot in certain portions of SaudiArabia is a bona fide occupational qualifica-tion within the meaning of 42 U.S.C.§ 2000e-2(e).

6. Kern voluntarily and unilaterally re-scinded his agreement to work for Defend-ant and thus breached his obligation underthe contract.

Judgment will be entered in accordancewith this Memorandum Opinion.

( E ERSYSTEM

BUCKS COUNTY PLAYHOUSE, Ram111, Ralph A. Miller, III, and

Raymond DaikelerV.

Terry BRADSHAW, Gilbert R. Shanley,Jr., Dan Wright, and Ann Wright,

Reps. Agency.No. 83-2726.

United States District Court,E.D. Pennsylvania.

Oct. 28, 1983.

Action was brought alleging breach oforal personal service contract. The Dis-

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