Bonnie Mantolete v. William G. Bolger, in His Capacity as Postmaster General, United States Postal Service

concurring:

I concur. I write, however, to stress that this case decides issues solely under § 501 and not § 504.

Today’s decision not only lays down a standard for consideration of risk of future injury, 1 it also imposes demanding information-gathering requirements upon federal employers. Such burdens are justified in light of the express language of § 501 and its implementing regulations. However, whether these requirements are applicable to private employers under § 504 is a question left open by this case.

Section 501(b) provides that: “Each department, agency, and instrumentality ... in the executive branch shall ... submit ... an affirmative action program plan for the hiring, placement, and the advancement of handicapped individuals____” The plan must provide methods for meeting the special needs of handicapped employees, and it must be updated and reviewed annually. 2 Id. Further, 29 C.F.R. § 1613.703 states that: “The Federal Government shall become a model employer of handicapped individuals ...” Given these pronouncements, I agree that a federal employer must gather “all relevant information” before making an employment decision. 3 See Opinion at 1423.

Section 504,…

Bonnie Mantolete brought this action under the Rehabilitation Act of 1973, 29 U.S. C.A. § 791, alleging that the United States Postal Service improperly denied her a position based on her physical handicap. The district court entered judgment for the defendant. Plaintiff makes four assertions on appeal: first, the court erroneously admitted evidence regarding her medical condition which the Post Office did not possess at the time it refused to hire her for the job; second, the court erroneously dismissed plaintiff’s class action allegations and refused to allow pertinent discovery; third, the court applied an incorrect legal standard in determining plaintiff was not an otherwise qualified handicapped person; and fourth, the court failed to apply a meaningful standard for determining a rea-' *1418 sonable accommodation could not be made by the Post Office. We affirm the district court on the first two grounds and reverse and remand on the others.

I.

On July 23, 1976, Bonnie Mantelete applied for a job as a machine distribution clerk at the United States Postal Service in Phoenix, Arizona. As a machine distribution clerk, she would have been employed as a Multi Purpose Letter…

767 F.2d 1416 38 Fair Empl.Prac.Cas. 1081 , 38 Fair Empl.Prac.Cas. 1517 , 37 Empl. Prac. Dec. P 35,455 , 54 USLW 2123 , 3 Fed.R.Serv.3d 273 , 3 Fed.R.Serv.3d 569 , 18 Fed. R. Evid. Serv. 1015 , 1 A.D. Cases 811 Bonnie MANTOLETE, Plaintiff-Appellant, v. William G. BOLGER, in his capacity as Postmaster General, United States Postal Service, Defendant-Appellee. No. 83-2197. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 13, 1984. Decided Aug. 9, 1985. As Amended Aug. 27, 1985. Amy J. Gittler, Phoenix, Ariz., for plaintiff-appellant. Mary Elcano, Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before TANG and PREGERSON, Circuit Judges, and RAFEEDIE * , District Judge. TANG, Circuit Judge: 1 Bonnie Mantolete brought this action under the Rehabilitation Act of 1973, 29 U.S.C.A. Sec. 791 , alleging that the United States Postal Service improperly denied her a position based on her physical handicap. The district court entered judgment for the defendant. Plaintiff makes four assertions on appeal: first, the court erroneously admitted evidence regarding her medical condition which the Post Office…