finding that when seeking discovery “to aid the determination of whether a class action is maintainable, the plaintiff bears the burden of advancing a prima facie showing that the class action requirements of Fed.R.Civ.P. 23 are satisfied or that discovery is likely to produce substantiation of the class allega *499 tions”
How later courts described this case
- finding that when seeking discovery “to aid the determination of whether a class action is maintainable, the plaintiff bears the burden of advancing a prima facie showing that the class action requirements of Fed.R.Civ.P. 23 are satisfied or that discovery is likely to produce substantiation of the class allega *499 tions”
- holding that the district court did not abuse its discretion in allowing the defendant to introduce after-acquired evidence to rebut the plaintiff's prima facie case of qualification, but cautioning that it would be improper for the employer to use such evidence to justify its decision
- stating that a risk to self may prevent an individual from being "qualified," but holding that the district court applied a standard too lenient when it found that, because the individual's employment would pose "an elevated risk of injury," she was not a qualified handicapped person
- holding that epileptic would be considered handicapped individual under Rehabilitation Act of 1973 even though she averaged only one daytime grand mal seizure per year and partial seizures lasting a few moments only once every two or three weeks
Written by the judges who cited it.
Distinguished
Distinguished by Brand v. Florida Power Corp., 1994 Fla. App. LEXIS 1695 (1994)
Nevertheless, we are of the opinion that the rule stated in Mantolete and reaffirmed in Kelley is inapplicable to the instant case.
The opinion
RAFEEDIE, District Judge,
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, however, contains no such express statements. Because of this omission, the question of whether Congress intended to impose similarly stringent requirements on private employers should be left for another case. Certainly it is hoped that private employers will follow the government’s lead, but it is debatable whether Congress meant to impose equivalent obligations. Noting this unresolved issue, I concur.
. Without elaboration, the Court apparently has recognized that risk to self is a valid consideration under the Rehabilitation Act. See Opinion at 1423. Allowing consideration of risk to self is to be contrasted with cases under Title VII in which risk to the plaintiff is not sufficient to establish either a bona fide occupational qualification or the business necessity defense. See Dothard v. Rawlinson, 433 U.S. 321, 335 (1972). This recognition, however, is consistent with the implication of this Circuit’s prior decision in Bentivegna, 694 F.2d at 622 n. 2, and the definition of "qualified handicapped person” in 29 C.F.R. § 1613.702 (f).
. Other subsections of § 501 establish an inter-agency committee to assist the Office of Personnel Management in facilitating employment of the handicapped and require annual submission of a report to appropriate congressional committees concerning the effectiveness of affirmative action programs.
. Although I concur, I do question the desirability of requiring federal employers to consider the applicant’s work history as well as his/her medical history. Requiring consideration of work history carries with it the danger of bringing subjectivity into the hiring calculus. See Nanty v. Barrows, 660 F.2d 1327, 1334 (9th Cir. 1981) ("subjective job criteria present potential for serious abuse and should be reviewed with much skepticism").