dissenting:
I dissent because this case is straightforward, calling for a simple application of the standard of review. 29 U.S.C. § 817(b) provides in part, “The findings of fact by the Secretary [of Labor], if supported by substantial evidence, shall be conclusive.... ” This standard has here been met and I would accordingly affirm the decision of the Secretary denying back pay to Bentivegna.
The Supreme Court in the leading case, Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), discusses the language of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1981). The statute applies to Federal financially assisted programs and is not limited to educational establishments. Though there are differences between Southeastern and this case, those differences do not affect the application of the reasoning in Southeastern here. The Court granted certiorari “because of the importance of this issue to the many institutions covered by § 504.” 442 U.S. at 404, 99 S.Ct. at 2366, 60 L.Ed.2d at 987. In my opinion, the Supreme Court intended to *624adopt a general rule for application to § 504 suits. We should not be prone to probe for exceptions. Therefore, “institutions” has a broad meaning encompassing an employer. The Court concluded an otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap. 442 U.S. at 406, 99 S.Ct. at 2367, 60 L.Ed.2d at 988.
Petitioner established a prima facie case under § 504. He demonstrated: 1) he is handicapped, 2) he is qualified for the position sought, 3) he is being rejected solely on the basis of his handicap, and 4) the position exists as a part of a program receiving Federal financial assistance. At that point, the burden shifted to the City to present evidence that petitioner was not qualified since he did not meet the reasonable requirements for the job. Regulations of the Secretary of Labor permit the recipients of Federal funding (the City here) to establish job qualifications and conduct preemployment medical examinations, but to the extent the criteria tend to exclude handicapped individuals, “they are [to be] related to the performance of the job and [be] consistent with business necessity and safe performance.” 29 C.F.R. § 32.14(a).
It is clear then § 504 does not restrict the right of recipients of Federal funding to establish job-related criteria for their prospective employees. Hence, once the recipient produces evidence justifying the qualification as being job-related, the petitioner must carry his ultimate burden of persuasion that he is qualified in spite of his handicap.
The Secretary found the City’s policy substantially justified and reasonably job-related. There is substantial evidence in the record that Bentivegna’s diabetes was not controlled. Evidence demonstrated poorly controlled diabetics were more prone to possible injury and complications than uncontrolled diabetics. The Secretary received testimony and documents on the effects of diabetics and consequences of control. The Secretary could reasonably conclude controlled diabetes was necessary to the job of “building repairer.” Because proof of control required testing and observation over a period of three to four months, it was not improper nor unreasonable for the Administrative Law Judge (or the City) to require petitioner to come forward with medical evidence of control. Facts in the peculiar knowledge of one causes the burden of proof to shift to him even if it would not otherwise rest there. U.S. v. Hayes, 369 F.2d 671, 676 (9th Cir.1966).
Bentivegna failed completely to produce evidence of control. Such evidence produced in December 1978 from a different doctor has no relevance to Bentivegna’s evidence of qualification for the 1977 position from which he was terminated. It is unfortunate that Bentivegna may have been able to establish control, but for the intransigence of his previous doctors.
The record supports the Secretary’s conclusion. Evidence established there could be a reasonable difference of opinion among physicians about uncontrolled diabetes and Bentivegna’s ability to work safely as a carpenter. Decision and Order, July 6, 1981, p. 2.1 Substantial evidence is present supporting the conclusion that the City’s *625“requirements of good control of diabetes as a precondition for municipal employment in the construction trades is reasonable” as the Secretary found. Decision and Order, p. 3.
Bentivegna did receive individual evaluation pursuant to § 504, and the policy and practice of the City.2 Applicants who displayed diabetes mellitus were “individually evaluated by the examining physician” to determine eligibility and limitations. (Record attached to November 8, 1977 recommendation about the appeal of Philip Bentivegna, Memorandum from the General Manager of the Medical Review Board to the Board of Civil Service Commissioners, p. 6). The record supports the Secretary’s conclusion that Bentivegna was individually assessed:
“The City gave him a medical examination, had his medical data evaluated at least twice by a board of physicians, gave him two sympathetic hearings before the Civil Service Commission where he was represented by counsel and presented evidence, and even wrote to his physicians more than once. It is hard to imagine how much more personal a large municipality could be....”
Decision and Order, p. 5.
In light of the support for the Secretary’s conclusion that there was no discrimination of any kind, the denial of the back pay remedy is entirely appropriate, and I would affirm the decision of the Secretary of Labor.
. Again, the record supports, and the administrative law judge found as follows:
“In view of the foregoing, it is clear to me that the City of Los Angeles had a perfectly legitimate employment related reason for insisting that diabetics it employed, especially in the construction trades where injuries are fairly common, have their diabetes under good control. There was no blanket disqualification on account of some handicap or disability over which the employee has no control, but rather a policy to refuse employment until an applicant showed good control of his condition, something which was within the power of most applicants to do. Such a policy does not appear to be invidious or discriminatory.”