Delores Facey as she appears on her Facebook page.
By David H. Kirkwood
BOSTON—Boston Police Detective Delores Facey is the latest cop to be forced into retirement because of hearing loss, even though she insists that with hearing aids, which she has worn for the past 15 years, she is fully capable of performing her duties. The officer, a 19-year veteran of the department, suffered her hearing loss on the job in 1999. On March 31, she was was ordered to turn in her handgun and her federal credentials as a member of an FBI Joint Terrorism Task Force, and was escorted out of that unit’s headquarters in downtown Boston.
Facey, whose hearing loss occurred while she was practicing (without earplugs) a new firearm at the police firing range, says she has normal hearing with her hearing aids, which has enabled her to take on demanding assignments, such as working on the sexual assault unit. Soon after her hearing loss, she was promoted to the rank of detective.
In a last-ditch effort to keep her job, the married mother of 9-year-old triplets filed a lawsuit on April 18, alleging discrimination based on disability, against the City of Boston and the municipal retirement board. Boston police have refused to comment on the case, citing the ongoing litigation.
SIMILAR CASES
Other law enforcement agencies have taken similar action against police officers who have suffered hearing loss on the job and, rather than hide it, have addressed it with hearing aids.
In a case that HearingHealthMatters.org has covered, two officers with the New York Police Department were forced into retirement after they began using hearing aids. They filed a complaint with the Equal Employment Opportunity Commission charging that the NYPD policy banning officers from using hearing aids on the job was discriminatory. They also noted that other officers with hearing loss have been able to remain on the job because they did not draw attention to their condition by wearing hearing aids on duty. Their suit has not been resolved.
The outcome was different in Illinois. There the state police originally refused to let a candidate for the cadet corps wear hearing aids while taking the hearing test that all prospective cadets must pass. That policy was challenged in a complaint to the U.S. Department of Justice, which accused the Illinois State Police (ISP) of violating the Americans with Disabilities Act. The state and the Justice Department reached an agreement whereby the ISP would no longer automatically exclude cadet candidates who needed hearing aids, but would consider such applicants on a case-by-case basis.
Ironically, Boston lost a case in 2001 in which it was sued for rejecting a would-be police officer, Richard Dahill, who had worn hearing aids since early childhood. A federal jury ordered the police to allow Dahill to join the department, where he still serves and has risen to the rank of sergeant. The jury also awarded Dahill over $1 million for lost pay and damages.
SECOND SETBACK
This is not the first time that Det. Facey, who holds a master’s in criminal justice from Boston University, has faced the threat of a premature end to her career. In 2011 she severely injured her back when she slipped in the shower at a police department gym. Sidelined for more than 2 years, she was advised by a police department nurse to file for retirement. However, she refused to give up.
After undergoing two back surgeries, her condition improved dramatically and she returned to active duty. Just five months ago, she was assigned to a Boston Police Department-FBI task force to investigate terrorism. It appeared that her career was back on track.
As it turned out, that was not the case. In June 2013, Boston police filed an “involuntary accidental retirement petition,” saying that Facey must retire because of her hearing impairment. She was examined by a state-appointed panel of three doctors who found unanimously that her unaided hearing was too bad for her to perform her duties. In October, the Boston Retirement Board held a hearing on the case.
While awaiting the board’s decision, Facey wrote to Boston’s top police officials asking them to rescind the involuntary retirement petition. She pointed out that the panel of physicians had not tested her ability to hear with her hearing aids on—which is how she has been able to perform her job successfully for many years. However, despite her plea, the Retirement Board informed her on March 18 that it had voted to force her to retire on disability.
POLICE’S ACTION MAKES NO SENSE, SAYS PLAINTIFF’S ATTORNEY
Harold Lichten
Interviewed by Hearing News Watch on April 22, Harold Lichten, the lawyer representing Facey in the case, said he found the Police Department’s actions hard to understand. He contended that with her hearing aids on, his client undoubtedly hears better than many active police officers who don’t wear hearing aids, since noise-induced hearing loss is a common occupational hazard of police work.
Lichten, partner in the Boston law firm Lichten & Liss-Riordan, P.C., also noted that the Boston PD has allowed other police officers who wear hearing aids to remain on active duty. A case in point is Sgt. Dahill, mentioned above, whom Lichten represented in his successful legal fight to become a police officer despite needing hearing aids.
Further buttressing Facey’s case is that her doctor at Massachusetts Eye and Ear Associates, who has been regularly testing her hearing since her 1999 hearing loss, has found that it has remained unchanged.
Making his client’s case all the more incomprehensible, said Lichten, is that if Facey retires on disability, as the Retirement Board says she must, she will be eligible to receive 72% of her salary tax-free. Why, he asked, do the Boston police prefer to pay her not to work than to pay her to do the job she is fighting so hard to keep?
It’s no wonder the pervasive attitude of audism continues long after the ADA was established. What is with a society where people must live in shame and denial for fear for their livelihood and sense of self by taking action to treat their hearing loss with hearing aids? How can we even begin to address the sigma of hearing loss if people feel can not be seen wearing hearing aids? It’s time to bring hearing loss out of the closet. No excuses. It’s time to Get in the Hearing Loop.
In past years, this interesting legal issue has been raised a number of times across the country. The fact that it still is a contested issue should be of concern to our field. Only one of the most critical questions involves any police officer being able to demonstrate “normal” functional hearing abilities in a manner that would allow professional testimony that the officer could perform all the duties associated with the job, especially those in hearing-critical situations, and those critical to the public safety. The criteria for proving “normal hearing” should not be “aided” pure tone and speech thresholds and discrimination scores in quiet conditions, as implied in this case. How many audiologists or physicians could or would provide expert testimony relating to the functional hearing abilities of any police officer with hearing loss? How many would accept the legal responsibility of such testimony? What would be acceptable proof of “normal” function in this case?
Hi, Mike
You raise some interesting questions. Another question is why do police departments seem to go after only officers who wear hearing aids for hearing loss? Meanwhile, they do not seem concerned with identifying officers who have hearing loss but don’t get help for it–very possibly for fear of losing their jobs?
Perhaps it would be best for police departments to follow a two-step process:
(1) regularly test officers’ hearing and if they find hearing loss, see to it that they are fitted with appropriate hearing aids, and (2) when feasible, assign officers whose hearing loss cannot be fully compensated for to positions in which unimpaired hearing is not essential and in which the officers’ skills, training, and experience will continue to benefit the public.
This is in response to M. Metz comments. Under the ADA an employer must be able to demonstrate that with the use of a Hearing aid, a hearing disabled person can not perform the essential duties of a Police Officer. There cant be an unsupported assumption. I believe as do a great many of AUD professionals, that today’s hearing aids are dependable, and provide aided assistance which allows individuals the ability to hear sufficiently well enough to perform the duties of a Police Officer. In fact there are a great many major police departments throughout the United States with full duty Police Officers on patrol with hearing aids who have experienced no issues with their HA’s and are performing all essential duties required of their positions. Furthermore, California which claims the largest Police agency population in the united states , home to more Police agencies than any other in the Union, has adopted the POST system where by on a case by case basis individuals who have hearing loss and use hearing aids are examined and evaluated to determine, on an individual basis whether such an individual hears well enough to be a full duty Police Officer. Lastly, even Federal law enforcement agencies are in the process of changing their policies to allow Federal LEO agents to wear HA’s in the field. Times have changed, the technology has changed, there are metrics we can use to determine functional hearing. The Hearing aid bans practiced by the NYPD and Now selectively by the Boston PD are discriminatory and blatantly violate the ADA. The question the Aud profession and the HLAA should be : Whens will the DOJ finally get involved with this issue head on and mandate nation wide reform?
This is in response to Frank K, can you please send me the link or sources that Federal law enforcement agencies are in the process of changing their policies to allow Federal LEO agents to wear HA’s in the field?