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.
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.
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
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?