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					                                                      -
                                           -BEFORE  THE
                      FAIR         EMPLOYMENT  AND HOUSING  COMMISSION
                                    OF THE STATE OF CALIFORNIA




    In     the   Matter      of         the   Accusation                   )
                                                                           )
                             of                                            )
                                                                           )
    THE DEPARTMENT OF FAIR                       EMPLOYMENT                )
                                                                           )
    AND HOUSING,             ,     .~
                                                                           )
                             vs.
                                                                           )   CASE NO.   FEP85-86             D3-O34Op
                                                                           )
    COUNTY OF SAN DIEGO; SHERIFF's                                         )
                                                                           )
    DEPARTMENT,
                                                                           )
                                                                               L-39936


                                                                                          RECEIVED
                                                                                                     AUG 181~98

                                                                                              FAIR      E.\tPLOYMENT
                                                                                          &   HOUSING        COt.f~IISSION




                                                                DECISION



                                                           :~




                    The record   was held open for the                              submission  of
         post hearing   briefs.    Briefs  were received                             "and the matter
         was submitted    on July 7, 1988.
                   Oral and documentary    evidence,    as well    as argument,
         having been received   and considered,      the Administrative     Law
         Judge proposes  the following   decision:




                                                           -1-




~
                                      FINDINGS        OF FACT

                1.     The Department             of Fair      Emp.loyment      and Housing
  (hereinafter         "Department")            is an administrative              agency
 empowered        to issue       Accusations           under    sections       12930,
 subdivision         (h) and 12965,             of the Fair        Employment        and
 Housing       Act,   California        Government           Code sections          12900 et      seq.
 Talmadge       R. Jones,        in his       official       capacity      as the Director
 of the Department,              issued      an Accusation           against      respondent
 County      of San Diego;          Sheriff's          Department       (hereinafter
 "Respondent")          on April       21,1987.

              2.       Respondent     is      an employer     within           the    meaning
 of   Government         Code section         12926,  subdivision              (c).
                        '. .w
               3.     On April      22, 1986,     complainant             Walter      Grace
{hereinafter          "complainant")        filed   a verified              complaint       in
writing      alleging       that    respondent     committed            an unlawful
employment        practice       against    complainant       in        violation        of the
Fair    Employment         and Housing      Act within      the         preceding       one
year.

                4.    The parties         have      complied     with    all      procedural
requirements          of the Act.

              5.     In or about    January      or February,     1985,
complainant        competed   in and passed-pre-employment              examina-
tions    conducted      by respondent      for    the position     of deputy
sheriff.       Respondent     has an affirmative         action    program,
vocational       resources    management       programs,     and a vocational                      -
medical     program.       The vocational       medical    program    provides
for    a pre-employment       physical     examination.

               6.    On June II,          1985,    complainant        underwent          a pre-
employment        physical       examination         conducted      by -respondent's             ---
agents     at the Rees-Steely              Clinic.       As part      of the examination,
he was given         an air     conduction         pure    tone   threshold         test.
This    test,     which    was conducted           in a soundproof           room with         ear
phones,       measured     his    ability       in each ear to hear             various
frequencies.          The test       is conducted          by determining          how loud
(decibels)        (WdB")     a sound must be before               the examined            person
can hear       the sound at a particular                 frequency.         This      is
measured       in cycles       per second,         or whertz"       (hz.).       The test
was conducted         unaided.          No test      was conducted         with    the use
of a hearing        aid.

            7.    On or about June 24, 1985, respondent            notified
complainant     that  as a result    of his physical  examination
work restrictions      were placed    which were not compatible            with
the requirements      of the position     of deputy sheriff,        and that
his name was being removed from the eligibility              list.        The
work restrictions      were based upon a mild/moderate           hearing




                                              -2-
  loss  in his      left      ear.     The examining     physician-     indicated       on
-June   II,     1985 that        "Patient    has a hearing       loss  which      could
  be potentially           dangerous      in certain   situations      and should
  not .be placed         in a position       where   he would      need to perceive
  low decibel       sounds."

               8.       Thereafter,         complainant          consulted          with    his   own
 doctor      who referred           him to an audiologist                 for     an
 ex~mination.             On July      15, 1985,         a letter       from      Audiologist
 David     M. Illich         was submitted           to respondent            indicating        that
 complainant         had a mild          high    frequency         hearing        loss    for   the
 right     ear and a flat             moderate       loss    for    the left         ear.
 Audiologist         Illich       indicated        that    complainant            was counseled
 that    he could         perform      normally        in quiet       situations          but may
 have difficulty.rwith                speech     in noisy        environments.
 Audiologist         Illich       further      indicated         that     an aided        evaluation
 was performed            on the left         ear with       the right          ear masked,        and
 that    complainant's            performance          was excellent            in a variety         of
 s i'tua tions   .

            9.    On July   23, 1985,       after   considering        Audiologist
 Illich's   opinion,    respondent      informed      complainant       that     his
 name would    remain   removed    from     the eligibility       list.

               10.       Complainant       appealed       his    rejection       to the
 San Diego          County    Civil     Service      Commission.           After    a hearing      -
 on March        17, 1986,       the Civil        Service      Commission        adopted     the
 Hearing       Officer's       Proposed       Decision        on April      15,1986,        which
 held     that      respondent       had established           affirmative         defenses     to
 the   charge         of employment        discrimination.              Complainant       has
 not   filed        suit   to challenge         the decision          and it     has now
 become      final.

              11.      The parties     have stipulated    that    should   the
 Department         prevail  herej;n-;back      pay "owed to. complainant-     by
 respondent         would be in the amount $7,667.30           from June 26,
 1985 until         February    8,1988.

             12.   When tested        by respondent        on June 11,1985,
 complainant      had a moderate        hearing     loSS in his       left    ear at
 250 and 500 hz.         (50 and 45 dB, respectively),               a mild    hearing
 loss   at 1,000     hz.     (40 dB),   normal     hearing    at 2,000      and 3,000
 hz.   (5 dB and 25 dB, respectively),                a mild    hearing     loss    at
 4,000    and 6,000      hz.    (30-   40 d~ and 40 dB, respectively),
 and normal      hearing      at 8,000   hz.    (10 dB).

             13.     Audiologist       Illich    tested     complainant   unaided
 on July 9, 1985 and October                 5, 1987.     The. results   were
 essentially       similar     to the results         obtained    by respondent
 on June II,       1985, with some differences               which could be
 attributed      to test     variation.         Complainant      was again tested



                                                -3-
on January      29, 1988        at the      Children's     Hospital        and   Health
Center..    The results           again     showed.some-differences              which
could    be attributed          to test      variation.

            14.      The tests         of Audiologist       Illich      of complainant's
hearing     in his      left      ear with    a hearing        aid    on July     9 and
October     5, 1987,         indicated     that    he had normal          hearing       in all
frequencies        for    which      he was tested.         Normal      hearing      is
considered       to be between           O and 25 dB.          There    is no dispute
that    complainant          has essentially         unaided       normal    hearing       in
his   right     ear.

              15.    The duties        of a deputy       sheriff     for  San Diego
County      include     patrol,      investigations,         arrest,     apprehension
supervision         and~~ontrol        of inmates,       and performance        of
related       work.

    ,         The officer     must have the ability     to localize                    and
discriminate        among all   kinds  of sounds,   low pitch     as                well   as
medium      or high   pitch.

              Normal        to acute      hearing       is a critical      factor    of the
deputy     sheriff        position.          The officer       is confronted      with     and
must be able          to effectively           respond     to life     and death
situations         involving        himself,       other   officers,      and the
public.       There       is a direct         ~elationship        between    the officer's
effectiveness           and the safety           of others.

             16.     Complainant       IS   background      is   as   follows:

            Complainant          suffered     ear infections         as a child,        and
his condition       was referred          to as chronic       otitis      media.      As a
result    of this     difficulty        with   his left     ear,     he had a surgical
operation    called       mastoidectomy,         which is the surgical            remo'val
-from the ear of parts--of-            diseased'   ti.ssue    from the mastoi-d
bone and other        tissues.         This operation       left     a small     cavity
in his left      ear.       The operation        is most likely         the source       of
the hearing      loss that        complainant      currently        experiences       in
his left    ear.

              The hearing         loss  has not caused        complainant     any
significant        problems       in getting     or retaining      employment     in             a
number      of different        fields,     with  the exception       of the posi-
tion     in question.

          In 1974, complainant                  briefly   served  in the United
States  Army.  After discovery                  of his hearing    loss,   the Army
gave ~im the option  of staying                  or leaving    the service.




                                             -4-
Complainant       opted,  for   personal     reasons,     to leave       the Army.
He worked     at other    jobs,    mainly    in .the security         services
field   until     joining   the Navy in 1977.          While    in the Navy,       in
1974,   he had a serious        ear infection       which    resulted       in surgery
to enlarge      the ear canal.                                                 -


               In 1981,       complainant        applied    for   the position     of
police     officer      in San Diego.            He was accepted        and completed
the police         academy.       He did     not complete       probation      and was
not told       of the reason,          although       it appears     to be because     of
a conflict         with   his   training       officer.

                 Complainant      became a reserve            deputy    sheriff     for     the
County      of San D~ego in 1980.                Generally,       the reserve       deputy's
role     in the patDOl         function      is that      of a back-up          or cover
officer.          In emergencies        the reserve         deputy     handles     calls
alone      and is required          to control        the situation        or crime
sc~ne      until     a regular     deputy      arrives.        Reserve     deputies        work
shorter        hours   and have less         training       than    a regular      deputy.
Effective         August,    1985 complainant            was required        to wear a
hearing       aid while      on reserve        deputy     patrol     due to his
hearing       loss.       In March,     1986 complainant            was relieved         of
patrol      duty.      In or about        January,       1987 he left        the reserves.

           17.     Complainant    has been employed                  by   the Department
of the Navy in the Public            Works Department                as   a carpenter
for  approximately        two years.

            18.    If   offered      employment      as a deputy    sheriff      by
respondent,       complainant        is willing      to wear his    hearing      aid
all    the time,      go in for      regular     checkups   for  the hearing         aid
to make sure       it   is functioning,          and check    the battery
constantly.        Complainant         wears    a Siemens   007 hearing       aid,
which     was the same kind          that    he wore "as a reserve       deputy
sheriff.        Complainant       has not had any problems          with    the
hearing     aid   becoming      dislodged.

             19.     Complainant     had wanted a career         in law enforcement
for 10 to 12 years.             Upon his rejection        by respondent       he
became distressed          at being turned        down for a job that         he had
been doing for several             years.     His wife became upset.           His
feelings       of self-worth       and self-esteem      suffered      because he
wanted to work in law enforcement                 and had hard times
functioning        in °other jobs.        While-working      as a reserve
deputy      after    he was rejected,       he started     going downhill,        and
this    ultimately      was one of his reasons          for quitting       the
res~rves.         He no longer      associates     with other      reserve    depu-
ties,    some of whom were good friends               of his,    because of the
rejection.         He feels     insecure    and doesn't      know where he is
going to go at this           time.



                                             -5-
                               DETERMINATION            OF ISSUES

Motion      for      Summary-Judgment


              Respondent      contends      that   its   motion     for  summary
judgment      should     be granted      on the basis      that,      as a result                   of
the decision        of the Civil       Service     Commission       of the County
of San Diego        holding     that   respondent       had established
affirmative       defenses      to the charge        of employment       discrimina-
tion,     the  doctrine     of collateral         estoppel     applies,      and
there     is no triable       issue    as to any material           fact   in these
proceedings.

              The Fair         Employment         and Housing         Commission            (FEHC)
 in a precedenci~l             decision        has ruled       that     res     judicata        and
collateral         estoppel        "should       not be applied           to limit         access
by employment           discrimination            victims      to the substantial,
 independent        remedies        available         under    the Fair         Employment          and
Housing      Act     (Act)     and whatever           other    rights       they     may seek to
secure     in another          forum."       DFEH v. San Jose,              (1984)       FEHC Dec.
No.84-18         [1984-85].           As in this         case,    complainant            in the
San Jose      case alleged            physical        handicap      discrimination              after
a city     public       safety      agency      denied      him employment            due to a
physical      condition,          and the respondent              Civil       Service
Commission        upheld       the disqualification.                  The FEHC rejected
the argument          that     .the    Commission         must defer          to the decision
to affirm       complainant's            rejection        made by respondent                 Civil
Service      Commission,          under      the principles           of comity,           res
judicata,       collateral          estoppel

             The California           Supreme      Court    compared      the procedural
and substantive        differences          in the forums         of the FEHC and
the.Board,      and it     concluded        that    the-procedures,          protections
and enforcement        services        available        to discrimination
complaints      under    the.-Act      go beyond        the Civil      Service     Act.
gtat~    P~rson~~~-~2a;:s         ~.-F~!r      ~ployment        & Housinq
Commission,       (1985)     39 Cal.3d        422,    at p. 431.

         Said Court further   rejected    the claim    that  the FEHC
or other agency can be supplanted      by Civil  Service    proceedings,
even if dealing with the same issues:

                  "The Legislature's        intent      was to give public         employees
                  the same tools      in the. battle        against    employment
                  discrimination      that    are available         to private
                  employees.       The FEHA was meant to supplement,.not
                  supplant     or be supplanted         by, existing      anti-
                  discrimination      remedies,       in order      to give employees
                  the maximum opportunity           to vindicate       their    civil
                  rights    against   discrimination.w



                                                -6-
-Sta   te     Personnel             Board              v.    Fai-r         Employmen    t     &       Housi    nq
  Commission,              supra,           at         p.    431.                                 -



             Based upon the foregoing        holdings,       a determination
 is not necessary       as to whether    the three-pronged          test    has
 been met for     determining    whether    collateral       estoppel     is
 applicable.      See People   v. Sims (1982)          32 Cal.3d    468,    484.

                     The    motion               for        summary           of   judgment            of     respondent
 is    denied.

 Liability

               The Department            asserts     that     respondent's        rejection
 of complainanr-for             the position         of deputy        sheriff     with      the
 County     of San Diego          violated       the Act.        Respondent       will      be
 held   liable       if   it  is determined,           first,     that     respondent's
 co'nduct     constitutes         discrimination           under    the Act and,         if     so,
 that   this     discrimination            is not rendered          lawful     by an affir-
 mative     defense.

 A.          Discrimination.

               The Department           alleges       that    respondent         discriminated
 against     complainant         under      the Act because            of a physical
 handicap.         (Government        Code,      Section      12940,      subd.      (a).)
 Such discrimination             is established"~f              it   is dctermined           that
 a causal      connection        exists       between      a physical        handicap        of
 complainant's         and an adverse            action     taken      against      him by
 respondent.         The evidence           need not demonstrate               that
 complainant's         condition        was the sole          or even the dominant
 cause    of the adverse           action.        Discrimination           is established
 if   the handicap        was at least           one of the factors              that
 influenced       respondent.           (DFEH v. San" Jose             (1984),      supra,
 FEHC Dec. No.84-18,               at pp~ 11; DFEH v. Louis                  Cairo       (1984)
 FEHC Dec. No.84-04,               at p. 14 [1984-85               CEB 3].

             The parties    have stipulated      that   respondent                                                    rejected
 complainant    for employment     as a deputy      sheriff   based                                                   on the
 level   of hearing    loss  in his left    ear.

          .It      is clear     that  complainant's       hearing    loss is a
physical      handicap      under the Act.       (Government       Code Section
12926, subd.         (h);   DFER v. City    of Anaheim (1982)          FER Dec.
No.82-08        [1982-83     CEB4].    The evidence       is clear     that
respondent       rejected     complainant     because it believed           that
respondent's         hearing    loss could    be potentially        dangerous      in
certain     situations.         It is now well      established      that     persons
viewed this        way by their      employers     are physically        handicapped
within    the meaning of the Act,           whether     or not they are
presently       impaired     and whether    or not they even actually
have the condition           which respondent       thought     they had.



                                                                     -7-
    American    National Ins.   Co. -(1982)    32 Cal.3d    603, 608'-610;
    DFEH v. San Jose,    supra,    FEHC Dec.    No~ 84-11    at pp.    11-12;
    Ca1. Code of Regulations,       tit.    2, Section   7293.6,    subd.
    ( i) (3) .' -

                  It   is determined,      therefore,      that                     respondent          has
    discriminated         against   complainant       because                     of a physical
    handicap      within      the meaning    of Government                        Code Section
    12940,     subd.     (a).

    B.       Affirmative           Defenses.

                Respondent       asserts    the affirmative          defenses   of
    danger    to self    and danger       to others,     which    it    must establish
    bya    prepondetabce      of the evidence.           §terling       Transit  Co. v.
    Fair   Employment     Practice       Commission    (1981)     121 Cal.App.       3d
    791,   794;   DFEH v. San Jose,         supra,    FEHC Dec. No.84-11,            at
    pp.12.

    Danger        to    Self      and   Danger      to      Others


                 Gov. Code Section          12940,    subd.    (a)(l)       provides     that
    the Act does not prohibit             an employer       from     refusing       to hire
    a physically        handicapped     person      who,  wbecause        of his      or her
    physical     handicap,       is unable     to perform      his     or her duties,
    or cannot      perform     those   duties     in a manner        which     would    not
    endanger     his    or her health       or safety     or the health           and
    safety   of others.n

                 By regulation,                   the Commission     has construed     this
    statute    to provide     for                two separate   affirmative     defenses,
    as follows:

                       (c) Health     or Safety     of Handicapped      Individual.        It
                       is a permissible       defense-for     an employer- or other
                       covered   entity     to demonstrate      that   after    reasonable
                       accommodation      the applicant      or employee      cannot per-
                       form the essential        job functions       of the position
                       in question      in a manner which would not endanger
                       his or her health       or safety     because the job imposes
                       an imminent      and substantial      degree of risk         t~ the
                       applicant    or employee.

                       (d) Health     and Safety. of Others.         It is a permissible
                       defense   for an employer         or other  covered     entity     to
                       demonstrate     that    after   reasonable   accommodation         has
                       been made, the applicant           or employee    cannot.perform
                       the essential      job functions       in a manner which would
                       endanger the health          or safety   of others    to a
                       greater   extent     than if a non-handicapped          individual
                       performed    the job.-

    Cal~ Code           of     Regulations,         title        2,   S 7293.8,      subds.       (c)     and
    (d) .


                                                         -8-




~
    --Respondent                   maintains          that    complai~ant         would      be a
danger-to         himself      and to others             because       of the     hearing       loss.
in his       left    ear.      It was conceded              by Department           witnesses-
that     without      a hearing          aid,    complainant           could    not perform
the job in the manner                  of a normal          hearing       person.          In this
regard,        the pivotal         issue      appears       to be whether           or not the
reasonable         accommodation            of allowing          complainant          to wear a
hearing        aid would       cause       complainant         to be able         to perform         all
of the duties           of a deputy           sheriff       safely      and efficiently.
Respondent           has the burden            of proving          that     no reasonable
accommodation           exists       that     would      remove      the danger         it   has
alleged.          DFEH v.        City     of Anaheim          Police      Departmen~,         supra,
FEHC Dec. No.82-08.

                 Respon~ent        did   not argue         that    allowing       complainant
to wear a hearing              aid would        constitute         an undue       hardship.
Rather,        respondent        has argued        that      even with        complainant
utilizing         the aid,       the danger        is not removed.              To support
its     position,        respondent       presented          three     expert    witnesses
to testify          as to the danger            complainant         would      be to himself
and others          as a deputy        sheriff.         Such witnesses           testified,
in effect,          that    a person      wearing       an aid      has less       than
complete         hearing.

             Audiologist         Willena   Beyer      practices        in the area       of
preplacement       screening        and consulting         supervisor       at the
Rees-Steely      Clinic.         She consulted       with     Dr.    Kim Fuller        Who
performed     complainant's           test at the clinic            on June    11,1987.
She recommended          against      the prescribing         of a hearing         aid   for
complainant      based on tbe fact           that     it   would     be ineffective
as to complainant's            loW frequency        bearing       loSS.

       --Marion                     J.  Fedoruk,   M.D. , a     b"oard    certified         specialist
in   the    field          of       occupational    medicine,        explained        the    Peace
Officer      Standards       and Training        (POSTj guidelines,           which     were
established        pursuant       to the authority         of Government         Code
Section      13500.      As explained         by Dr.    Fedoruk,     POST conducted
extensive       research      into     the hearing      needs    of patrol       officers
in order      to determine          the critical      hearing     demands      of the
job.      Once having        determined       the critical       hear"ing     demands     of
the job,      POST had to decide            how to choose        a particular
testing      device    which     would    be both     job related        and a
feasible      method     of pre-employment           screening.        After     care-
fully     examining      all    of the possible         testing    methods,        POST
concluded       in its     guidelines       as follows:

               -The lone remaining        approach   to establishing        job-
               relatedness     consists    of a rational      determination
               made by -expert-       judges.     The guiding      concept    in
               this   approach   is one of establishing          standards      which
               -match-    the performance      demands of the job.          The
               success of this      approach    is predicated       upon having
               the proper
                . b          type and amount of information             about the
                                -
                JO   ...




                                                   -9-
             Thus,   POST determined       -to base its      guidelines     tJpon-
 the opinions      of experts     on hearing,-who       in turn       would base
 their  opinions     on extensive      knowledge    of the requirements            of
-the job.     POST conducted       its  study    as follows:        -

               -A preliminary            review      of the literature              led to
              telephone        and in-person             interviews         of experts        on
              hearing.        All      experts       contacted        tended      to agree
              that    even though           the critical          skills      for     law
              enforcement          officers        involved        speech     comprehension
              and sound localization,                    the most appropriate               test
              would     involve        pure    tone screening.               One expert,
              Dr.    Edward      Carterette,           agreed     to both       review      the
              extensive       literature           and to try         to help       establish    a
              relaci~nship          between        pure     tone    testing       and the job
              demands      of a patrol           officer."

             POST conducted         an extensive        evaluation          of the
available     scientific      literature        and practical           information        to
determine     the relationship           between    hearing       testing       and job
performance.         POST th~n      convened     a panel      of experts          who
evaluated     all    of the available         information        and selected          the
hearing    test    guidelines       subsequently        adopted      by POST.         The
guidelines      state:

             R...The      panel     felt"    strongly      that     a moderate         pure
             tone    standard       could      be easily       related      to the
             hearing      needs     of the job.          Evidence        presented         to     the
             panel     suggested        that    when pure        tone    performance
             decreased       considerably,           speech      comprehension           .
             declined      as well.          In particular          the ability         to
             understand       speech       in background           noise    (a frequent
             and important          task     performed.      by patrol        officers       )
             was affected.        ..R                    ~r

          While   POST considered   the possibility        of allowing
the use of hearing    aids   as a method   of reasonable        accommoda-
tion,  the con'ensus    of expert  opinion   was that      this    would
not be accep~ble,     as follows:                        ,

                  There was also agreement        that   while   hearing
             aids tend to improve        pure tone performance,        they                       do
             not appreciably      improve.speech     understanding.
             Therefore,   hearing     aids were not considered
             acceptable..
             The guidelines             adopted         by POST are     as follows:

             .Hearinq

                   A pure      tone        audiometry       threshold      test    with     the
                   following          criteria:



                                              -10-
               Frequency            500     Hz           1000      Hz       2000           Hz         3 0 0 O ,Hz


               Each    ear           25 dB                      25 dB             25   dB.                35 dB


                                                     or

              No greater     than  30 dB                 at     anyone      of     first             3 fre-
              quencies,     and average                  for'     4 frequencies                 no    greater
              than    30 dB

               "Hearing      aids     not        permitted."

           At the-J time    of his   rejection,         without       a hearing
aid,  complainant's      hearing   in his       left    ear was 45 dB at
SOD Hz and 40 dB at 1000 Hz.            Thus,        complainant's        hearing                               in
the left   ear did    not meet POST's        recommended           minimum.

              Dr. Fedoruk was a consultant                   to Med-Tox projects
which set preemployment               standards       for correctional             officers
in the State of Connecticut,                 and for deputy            sheriffs        in
Lake County,        Illinois.         The Lake County project                 studied       the
job requirements           of several       hundred      deputy      sheriffs.           The
corrections       officer      study used a similar              method to the POST
study,     using validated           scales    organized       to job demands,              and
identifying       critical       tasks of the job.             Both POST studies
and Med-Tox studies            showed that        hearing      ability        was critical
to law enforcement            positions.         This includes          far more than
the ability       to understand          speech.        A patrol       officer      must not
only be able to hear sounds but recognize                          and identify           them,
and tell      where they are coming from..                   Examples       of the use of
these skills        cited     by the POST study. include                incidents         where
an officer       heard leaves         cracking     under a bush and found a
suspect     hiding,       where the officer           located      a suspect
because he heard rustling                noises     in a closet         even though
people     around were yelling,             where another          officer       located       a
suspect     because he heard the sounds of papers                          being thrown
about in a room, amidst background                      noise of traffic,             wind,
and dogs barking,            where the officer           during      a barricade
situation      had to localize           and distinguish           the sounds of a.
suspect's      movements from those of other                   officer's         movements,
and where the officer              responding.      to a call        of a disturbance
upon approaching           the residence        .wa"s able to hear and
recognize      the sound of a bullet              entering       a rifle       chamber
despite     background        noise of traffic.            .

           Dr. Fedoruk's      opinion   was that      complainant  would
have more problems     in performing       the job than would a person
without   his hearing    loss,    and that    it would be very
dangerous    to let him assume the full          duties    of a deputy
sheriff.



                                                  -11-
                 Bradley         Billings,          Ph.D.      is an audiologist                who has
 been in practice                lS years,          and has served             as the audiologist
 consultant          for    the San Bernardino                   County      medical        standards
 project,        a sci-entific             project      designed          to establish
preemployment              screening          standards          and jointly          funded        by the
United        States       Civil       Service       Commission           and the State             of
California.              He is consultant               also      to the cities             of San
Bernardino,            Riverside,           and Indio          which      have adopted            his
standard.            Dr.    Billings          by his      testimony          showed       that      he was
well      aware      of the legal             requirements            concerning          hiring        the
handicapped            and the duty              of reasonable            accommodation.                Dr.
Billings         concurs         with      POST that         the pure        tone     test      is a fair
sampling         of the ability               of the unaided              ear to function               in
the real         world,.      but that           a pure     tone test          using      a hearing
aid    is not       an 'a~curate            prediction          of performance              with      a
hearing        aid.       Dr. Billing's              opinion        is that       he can predict
wi~h      reasonable          audiological            certainty          that     a person
attempting          to correct            a hearing         loss      through       the use of a
hearing        aid will          not respond          as well         as a normal           hearing
person       in the job situation,                    because         a hearing         aid    is simply
a limited         band amplifier                 to an impaired            ear.       Such a person
would,       even though            wearing        the hearing           aid,     pose      a significant
risk      to the safety              of others        in attempting             to perform           entry
level       peace     officer          duties.l/

              Dr.    Billings      explained        that    the particular         model
of hearing-aid           used by complainant;            the Siemens        007,     uses
a signal      processor        which    deliberately          does not     amplify
frequencies        below      800.    This     feature      is helpful      when it
comes to understanding               speech,      because       it reduces     some
background        noise.       However,      this     same feature       is a
disadvantage         in hearing       low pitched        sounds,      so that      a
pers~n     using     such a hearing          aid will..     not be able      to tell
where    the sounds         are coming       from.       ..

            Although  there are many jobs for which                                    the    ability
to hear low pitched       sounds is not critical,   the                                job    of an
entry  level    peace officer   is not one of them.

             Dr. Billings    testified   that                     the ability          to
discriminate     among non-speech      sounds                     is a basic          hearing
skill    in successful    job performance.                          While this         skill       would



1/ The fact       that     an expert     witness    may not have personally
examined      complainant      is not in itself          significant.          In a
Precedential         Decision    dealing      with  hearing       loss    the FEHC
itself     found     the testimony       of respondent.s          expert,     who did
~      examine    complainant,        to be more persuasive             than   the
DFEH expert,        who ~      examine      complainant.           (~       v. City   of
Anaheim,      supra,     FEC Dec. No.82-08.



                                                  -12-
not be important               for    certain        jobs,     such as typist,            it     is
very     important         for     peace     officer        jobs,      as shown by the POST
study.       In some jobs             in which         this    ability       is important           some
kind     of accommodation               can be made.             In contrast,         in the case
of a peace         officer         who even with            a hearing        aid   is unable         to
effectively          localize         sounds      or discriminate              among non-speech
sounds,      the public,            fellow       employees,          and the officer
personally         are placed           at risk.          The officer          is less       likely
to be able         to perform           the essential            tasks     of the     job
successfully           ( e .g ., suspect          may escape           because     of, failur.e        to
effectively          recognize          sounds)        and more likely           to endanger
the safety        of the officer              and others           than    a person      without
such a handicap..
                          ~
            Respondent       presented   ample    evidence   that     the use of
a hearing     aid     is not a reasonable      accommodation      for    an entry
level   peace     officer.

                 The   Department's          evidence        did    not    rebut     the    above
determination.

              Audiologist           Tana Triantos    testified       that   she               was
not familiar        with   all       aspects   of the job of a deputy
sheriff.       Nevertheless,            she stated   that      she felt   that                with
complainant's        hearing         he would    be able     to function     as               a
normal    hearing      person.

             Dr. Phillip       Azer,    an otorhinolaryngologist,
practicing      in the ear,       nose-and      throat      specialty,       had
examined     complainant       on two occasions            and reviewed       all   of
the audiograms        introduced      into    evidence.          He had not,
reviewed     the job description           of dep~-ty       sheriff    prior      to his
testimony.        He nevertheless        stated      his    opinion    that
complainant,       while    wearing     a hearing        aid,    would   not be a
danger     to himself      or others     as a deputy          sheriff.

               Audiologist       David Illich      conducted      hearing     tests
upon complainant           on July 9, 1985 and October              5, 1987 (see
findings       of fact     8 and 13).       He found that with          a
hearing      ai.d complainant's        hearing     fell   within     normal     range
for all      frequencies       tested.      Mr. Illich     testified
that    complainant,        with    the aid, .would not have problems               with
localization        or sound discrimination             and that     he could
perform      the job of deputy         sheriff    with the hearing          aid as
well    as any other        applicant    who had normal hearing.               He was
first     shown the job description            of deputy sheriff          during
his testimony.

            After   consideration                of all  expert   testimony,
Dr. Fedoruk      and Dr. Billings                are determined     to be the most
credible     and knowledgeable                in the area of the use of a
hearing    aid as a reasonable                  accommodation   for the entry
level    of deputy   sheriff.


                                                -13-
    ..
    -.




         Unreliabi.litv               of    Accommodation

                         Respondent        maintains      that    additionally       the use of                             a
         hearing       aid would       be an unreliable           accommodation,        and
         therefore,          unacceptable.           This   argument      is based     essentially
         on conjectural           allegations          of proneness       to inner     ear
         infection        which     would     interfere      with    the use of the hearing
         aid,     unreliability          of the hearing         aid,     and a likelihood
         that-complainant             would     not wear his       hearing     aid   on the job
         since      he had forgotten            to wear it      on occasion        as a reserve
         deputy      sheriff.         These.allegations           were not established             by
         the weight          of the evidence.

         Respondent's               Ex.clusion2~              All       Pe£so!?;s        Wit!:!  Hearinq      Aids   From
         the   Job          of   Deputy       Sheriff         as    a    Blanket          Policy


                       The Department             maintains        that    respondent        cannot
         generalize       about      all    individuals         who wear        hearing      aids,
         stating     that     respondent's           policy      in the application              of
         hearing     capability          standards        would      exclude     all    hearing       aid
         wearers,      including         those      people     who have performed              police
         duties     competently          and safely         in the past.           In this
         connection        the Department            refers      to the fact         that
         complainant         has performed           his    reserve       deputy     sheriff       duties
         in a safe       manner.           As previously           discussed,         however,
         complainant's          duties      as a reserve           deputy     sheriff,       although
         similar     to a degree,           were not all-encompassing                   of the duties
         of a regular         deputy       sheriff.

                        Respondent           evaluates        the individual's           hearing       loss,
         and evaluates          whether         a hearing         aid can be a reasonable
         accommodation          for      the particular             job in question.            As stated
         by. Dr.     Fedoruk,        it    is not complainant's               hearing     aid which
         resulted       in his       failure       to meet the: physical              requirements           of
         the    job,    but    his      hearing      loss.        The evidence        established
         that     the use of a hearing                 aid does not adequately                 correct
         hearing      losses       for     the job of entry-level                 peace    officers.
         Although       respondent           did not test           complainant's        hearing       with
         a hearing        aid,     he was given            individualized          a~sessment        and
         evaluation.

         ResDondent              Established            the     Defenses            of    Danger      to   Self
         and       Danqer        to    Others.

                       It was conceded by DFEH witnesses             that   without   a
         hearing     aid,   complainant     could not perform        the job in the
         manner of a normal hearing           person.      The critical      importance
         of acute hearing,        including     the ability    to discriminate
         among non-speech        sounds,    and the ability      to localize,       was
         made obvious       by the POST studies        and confirmed       by the
         Med-Tox studies.         The weight      of the expert      testimony
         established      that   a hearing    aid would not be a satisfactory
         accommodation       even in the best of circumstances.


                                                                    -14-




~
.
    .   '.




                        While    complainant    may be able  to perform        adequately
             a great   deal   of the time,    at any moment his      hearing      loss
             could   make the difference      between   life and death       for    himself
             and his   co-workers,      and members   of the public.

                             Where the        risks      are great,         FEHC precedent           holds
             that     the defenses          of danger         to self       and danger        to others        may
             be established             even if       it  cannot        be predicated         with
             certainty         when,      how, or even whether                 the risk     will     suddenly
             materialize.             In ~          v. ~o~thern           Pacific    Transportation
             Company        (Katzer)       FEHC Decision           No. FEP 78-79          EF-035phD
             (1980)       [1980     CEB 18] the defense                 of danger      to others        was
             established          in"lhe      case of a locomotive                engineer       who had
             suffered        seizures       or syncopes          even though         in that       case    the
             complainant          had an extensive              safety      record     and would        be
             able     to perform         safely       on most,       if    not all,      occasions.          The
             safety      defense        was established            even though         complainant         might
             never      suffer      a seizure         on the job.           In that      case FEHC also
             helrl    that     the defense         of danger         to self      was established.
             Complainant          was likely          to suffer         syncopes     in the future;           one
             of these        might      occur     at a time        when he was conducting                the
             train~        Thus there         was an "identifiable,                 substantial         and
             immediate"          danger     to complainant,              even though        the accident
             might      never     oc-cur.                   .


                           By the same token,              complainant's        handicap        constitu-
             tes   a substantially             increased     risk    of harm,       although       we can-
             not predict        with     certainty       when that       harm will       occur.
             Complainant's           handicap       means that     he cannot        perform      the     job
             of deputy       sheriff       without      endangering.      the safety        of others
             to a significantly             greater      degree    than     if  the job were           per-
             formed     by someone         without      his handicap.          Also,     it   presen~s
             an identifiable            substantial        immediate      danger      to complain~ant,
             in view     of the nature            of the risk      of harm.

                         Thus, respondent      has established      its   affirmative
             defenses    that    with or without   a hearing    aid,    complainant
             cannot   perform     the job of deputy sheriff      without       risking      his
             own safety     to an imminent     and substantial      degree and
             endangering      the safety  of °others    to a significantly          greater
             amount than if a person without          t~e handicap      performed       the
             job.

                          By reason of the foregoing      respondent  did not
             discriminate        against  complainant on the basis   of physical
             handicap     within     the meaning of Government   Code Section
             12940(a)(1).




                                                            -15-
                                                                                                                                               .-
            ..
    ..;.,




                                                               *        *          *       *     .-
            --




                                  The   Accusation                 is       dismissed.

                              Any party     adversely      affected     by this     Decision      may
                 seek judicial      review      of the Decision        under   Government       Code
                 Section    11523 and Code of Civil             Procedure     Section     1094.5.
                 Any petition     for    judicial     review      and related     papers     should
                 be served     on the Department,          Commission,       Respondent,      and
                 Complainant.


                 DATED:     (ll     ~    ..w \ (.,. =I   I 9       ~ '6



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                                                                                                           ..\
                                                                                   MARILYN             L.'NELSON
                                                                                   Administrative                    Law       Judge
                                                                                   Office         of        Administrative                    Hearings

                 MLN:hk




                                                                                  -16-




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