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KARBUSICKY v. CITY OF PARK RIDGE

January 22, 1997

KURT C. KARBUSICKY, Plaintiff,
v.
THE CITY OF PARK RIDGE, a municipal corporation, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff, Kurt C. Karbusicky ("Karbusicky") has filed a one-count complaint against defendant, City of Park Ridge ("City"), alleging that defendant violated section 107(a) of the Americans with Disabilities Act, 42 U.S.C. ยง 12117 (the "ADA"), when it reassigned plaintiff from his job as a Park Ridge police officer to a Park Ridge community service officer ("CSO"). Defendant has filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, the court grants defendant's motion.

 Facts1

 Plaintiff has a congenital total hearing loss in his left ear and is unaware of any medical procedure or device to correct his hearing impairment. Despite his hearing loss, plaintiff has been able to function in various activities throughout his life. As a student, plaintiff did not have problems hearing in the classroom; he would compensate for the loss of hearing in his left ear by sitting closer to the teacher and by turning his head so that his right ear faced the teacher. Plaintiff's hearing impairment also did not preclude him from serving in the military. Plaintiff attended Northern Illinois University and, while in college, served in the National Guard. The National Guard knew of plaintiff's hearing loss. Then, from 1986 through 1988, plaintiff went on active duty with the United States Marines ("Marines"). The Marines also knew of plaintiff's hearing loss and examined him for his impairment. Plaintiff contends that neither the Marines nor the National Guard classified him any differently because of his hearing loss.

 After his duty with the Marines, plaintiff applied for the position of police officer with defendant. In the application process, plaintiff disclosed that he suffered from a congenital total hearing loss in his left ear. Plaintiff also stated that he had formerly served with the National Guard and Marines. Plaintiff took defendant's physical examination and passed. on October 13, 1989, plaintiff was hired as a Park Ridge police officer. Thereafter, plaintiff passed defendant's field training officer program and two-year probationary period.

 
Although officer maintains good defensive practices and adheres to proper safety training, officer's inability to hear out of one ear causes hazardous situations for the officer and his fellow officers. Officer Karbusicky is a young, enthusiastic and energetic officer. . . . Officer Karbusicky's hearing continues to be a problem in the area of officer safety and his inability to hear radio calls and normal conversation when mixed with extraneous noise.

 Based on this report, the Director of Public Safety for the City of Park Ridge, John Baudek, requested that plaintiff have his hearing evaluated by Dr. James Cambell. On October 29, 1992, plaintiff visited Dr. Cambell, who confirmed that plaintiff had a profound sensorineural hearing loss in his left ear and normal hearing in his right ear. In a letter dated November 5, 1992, Dr. Campbell stated that plaintiff's hearing loss is permanent and is not correctable with surgery or medication; he advised plaintiff to obtain a CROS hearing aid, which "would allow [plaintiff] to have hearing from both sides, and would help prevent hazardous situations in his work because he could localize sound better."

 Thereafter, plaintiff obtained and wore a CROS hearing aid while working on the streets as a police officer. Yet, plaintiff felt that the device did not help him and that, in fact, it created more hearing problems for him than he had without the device. Plaintiff returned to see Dr. Campbell several times, and Dr. Campbell's office sent the hearing device back to the manufacturer at least twice. On March 18, 1993, Lynn Anderson, an audiologist associated with Dr. Campbell's office, evaluated plaintiff. Plaintiff informed Anderson that the CROS hearing aid had not improved his hearing. Anderson and an audiologist at Lutheran General Hospital suggested that plaintiff try the CROS-Plus hearing aid to improve his hearing.

 After discovering that the CROS hearing aid failed to improve plaintiff's hearing performance, Deputy Chief Colangelo wrote a letter dated March 26, 1993, which plaintiff received and which offered plaintiff the following options:

 
Option Number One : On your own and at your own expense, acquire the hearing device that Lutheran General Hospital said may benefit your hearing. If you chose [sic] this option, I will put you in a light duty capacity for a reasonable amount of time so that adequate testing and adaptation of the device can be made. A further determination would be made after that period.
 
Option Number Two : Seek a disability pension with the police pension board.
 
Option Number Three : Explore the possibility of transferring to another area within the police department or another city department where your hearing problem would not be a concern.
 
Option Number Four : Resign from the police department.
 
Option Number Five : If you do not take any of the above options, the department will be forced to seek your dismissal through a hearing with the Fire and Police Commission Board.

 Defendant later offered to pay for part of the CROS-Plus hearing aid, which plaintiff did not try because the CROS-Plus was significantly more expensive than the CROS and because he had had a bad experience with the CROS. Defendant then offered to pay the full cost of the CROS-Plus, but plaintiff still refused to try it.

 On March 31, 1993, plaintiff and his attorney met with Deputy Chief Colangelo and defendant's attorney to discuss the options offered to plaintiff in the March 26 letter. By the end of the meeting, plaintiff still refused to accept any of the listed options. Deputy Chief Colangelo then sent a memorandum to the police officers who had personal knowledge of circumstances in which plaintiff's hearing had been a problem. The memorandum set forth, in part:

 
You have stated to your supervisor, Commander Kaderabek that you have personal knowledge of an incident or incidents that involved a ...

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