A judge dismissed part of a lawsuit filed by a woman who alleges the city of Los Angeles used a false hearing loss diagnosis as the basis of denying her a police civilian job.
In a hearing Wednesday, Los Angeles Superior Court Judge Rafael Ongkeko tossed plaintiff Nicole Downey’s claim for failure to hire in violation of public policy. He also said she will have to show how her remaining claims — discrimination based on perceived disabilty, failure to accommodate and failure to engage in the interactive process — can move forward based on the statute of limitations.
Downey applied in October 2016 for the position of LAPD police service representative, which entails dispatching police patrol cars as well and answering 911 calls, according to her court papers.
Downey says she took a written exam the following month and in January 2017 was interviewed by a panel. She passed a background check and the next month, the city notified her that she had passed the hiring requirements and she was given a conditional job offer, according to the suit.
But on April 19, 2017, the city gave Downey a medical examination and a doctor alleged she had a minor hearing loss and that she failed the test, the suit says.
A “shocked” Downey scheduled an appointment with her own physician and also made appointments with specialists, according to her court papers. She underwent at least 10 more hearing exams and, contrary to the city physician’s findings, the plaintiff’s doctors concluded that she could “effectively carry out the essential job duties without restrictions and that she did not need a hearing aid,” the suit states.
One of the specialists wrote the city doctor a letter stating that Downey’s hearing would not be an issue because she would be wearing an amplified headset while using the phone, according to the suit, which says she “incurred significant out-of-pocket expenses as a result of having to visit … medical specialists and take the additional hearing exams.”
However, the city still refused to hire Downey, allegedly because of her perceived disability, and the conditional job offer was withdrawn in July 2017, according to her court papers.
Downey says she filed an appeal with then-LAPD Chief Charlie Beck and to Elena Nihoa-Asucan, commanding officer of the LAPD’s Personnel Department, but neither responded.
In a motion to dismiss all of her claims, the City Attorney’s Office maintained Downey needed to file her lawsuit by mid-March and that she waited too long by doing so on April 2.
Downey countered that two closures of the Superior Court during the pandemic from March 17-19 and from March 20 to April 16 put the statute of limitations on hold and allowed her to bring her case when she did.
But Ongkeko said Presiding Judge Kevin Brazile’s court orders shows that although the first court closure constituted a court holiday that extended the deadline for the statute of limitations, the second did not.
In dismissing Downey’s failure to hire claim, Ongkeko said a state appellate court has ruled that a worker seeking a job does not have a cause of action for failure to hire because no duty exists between the prospective employee and employer.
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