Failure To Take Advantage Of Reasonable Accommodation Precludes ADA Claim

Jo Preston works in the crime prevention office of the North Las Vegas, Nevada Police Department. Preston sued the City, alleging she was the victim of disability and gender discrimination.

With respect to her claim under the Americans With Disabilities Act (ADA), Preston alleged that after her brain surgery in 1995, she was left completely deaf in one ear, and has a hearing loss of 30% in the other. To qualify under the ADA, an employee must show that her impairment substantially limits one or more major life activities. Preston argued that her hearing loss limited her ability to work and engage in interpersonal communications.

A federal court disagreed with Preston, and dismissed her ADA claim. The Court found that “while Preston suffers some hearing loss, she has available to her a hearing-assisted device and uses it only occasionally, choosing instead to function in spite of her hearing loss or read lips if possible. In opposition to this argument, Preston asserts that ‘having to read lips and close off her peripheral vision limits Ms. Preston’s ability to excel in interpersonal relationships without reasonable accommodation.’ Of course, ‘excelling’ in a major life activity is not the standard for determining a disability under the ADA. There is no dispute that Preston has a hearing impairment which has impacted her communication and work. But that showing is insufficient to establish that one of Preston’s major life activities is substantially limited, especially since Preston chose not to take full advantage of the hearing-assisted devices available to her.”

Preston’s gender discrimination claim fared no better. Preston argued that she was subject to a hostile work environment based largely on a September 19, 2002 memorandum signed by 35 Police Department personnel.

The memorandum asserted that during a crime prevention presentation, Preston claimed that “when walking a sidewalk occupied by teens, ‘you’ should claim the middle, show confidence, look the teens in the eye, and by thus challenging the teens, they would move out of the way. According to the memorandum, several officers verbally disagreed, and made comments like ‘that’ll get you shot around here.’ The memorandum also related that Preston told the group that she instructed youth in the DARE program to ‘say no’ to police officers ‘if it doesn’t feel right to them.’ The memorandum expressed the signators’ belief that Preston ‘hasn’t a clue’ about the real world, and expressly criticized Preston for her lack of professionalism and the way that she handled the presentation.”

The Court found that there was no indication in the memorandum indicating that it had anything to do with “Preston’s race, gender, age or disability. Preston’s unsupported assertion that it was founded on discrimination is insufficient to support a claim of hostile work environment.”

Preston v. City of North Las Vegas, 2007 WL 1016995 (D. Nev. 2007).

This article appears in the June 2007 issue