Capt. Timothy Thalken alleges Lodi violated the Americans With Disabilities Act and state employment law by keeping him from his firefighting job after he had surgery in August 2003 to remove a tumor between his right ear and brain.

The lawsuit states the city gave Thalken a desk job in the two months after the surgery, which left him deaf in his right ear. But Lodi wouldn't return him to front-line duty for more than a year, even after Thalken's doctor cleared him for work Oct. 14, 2003.

In 2004, city officials told Thalken he would be fired if he did not apply for a desk job that had not yet been created, according to his suit. They refused his request to have his hearing tested.

Thalken paid for the tests himself and obtained opinions from three experts stating he still could perform his firefighting duties, the lawsuit claims. On Feb. 28, 16 months after being cleared by his doctor and six months after field tests showed he could perform his job, the city returned Thalken to front-line duties.

The suit was filed in Sacramento's U.S. District Court on March 15 after mediation efforts failed to bring a settlement. Thalken's suit seeks reimbursement for his attorneys' fees, payments to experts to show he could perform his job, overtime he would have been assigned had he been placed on regular duty, and unspecified damages. His suit also seeks to have the city end its discrimination against employees with hearing loss and have Lodi's human resources staff attend training on accommodating disabled workers.

Thalken declined comment on his suit.

"Captain Thalken has filed the suit as a last resort," his attorney, Patricia Kramer said. "He just wants to do his job. The only reason he wasn't working was because he had hearing loss, and there's the perception that just because a person has hearing loss he can't do his job.

"Although he has proven he can do the job, we want the public to know that if they're crying for help, he can hear them."

Although the tests show Thalken has no difficulty meeting job duties with only one functioning ear, city officials also refused to purchase a $500 helmet outfitted with a sound amplifier to accommodate his disability.

Anyone trying to get a job as a firefighter with the same hearing loss wouldn't qualify under the National Fire Protection Association's standards. But the group makes allowances for veteran firefighters who suffer hearing loss during their careers, Kramer said, adding Lodi's fire department has no written standards.

The case is assigned to Senior U.S. District Judge Edward J. Garcia. A scheduling conference is set for June 17. Lodi's City Council is scheduled to discuss the matter in closed session Wednesday, City Attorney Steve Schwabauer said.

"The city legitimately felt it was a risk to him and his companions for him to be on the job," Schwabauer said. "There are national standards that say you have to be able to hear in both ears."

Schwabauer disputed Kramer's assertion that the city knew about the testing. He said the tests, which were performed with Lodi Fire Department equipment, were done without the knowledge of then-City Manager Dixon Flynn and Fire Chief Mike Pretz.

Peter Iturraran, president of the Lodi firefighters' union, declined to answer questions about fire department equipment used for Thalken's field tests, but said only off-duty firefighters participated.

By Jeff Hood