APD's Sleep Disorder

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Piling On

To hear the department tell it, through its response to her EEOC complaint and in documents provided to Lynch as part of her civil suit, the problems Lynch has had with the APD have little – or nothing – to do with her medical issues, and everything to do with her inability to perform up to APD standards.

A childhood drawing by Lynch

According to Connor, when Lynch first came to the firearms unit, she was "enthusiastic about being in the unit and working with other detectives," which he noted in Lynch's final performance evaluation, covering the period from December 2010 through March 2011. (He gave her a rating of "needs improvement," which in APD-speak means the officer's performance "is considered to be barely satisfactory.") But he soon realized that her work was deficient. She was unable to effectively manage her time, didn't understand how to work APD's case management system, didn't write thorough reports, and disobeyed his orders to not "self-assign" cases. In at least one instance, she failed to properly handle evidence. She was repeatedly late to work; she didn't fully understand the firearms laws she was tasked with enforcing – for example, she had failied to give back to a suspect a large-capacity ammunition clip that she mistakenly thought was illegal for him to possess; and after being assigned to help file cases involving asset forfeiture, she failed to submit several cases in a timely fashion, which could have cost the department some $15,000 in assets.

Moreover, in his affidavit, Connor said that she never even told him about her narcolepsy diagnosis until roughly a month after she'd come under his supervision – meaning he couldn't have been motivated by retaliation when he changed her working hours from a 10am start to an eventual 8am start. That was simply done so that her working hours would "more closely mirror" his, enabling him to more closely supervise her work; when he made that change, Lynch never asked him for a modification based on her medical condition – "Lynch never asked me for an accommodation of any kind," he said.

Connor was not alone in his criticism. Although he wrote in his 2010 memo that he saw no issues stemming from her narcolepsy, by March 22, 2011 – the day Lynch was called into the meeting with her chain of command – her previous supervisor, Vas­quez, wrote a memo to APD's Risk Manage­ment with a plethora of details about Lynch's shortcomings as an OCD detective. "I would like to start this [memo] by stating Detective Amy Lynch has issues that need to be addressed," he began. Many of the shortcomings Vasquez lists in the 2011 memo curiously dovetail with the complaints Connor detailed in his notes about Lynch, his final evaluation, and in the audio of the March 22 meeting. Vasquez complains that she was failing in her report-writing and case documentation – including in the way she documented evidence in several cases, for example, and that she seemed to be investigating criminal matters beyond the narcotics aspect in some of her cases. "I do have concern for her safety and the safety of people that work around her," Vasquez told RMD.

In his final evaluation of Lynch's performance, Connor included a section of criticism from Vasquez, who, Connor wrote, provided the information – including that although Lynch at first "appeared to understand the job requirements of working mid-level narcotic investigations," he later found her to be seriously challenged in this regard and he "often" met with her to discuss her work. After she left his unit to move to Connor's, Vasquez wrote, he decided he should conduct a broader review of her work. He concluded that "every investigation ... Lynch is involved in needs review."

Vasquez's comments, taken in combination with Connor's reported observations, certainly portray Lynch as incompetent, regardless of her medical condition. Yet they also seem self-serving; while Connor's memo and Vasquez's notes make it sound as if Vasquez had not previously weighed in on Lynch's performance, he actually had already done so. In October 2010, he signed off on an evaluation that rated Lynch as providing "satisfactory" performance – and he rated her report writing and "overall investigation" in particular as "highly effective." It was not as high an overall rating as she'd consistently received before transferring to OCD, but it was certainly better than the barely passable score Connor would deliver just months later. More­over, none of the comments Vasquez contributed for Connor's evaluation were included in his original evaluation of Lynch's performance. Rather, he wrote only that working mid-level narcotics cases was "new to her" and that she was "working very hard to obtain the skills necessary to handle the job," including requesting additional training. "I believe what ... Lynch needs is more experience in the field and to work more closely to her peers," he wrote.

Despite this context, in his affidavit filed with the city's EEOC response, Connor offered for the entire APD a complete denial that anything unseemly or unlawful had happened in its dealings with Lynch. "At no time did I or any other member of the Austin Police Department discriminate against her because of her medical condition with respect to assignment, her work hours, or any other terms and conditions of her employment as she alleges," he said. "Her claims that I or any other member of the [APD] engaged in harassment and retaliation because of her medical condition or for any other reason is untrue."

Fit for Duty?

Lynch does not see the APD's role as so benign, in part because of the obstacles the department has erected to keep her from returning to work. She was required to submit to a lengthy fit-for-duty evaluation first in November 2011. Her specialist, Dr. Soe Aung, signed off that she was, indeed, fit to return to work – as far as a sleep medicine specialist could say. The lengthy form also requires a doctor to sign off on whether an officer can perform a long list of skills and tasks deemed "essential" to police work. Aung was able to answer many of them in the affirmative – including whether Lynch can "sit or stand for long periods of time" and "drive a car." In other instances – such as whether Lynch "know[s] criminal justice system" or "know[s] procedures to search & preserve crime scene" – Aung responded "don't know," because, as he noted on the form, as a sleep/neurology specialist, he wasn't qualified to assess those skills. "In short, Narcolepsy is [a] condition where [a] patient can get excessive daytime sleepiness unless adequately treat[ed]," he wrote. "However, Narcolepsy should not have any [effect] on her cognitive and physical skills."

That evaluation didn't impress the APD. Later that month, Chief Art Acevedo penned a memo to the director of civil service, asking for a second opinion. "Due to the insufficient and incomplete information provided in this report, I question whether Lynch is sufficiently physically and mentally fit to continue her duties," Acevedo wrote. The Civil Service Commission retained Dr. J. Douglas Hudson, board certified in sleep medicine and neurology, to give Lynch a second look. This time the results were firm: Hudson answered all the questions in the affirmative, and it seemed that Lynch was unquestionably fit for duty. His only caveat was that a modest accommodation would be necessary: Lynch, he wrote, should be "allowed to begin work day from between the hours of 9am & 10am." But even that wouldn't necessarily have to be a permanent change, he wrote in a two-page evaluation report, depending on the outcome of additional tests of Lynch's sleep. "We are essentially looking for a picture of her sleep architecture to see if some adjustments can be made which will possibly further improve her early morning inertia, and possibly allow for a release of the accommodations requested to join the work force between 9am and 10am."

Lynch was optimistic that she could return to work – but that's not how it played out. "I have reviewed your requested accommodation and the needs of the Department and have determined that your requested accommodation is not reasonable for a police officer and/or ... Detective. Even if it were reasonable, however, it would impose an undue hardship on the department," Acevedo wrote in an April 16, 2012 "change of duty status and direct order" memo. The "Department has not been able to craft a reasonable accommodation or one that would not impose undue hardship on the Department that would allow you to maintain your current position."

To Lynch's attorney Placzek, it seems clear that the department is simply unwilling to engage in the ADA's reasonable accommodation process – one that is supposed to be "interactive" and aimed at a mutually beneficial solution. "Failure to engage in good faith in accommodating her is a violation of the ADA" in and of itself, he says. "The question is, is the accommodation [she requested] reasonable? Are there other people who get to show up late for work? Not just people with disabilities, but people who live far from the city? Or people who have child care duties?"

The department does make those sorts of accommodations, notes Lynch – including for a former colleague of hers in OCD, under Connor's supervision, who was allowed to come into work at 10am every morning. Placzek says Lynch has been singled out for discrimination and "harassment related to her disability." He says, "She has always been dedicated to the Austin Police Depart­ment. She is a longtime employee; she has support from her fellow officers, and she loved what she was doing. You want somebody passionate about that type of work – the public gets more bang for the buck with employees who are passionate," he says. "I can't think of anything besides the narcolepsy that would cause this."

Nonetheless, the city insists that it is not discriminating against Lynch based on her narcolepsy, a protected condition under the ADA. Rather, in its EEOC response, the APD makes the case that it needs all of its officers to be able to report for duty at any time, day or night, and that no exception to that rule should be made for Lynch, whom Assistant City Attorney Mike Cronig labels in the EEOC response as a "liability to her unit."

Ultimately, the accommodation that Ace­vedo rejected as unreasonable would be to let one employee out of more than 1,600 sworn personnel adjust her full-time, eight-hour shift, one to two hours later in the day. If that is indeed an "undue hardship" for the Austin Police Department, Daylight Savings Time must really throw them for a loop.