APD's Sleep Disorder

During her first 10 years as an officer, Amy Lynch's star was rising within the Austin Police Department. After graduating from the academy in 1998, Lynch spent nine years patrolling near Rundberg Lane and in the Dove Springs neighborhood of Southeast Austin. Her supervisors extolled her virtues in annual performance evaluations – she was praised as a team player and lauded for her dogged efforts to arrest wanted criminals. In 2006, she and two colleagues were awarded the Meritorious Service Medal for their handling of the arrest of Michael Duncan on suspicion of making a terroristic threat. Duncan attacked Lynch while she was trying to handcuff him, pushing her over the hood of her patrol car and choking her; though deadly force could have been used – as Lynch's supervisor, Sgt. Scott Cary, recounted in a performance evaluation – the officers responded with cool heads, "and worked as a team to stop the suspect's deadly conduct."

During another altercation a year later, Lynch tore an ACL and was transferred to the nuisance abatement unit. What was supposed to be a temporary light-duty assignment became a passion, and Lynch helped to achieve a string of high-profile successes – including shuttering a notorious Mon­topolis drug house on Short Kemp Street and compiling evidence for a lawsuit against the owner of a Rundberg Lane flophouse that ultimately forced the owner to clean up his operation. "That was a huge victory and set a precedent" for dealing with other nuisance properties in the city, says Lynch. "There were so many good things accomplished. ... It is a valuable unit."

Lynch began studying in earnest for promotion to detective and was ranked No. 21 of 115 applicants. In June 2009, she was officially promoted and initially reassigned to property crimes, then was recruited for an investigative post with the newly created human trafficking/vice squad – a coveted spot within the APD's prestigious Organ­ized Crime Division.

Despite that steady rise, Lynch's future with the department is now uncertain. Her upward trajectory was cut short after she informed a supervisor in OCD that she had been diagnosed with narcolepsy. The department, responding to a complaint Lynch eventually filed with the Equal Employment Opportunity Commission, insists instead that Lynch's performance was simply deficient. Despite her previously glowing record, according to her final performance evaluation – written in April 2011 by then-Sgt. Pat Connor – she was unable to do even basic detective work.

According to Connor, Lynch was unable to manage her cases, write effective reports, or properly handle evidence. "Her performance while assigned to me was unsatisfactory as reflected in my notes and her annual evaluation," Connor said in an affidavit filed with the city's response to her EEOC complaint.

Lynch disputes the city's claims about her work ability and product, and in March filed suit against the APD, claiming that she endured retaliation for seeking a reasonable accommodation to her work schedule – based on her narcolepsy diagnosis, covered under the Americans with Disabil­i­ties Act. Lynch contends that after disclosing her medical condition, she was ridiculed, her every move was scrutinized, and she was set up for failure by colleagues who clearly misunderstood her neurological condition.

After APD obtained two separate and lengthy fit-for-duty evaluations from two different sleep/neurology specialists, the department determined that it would be too onerous to accept her back into the fold – especially with the accommodation she was seeking: a one-hour-later morning start time that would require her to arrive at work by 10am.

Lynch's case raises questions not only about whether the department fairly and equitably handled her request made under the ADA – but also about the conduct of some employees working within the department's most elite units.

A Highly Effective Officer

As far back as she can remember – at least since she was 6 years old – Lynch wanted to be a police officer. Two of her uncles were homicide detectives with the Ver­mont State Police, and a third was a supervisor over major crimes; her aunt worked as a dispatcher – though, because she looked so young, she also served as an undercover narc in a local high school. "I always wanted to be a police officer," says the 38-year-old Lynch. "It really was probably the only thing I was positive about in life – I never had any doubt." After she graduated from East Carolina University with a criminal justice degree, she and her boyfriend hit the road for a cross-country tour. Arriving in Austin, they wrecked the car on South Congress, and Lynch decided she might as well stay put. She's never looked back. As it turned out, her timing was perfect; in 1997, the year Lynch got to town, the APD was in the midst of a big hiring campaign, and Lynch jumped at the chance, signing on as one of the 50-member 91st cadet class.

After graduation, like all newbies, she went straight to patrol – and stayed there for nearly a decade, working mostly nights. "I absolutely loved it. Those were some of the best years of my life," she recalls. "The shifts were great; [I had] fantastic supervisors." Judging by some of Lynch's early performance evaluations, it seems the feeling was mutual. "Officer Lynch is a team player who shares information and includes everyone in her daily work," Cary wrote in 2006. "She is very intelligent and makes very sound decisions. I can count on her to work without supervision and always do the right things." The positive reviews continued when she left patrol for nuisance abatement after her knee injury. "I have supervised Ofc. Lynch for approximately 11 months," then-Sgt. Jessica Robledo wrote in a 2008 review, rating Lynch overall as a "highly effective" officer. "During this time I have witnessed an incredible work ethic, commitment to her community, and an overall professional individual. ... She has a genuine care and concern for the people she represents in the community and this is refreshing."

Lynch's 2009 evaluation was even stronger; her new supervisor in nuisance abatement rated her "excellent," and noted that although she had been promoted to detective, the "accomplishments, planning and coordination she started continue in the unit," then-Sgt. Stephen Fleming wrote. In short, Lynch's investigative work, even before promoting to detective, had impressed a string of supervisors.

That changed, however, once she moved into the human trafficking/vice squad, after being encouraged to apply for the position by the unit's former supervisor. Lynch wasn't in the new spot long before her troubles – caused by an unfortunate confluence of circumstances – began. First, it had become increasingly difficult for her to sleep through the night, making it almost impossible at times for her to awake in the morning, no matter how many alarms she set. She'd long suffered with sleep irregularities, but she had not yet been diagnosed with narcolepsy – a neurological disorder that effects roughly one in 2,000 people.

Secondly, the environment in the new squad was, as she describes it, fairly toxic. The many units that make up the APD's Organized Crime Division – including the narcotics teams and human trafficking/vice squads – remain a bastion of white male investigators, comprising 66% of all OCD officers, according to department records provided in 2011 – including some who have spent years in the same assignments. While the institutional knowledge that longevity offers can be of tremendous benefit, it can also create an environment hostile toward newcomers, especially women. Just five of the 83 sworn personnel assigned to OCD are female.

Lynch felt hazed by her colleagues, a circumstance she eventually reported to her then-supervisor, Sgt. Ruben Fuentes, and to his superior, Lt. Gerardo Gonzalez. She was also struggling with health issues – sleep disturbances exacerbated by work stress. Her health issues, which likely looked to some as if she was lazy or simply unfocused on the job, weren't winning her friends in her new unit. "I was oversleeping really badly so that [someone at work] would have to call and say, 'Where are you?'" she recalls.

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The Diagnosis

Finally, in late 2009, Lynch was diagnosed with narcolepsy – a chronic condition marked by excessive daytime sleepiness, irregular nighttime sleep, and some degree of cataplexy – a sudden loss of muscle power, often "in response to emotion, usually humor," says Mali Einen, the clinical research coordinator at the Stanford School of Medicine's Center for Narcolepsy. Stan­ford researchers have demonstrated that narcolepsy is actually an autoimmune disorder, akin to juvenile diabetes, in which the body has erroneously destroyed a specific group of cells; in the case of narcolepsy, those cells produce the hormone hypocretin, which promotes wakefulness. There is no cure, but the disease is manageable with medicine and often with accommodations, such as scheduled naps. Because narcolepsy is generally diagnosed later in life – beginning in late adolescence – sufferers, like Lynch (and Einen herself), have often been branded as lazy or become frustrated with their perceived shortcomings long before they learn of their condition. "I do think it is largely misunderstood," says Einen. "People think, 'Well, I'm sleepy too, I know what narcolepsy is,'" but "falling asleep during a meeting or while watching TV" is not narcolepsy, she says.

When Lynch was diagnosed, she was surprised and relieved; it seemed to explain all her symptoms. (Lynch does not suffer from full-body cataplexy – wherein sufferers are momentarily paralyzed but fully aware of what's going on around them – but she does exhibit milder symptoms, including a drooping left eyelid.)

She immediately told her colleagues – "I was stunned [at] the diagnosis and ... didn't know anything about narcolepsy," she wrote in a recent email. "I definitely wasn't ashamed of it though; I was so relieved to put a name to what had been going on [with] me." And, she says, at the time she felt OK about sharing the diagnosis with her colleagues. Indeed, Lynch believes she is not the only member of APD who suffers from a sleep disorder. In a study reported in the December 2011 issue of the Journal of the American Medical Association, researchers found that 40% of nearly 5,000 cops studied suffer from at least one sleep disorder. Roughly a third suffer with sleep apnea; 7% suffer from severe insomnia. Nearly 30% reported "excessive sleepiness," and nearly half reported having fallen asleep while driving.

In retrospect, Lynch believes her disclosure might've been a mistake. After emailing a colleague late one night that she would be late to work because of sleep difficulties, she arrived the next day to find a snarky email in her inbox, addressed to her and three other colleagues. The email, which included the distorted face of a woman – her mouth in a wide closed-lip smile, her eyes bulging out of their sockets – parodied MasterCard's "priceless" ad campaign in several lines of text: "Taking an entire bottle of No-Doze and keeping yourself awake for 24 hours ... $12; Drowning your sorrows in 10 lbs of Macadamia nuts and chocolate chip cookies ... $23; Getting your pooch's toe nails polished to look like skittles ... $35; Emailing your co-workers at 2:24 am and growling like a little Kitty, Grrrr ... Priceless."

The Doctors in OCD

In spring 2010, Lynch was called into a meeting with Fuentes, veteran supervisor Sgt. Jesse Vasquez (now retired, but who then oversaw one of the OCD narcotics squads), and Cmdr. Chris Noble. She was being transferred to Vasquez's narcs team – a move considered "voluntary," she was told, a way for her to get out of the "hostile work environment" that she'd complained about. She agreed to the transfer, though she wasn't exactly thrilled about the idea of being pushed onto another team instead of being selected after applying for the job. And the move did not make things better. For starters, while she was happy to have the narcolepsy diagnosis, getting settled on the proper medication and dosage was difficult, and she endured a string of med changes and complications from side effects, while her symptoms persisted and continued affecting her work.

Among those who seem to have misunderstood her diagnosis was her new supervisor, Vasquez. When Lynch requested several days off to stabilize her medication, instead of sending her to the department's human resources folks to get her signed up for Family and Medical Leave Act benefits (which she and her attorney, Greg Placzek, believe he was required to do), Vasquez instead notified the APD's Risk Manage­ment Division, and attempted his own diagnosis. In June 2010, he wrote to Noble to explain that the supervisors in RMD had requested a memo regarding Lynch, as it would "be important to address the issue of documentation concerning Det. Lynch's state­ments concerning the disease of Narco­lepsy" (emphasis in original). Vasquez went online to "briefly research" the chronic disease, which he defined only as excessive sleepiness. "Amy has been under my supervision only for a few months and in that time period I have not observed Detective Lynch to exhibit any of the signs of Narcolepsy."

Lynch says that Vasquez had her under a microscope throughout 2010. He texted her while she was off work and on vacation out of state; at one point he called her doctor on the doctor's private cell phone number, she says (how he got the number, she does not know), to inquire about Lynch's medical status and narcolepsy diagnosis. When Lynch found out, she was livid and complained about the violation of privacy; you brought it on yourself, she says she was told.

As Lynch recounts it, that was the attitude of everyone in her chain of command as she struggled to get her medical condition under control while attempting to remain focused and determined at work. By the end of 2010, Lynch was facing reassignment within OCD to the Firearms Review Unit, under then-Sgt. Patrick Connor.

Connor initially agreed to allow Lynch to arrive at 10am instead of 9am (a change she explained as a way to avoid commuting traffic), but he soon rescinded approval and eventually told her he would need her to come in at 8am instead – so that he could better monitor her work, he wrote in a series of notes he made about Lynch while she was assigned to his unit.

By mid-March 2011, Lynch was at her wit's end. She had been told repeatedly by her supervisors that her work was inadequate – most directly in an audio-recorded meeting with Connor and the rest of her chain of command, during which she was given a litany of examples of how she'd screwed up investigations and had been generally unreliable. Although the allegations were serious, they were never made the subject of a formal complaint for Inter­nal Affairs; rather, it seems Connor kept notes regarding her shortcomings which were then detailed in the meeting. Lynch says she was blindsided by the weight of the allegations and unprepared to defend herself.

Lynch believed that her issues in OCD, including with Connor, could be explained by her medical issues and the department's misunderstanding of them. At the end of March, Lynch filed for extended leave under the FMLA, and when that ran out, for long-term disability. Both were approved. But when she eventually was ready to return to work – her physical symptoms had been stabilized – she learned that the department was, in essence, done with her.

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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.

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.