Argued Jan. 17, 2013.
Frederic W. Schwartz, Jr., for appellant.
James C. McKay, Jr., Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.
Before BECKWITH and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
EASTERLY, Associate Judge:
Ronda Nunnally, a Lieutenant in the Metropolitan Police Department (MPD), made a request pursuant to D.C.Code § 1-612.03(j) (2012 Repl.) that she not be charged with sick leave for work she missed on account of a psychological injury. D.C.Code § 1-612.03(j) provides that " [s]ick leave may not be charged to the account of a uniformed member of the Metropolitan Police Department ... for an absence due to injury or illness resulting from the performance of duty." Lt. Nunnally alleged that she missed work due to psychological trauma incurred as a result of retaliation by her colleagues after she prevailed in a sexual harassment claim against a supervisor. Lt. Nunnally's request for non-chargeable sick leave was denied by the MPD and that decision was affirmed by the Superior Court because her alleged psychological injuries were not deemed to have been incurred in the " performance of duty" as required by D.C.Code § 1-612.03(j). Examining the statute's plain language, we reach the opposite conclusion. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
In 2004, Lt. Nunnally filed a sexual harassment claim against her supervisor
with the MPD Office of Diversity and EEO Compliance. After an investigation, that office issued a report finding that Lt. Nunnally had been the victim of sexual harassment; MPD subsequently adopted the report and fired her harasser. Lt. Nunnally contends that, over the next three years, her coworkers retaliated against her, causing her psychological trauma.
Lt. Nunnally missed a number of months of work allegedly as a result of this trauma. Asserting that she had been injured in the performance of duty under D.C.Code § 1-612.03(j), she requested that her sick leave account not be charged for these absences. After this request was denied by the Director of MPD's Medical Services Section, Lt. Nunnally sought reconsideration of her claim from the Assistant Chief of Police, Office of Human Services. Acting as the Assistant Chief's designee, a Medical Claims Hearing Officer (MCHO) held an evidentiary hearing at which Lt. Nunnally was represented by counsel. Lt. Nunnally testified at the hearing and presented documentary evidence. The MCHO then issued a report recommending that the MPD deny her claim. The primary rationale for the MCHO's decision was that any psychological injury incurred had not been incurred in the performance of duty as required by statute;  the MCHO also determined that any psychological injury would not qualify as a compensable injury under MPD's stress protocol. In accordance with the MCHO's report, the Assistant Chief denied Lt. Nunnally's request for non-chargeable leave under D.C.Code § 1-612.03(j).
Lt. Nunnally was informed both that she had a right to judicial review of the MPD's denial of her claim, and that, if she wished to exercise that right, she should file a Petition for Review with the District of Columbia Superior Court. Lt. Nunnally sought review in Superior Court, and the Superior Court affirmed the MPD's denial of her non-chargeable sick leave claim. Specifically, it affirmed the agency's determination that injuries stemming from sexual harassment are categorically ineligible for non-chargeable leave as they do not occur in the performance of duty as required by D.C.Code § 1-612.03(j). This appeal followed.
II. Jurisdictional Analysis
We begin by examining our jurisdiction to entertain Lt. Nunnally's appeal from the Superior Court's order upholding the MPD's denial of her claim for non-chargeable leave under D.C.Code § 1-612.03(j). Based on current law, it is not obvious that a challenge to a denial by MPD of non-chargeable leave under D.C.Code § 1-612.03(j) should go first to the Superior Court and, from there, to this court on appeal. For the reasons set forth below, we now hold this is the proper procedure.
In upholding MPD's denial of Lt. Nunnally's claim for ...