Ronda L. Nunnally, Petitioner,
District of Columbia Police & Firefighters' Retirement & Relief Board, Respondent.
January 12, 2017
Petition for Review of an Order of the District of Columbia
Police and Firefighters' Retirement and Relief Board
Frederic W. Schwartz, Jr., for petitioner.
C. McKay, Jr., Senior Assistant Attorney General, with whom
Karl A. Racine, Attorney General for the District of
Columbia, Todd S. Kim, Solicitor General at the time the
brief was filed, and Loren L. AliKhan, Deputy Solicitor
General, were on the brief, for respondent.
Fisher and Beckwith, Associate Judges, and Pryor, Senior
BECKWITH, ASSOCIATE JUDGE.
Nunnally,  a former lieutenant in the Metropolitan
Police Department (MPD), was retired on disability by the
District of Columbia Police and Firefighters' Retirement
and Relief Board. She seeks review of the Board's
decision that her injury was not incurred in the performance
of duty and that she is therefore not entitled to more
generous retirement benefits. Lt. Nunnally relies principally
on Nunnally v. District of Columbia Metropolitan Police
Department, 80 A.3d 1004 (D.C. 2013), a prior case of
Lt. Nunnally's in which we concluded that, for purposes
of the statute governing sick leave for public employees,
D.C. Code § 1-612.03 (j), Lt. Nunnally's injury
resulted from the performance of duty. Id. at
conclude that the question here is controlled not by
Nunnally but by our decision in Estate of
Underwood v. National Credit Union Administration, 665
A.2d 621 (D.C. 1995). Underwood held that a
disabling injury caused by workplace sexual harassment could
not be an injury "arising out of . . . employment"
and was thus not compensable under the Workers'
Compensation Act, D.C. Code § 36-301 et seq.
(1993 Repl.), the private sector equivalent of the Police and
Firefighters Retirement and Disability Act-or PFRDA, D.C.
Code §§ 5-701 to -724-which is D.C.'s
workers' compensation plan for firefighters and police
officers like Lt. Nunnally. 665 A.2d at 630. Although Lt.
Nunnally makes a formidable argument that we should interpret
"performance of duty" in the PFRDA as we construed
the same phrase in the sick leave statute at issue in
Nunnally, we ultimately conclude that doing so would
spark a much more substantive inconsistency in our case law
by evading the rationale underlying our decision in
Underwood and creating a legal anomaly in which our
case law treats workplace sexual harassment differently for
police officers and firefighters than for other employees in
the city. For the reasons explained more fully in this
opinion, we affirm the Board's decision in this case.
2004, Ronda Nunnally filed an internal MPD complaint alleging
that she was being sexually harassed by her supervisor. After
an investigation, the MPD terminated the
supervisor. Three years later, Lt. Nunnally reported
to the Police and Fire Clinic that she had undergone several
years of workplace stress and abuse related to the sexual
harassment and to retaliation for reporting it. The clinic
recommended that Lt. Nunnally be retired as disabled, and the
Police and Firefighters' Retirement and Relief Board
accepted this recommendation, finding by a preponderance of
the evidence that Lt. Nunnally was incapacitated for further
duty. The Board further concluded that, even viewing Lt.
Nunnally's allegations of sexual harassment and
retaliation in the light most favorable to her, the Board was
foreclosed by our decision in Underwood from
classifying the injury that gave rise to her disability as an
injury incurred in the performance of her official duties.
Lt. Nunnally was therefore entitled to an annuity under D.C.
Code § 5-709 (b)- which spells out retirement benefits for
those who became disabled due to injury received "other
than in the performance of duty"-rather than the more
generous annuity provided under § 5-710 (e) for police
officers who sustain injuries "in the performance of
duty" (POD injuries).
Nunnally appealed the Board's decision to this court, and
we summarily remanded the case to the Board for further
consideration in light of our holding, in Lt. Nunnally's
separate appeal of the MPD's decision to charge her sick
leave account for a lengthy absence from work, that the
psychological injury she alleged-the same injury giving rise
to her disability in this case-was an "injury . . .
resulting from the performance of duty" under the sick
leave statute, D.C. Code § 1-612.03 (j). See
Nunnally, 80 A.3d at 1010-13. The Board issued a new
final order reaffirming its previous conclusion that Lt.
Nunnally's injury was not incurred in the performance of
duty. While taking notice of our holding in
Nunnally, the Board decided that it was still
precluded by Underwood from finding injuries caused
by sexual harassment to be POD injuries. Lt. Nunnally
appealed again from this order.
question before us on appeal is whether the Board was correct
in determining that Underwood compelled the
conclusion that Lt. Nunnally's injury was not sustained
in the performance of duty under the provisions of PFRDA that
set forth the annuities for those who have been retired on
disability. See D.C. Code §§ 5-709 (b) and
-710 (e). As "[a]n agency's interpretation of our
case law does not trigger any obligation of deference on our
part, " we review that question de novo.
Nunnally, 80 A.3d at 1012; cf. O'Rourke v.
District of Columbia Police & Firefighters'
Ret. & Relief Bd., 46 A.3d 378, 383 (D.C. 2012).
the statutes governing annuity rates for officers retired on
disability are components of the PFRDA, which "serves as
the worker's compensation plan for the District's
police and firefighters." O'Rourke, 46 A.3d
at 389; see also Vargo v. Barry, 667 A.2d 98, 101
n.4 (D.C. 1995). Like other such schemes, the PFRDA provides
swift and certain compensation, but that compensation is
limited and other remedies, such as common law suits, are
precluded. This reflects "the public policy trade-off
implicit in ...