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Nunnally v. District of Columbia Police & Firefighters' Retirement & Relief Board

Court of Appeals of The District of Columbia

May 17, 2018

Ronda L. Nunnally, Petitioner,
v.
District of Columbia Police & Firefighters' Retirement & Relief Board, Respondent.

          Argued January 12, 2017

          On Petition for Review of an Order of the District of Columbia Police and Firefighters' Retirement and Relief Board (PD-1297-07)

          Frederic W. Schwartz, Jr., for petitioner.

          James 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.

          Before Fisher and Beckwith, Associate Judges, and Pryor, Senior Judge.

          BECKWITH, ASSOCIATE JUDGE.

         Ronda Nunnally, [1] 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 1010-13.

         We 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.

         I.

         In 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.[2] 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)[3]- 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).[4]

         Lt. 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.

         II.

         The 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.[5] 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).

         Both of 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 ...


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