Nicole R. McCrea, Petitioner,
District of Columbia Police and Firefighters' Retirement and Relief Board, Respondent.
Submitted September 28, 2017
Petition for Review of an Order of the District of Columbia
Police and Firefighters' Retirement and Relief Board
R. McCrea, pro se.
A. Racine, Attorney General for the District of Columbia,
Todd S. Kim, Solicitor General at the time the brief was
filed, Loren L. AliKhan, Deputy Solicitor General at the time
the brief was filed, and James C. McKay, Jr., Senior
Assistant Attorney General, were on the brief, for
Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and
Nebeker, Senior Judge.
Blackburne-Rigsby, Chief Judge:
se petitioner Nicole R. McCrea, a fifteen-year veteran
of the District of Columbia Fire and Emergency Medical
Services Department ("Department"), was
involuntarily retired on April 30, 2015, by respondent
District of Columbia Police and Firefighters' Retirement
and Relief Board ("Board") upon its determination
that she was mentally disabled and incapacitated due to a
diagnosis of Adjustment Disorder with Anxiety and Depression
("ADAD"). The Board concluded that her disability
was not incurred in the "performance of duty"
("POD") and was therefore compensable under the
provision of the statute governing retirement disability for
injuries not incurred in the POD, instead of the provision
for disabilities incurred during the POD, which provides
benefits at a higher annuity rate.
McCrea challenges her involuntary retirement on the grounds
that the Board's conclusion "lacks competent,
objective, probative and reliable evidence." In the
alternative, she seeks a reversal of the Board's
determination that her disability was not incurred in the
POD, claiming that she is entitled to receive retirement
benefits at the POD annuity rate. Ms. McCrea claims that her
ADAD condition stems from a sexual assault by her co-workers
while she was on duty, which she contends constitutes a
disability incurred in the POD.
affirm and conclude that substantial evidence in the record
supports the Board's decision to involuntarily retire Ms.
McCrea for a disability not incurred in the POD. The alleged
incident of sexual assault on Ms. McCrea cannot form the
basis of relief pursuant to D.C. Code § 5-710 (a) (2012
Repl.), which dictates relief for a disability incurred in
the POD. Our conclusion is controlled by our decisions in
In re Underwood v. National Credit Union
Administration, 665 A.2d 621 (D.C. 1995), and
Nunnally v. District of Columbia Police &
Firefighters' Retirement & Relief Board, 184
A.3d 855 (D.C. 2018), wherein we held that mental and
emotional injuries resulting from sexual harassment in the
workplace could not be classified as "injuries"
arising out of employment, since sexual harassment does not
concern any task the employee was called upon to perform.
Underwood, supra, 665 A.2d at 632-33. We hold that,
likewise, mental and emotional injuries resulting from sexual
assault in the workplace are not compensable as injuries
incurred in the POD.
Factual and Procedural Background
McCrea began working as a firefighter with the Department on
January 3, 2000. Her claim arose from an incident that she
contends occurred at around midnight on the evening of May
30, 2013. She asserts that she was sleeping on her stomach at
the firehouse, when three male co-workers "fondl[ed]
[her] between [her] legs." Following the May 30th
incident, Ms. McCrea contends that she experienced
"difficulty concentrating, difficulty falling asleep
and/or staying asleep, headaches, loss of appetite, nausea,
upset stomach and diarrhea." On June 25, 2013, Ms.
McCrea reported the incident to the District of Columbia
Police and Fire Clinic ("Clinic") and requested
that her ensuing mental health injury be classified as a POD
injury. After filling out the Clinic's incident report,
Ms. McCrea was referred to the Clinic's Behavioral Health
Services section where she was interviewed by a psychologist,
Mary Kenel, Ph.D., who evaluated her and placed her on sick
leave on June 25, 2013. Ms. McCrea remained on sick leave
until the Board made its decision to retire her on April 30,
2015, which became effective on May 15, 2015.
March 2014, the Clinic referred Ms. McCrea to clinical
psychologist and neuropsychologist, Dr. Gloria Morote, who
specializes in psychological evaluations. Dr. Morote
recommended Ms. McCrea for disability retirement. D.C. Code
§ 5-633 (2012 Repl.) mandates that uniformed employees
who have been on leave for a significant period of time due
to injury or illness be recommended for disability
retirement. Dr. Morote based her recommendation on the fact
that Ms. McCrea had been on sick leave for an extended period
of time and her diagnosis of an anxiety disorder, which
affected her "ability to . . . express her feelings,
work under stress, make judgments, and deal with people in
general," and prevented her from performing her duties
as a firefighter. The Board subsequently held a three-day
retirement hearing on November 6, 2014, and January 22 and
February 12, 2015.
hearing, Ms. McCrea appeared pro se and testified
that she did not wish to be retired. She urged the Board to
adopt the conclusions of her treating psychologist, Dr.
Beverli Mormile, that Ms. McCrea suffered from Post-Traumatic
Stress Disorder ("PTSD"), was fit to return to work
on a limited-duty status, and should be reinstated. The Board
determined that Ms. McCrea suffered from an ADAD, "which
prevents her from performing useful and efficient service
with her Department," and did not find the record
evidence sufficient to support the finding that she suffered
from PTSD. The Board subsequently retired Ms. McCrea "by
reason of a disability not incurred in the performance of
duty." The Board based its decision on Ms. McCrea's
demeanor during the three days of hearings, where she was
"visibly and extremely mistrustful and paranoid;"
her refusal to comply with the Clinic's requests for
treatment information from her treating psychologist; her
failure to submit any documentation, including diagnostic
test results or clinical notes that would support Dr.
Mormile's diagnosis and treatment recommendations; and
the record evidence as a whole. The Board weighed this
evidence against the Department's evidence, which
included testimony, reports, standardized tests, and the
diagnosis of the Clinic's psychologist, Dr. Morote, and
found that the Board's interaction with Ms. McCrea
"strongly supports Dr. Morote's opinion that [Ms.
McCrea]'s paranoia and distrust is so pervasive that it
would prevent [her] from performing the full duties of a
firefighter because she could no longer work effectively with
a team." Further, the Board concluded, Ms. McCrea's
inability to work as a team, which is central to the
functions of a firefighter, is evidence that she is unable to
perform the functions of a firefighter safely in
life-or-death situations and she poses a risk to herself and
to the public.
Board was unable to assign Dr. Mormile's conclusion and
recommendation much weight because Dr. Mormile did not submit
any corroborative evidence like testing reports or clinical
notes. Further, Dr. Mormile's recommendation was
contradictory as she stated that Ms. McCrea could return to
full duty and then listed "a number of limitations which
prevented less-than-full duty status."
considered a member of the Department performing the
member's "full range of duties," the member
must have the "ability" "to perform all of
theessential functions of police work or
fire suppression as determined by theestablished policies and procedures of the
Metropolitan Police Department or the Fire and Emergency
Medical Services Department." D.C. Code § 5-701
(19) (2012 Repl.) (emphasis added). According to the District
of Columbia Fire and Emergency Medical Service Useful and
Efficient Service Statement, to be considered a full duty
uniformed member, a firefighter must be ...