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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 15-AA-597

                        NICOLE R. MCCREA, PETITIONER,

                                        v.

                      DISTRICT OF COLUMBIA POLICE AND
          FIREFIGHTERS’ RETIREMENT AND RELIEF BOARD, RESPONDENT.

                      Petition for Review of an Order of the
                         District of Columbia Police and
                    Firefighters’ Retirement and Relief Board
                                   (FD-2038-14)

(Submitted September 28, 2017                           Decided January 3, 2019)

      Nicole R. McCrea, pro se.

       Karl 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 respondent.

     Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and
NEBEKER, Senior Judge.

      Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.

      Dissenting opinion by Senior Judge NEBEKER, at page 18.

      BLACKBURNE-RIGSBY, Chief Judge: Pro se petitioner Nicole R. McCrea, a

fifteen-year veteran of the District of Columbia Fire and Emergency Medical
                                          2

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.



      Ms. 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.



      We 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
                                         3

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.




                       I. Factual and Procedural Background



      Ms. 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
                                         4

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.



      In 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
                                         5

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.



      At the 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,
                                           6

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.



      The 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.”



                                       II. Analysis




      To be considered a member of the Department performing the member’s

“full range of duties,” the member must have the “ability” “to perform all of the
                                        7

essential functions of police work or fire suppression as determined by the

established 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 able to perform an

extensive list of “essential duty functions.”    “While not exclusive,” the list

includes:

            Perform firefighting tasks . . . , rescue operations, and
            other emergency response actions under stressful
            conditions . . . for prolonged time periods . . . .

            Perform in unpredictable emergency requirements for
            prolonged periods . . . .

            Critical, time-sensitive, complex problem solving during
            physical exertion in stressful, hazardous environments
            ....

            Ability to communicate (give and comprehend verbal
            orders) . . . .

            Functioning as an integral component of a team, where
            sudden incapacitation of a member can result in mission
            failure or in risk of injury or death to civilians or other
            team members.


(emphasis added).
                                         8

         A. Substantial evidence supports the Board’s determination that Ms.
            McCrea is disabled from useful and efficient service as a
            firefighter.


      Under the Police and Firefighters’ Retirement and Disability Act

(“PFRDA”), D.C. Code §§ 5-701 to -724 (2017 Supp.), “[t]he terms ‘disabled’ and

‘disability’ mean disabled for useful and efficient service in the grade or class of

position last occupied by the member by reason of disease or injury, not due to . . .

willful misconduct on his part.” § 5-701 (2).



      In its analysis, the Board made the following findings. Dr. Morote opined

that Ms. McCrea suffers from ADAD, which makes her paranoid and mistrustful;

as a result, her symptoms are so pervasive that they would prevent her “from

performing the full duties of a firefighter because she could no longer work

effectively with a team” and “follow orders.” In accepting Dr. Morote’s opinion,

the Board opined that this point is evidenced by Ms. McCrea’s inability to meet the

“essential duty functions” of a firefighter—namely, to “communicate (give and

comprehend verbal orders)” with her co-workers and working “as an integral

component of a team, where sudden incapacitation of a member can result in

mission failure or in risk of injury or death to civilians or other team members.”

The Board credited Dr. Morote’s opinion and concluded that a member who is
                                         9

unable to complete the “essential duty functions” of her job is not a member

performing her “full range of duties” pursuant to the PFRDA, § 5-701 (19), and is

considered “disabled for useful and efficient service” in that member’s capacity.

§ 5-701 (2).



      Dr. Mormile did not testify but the Board relied on three of Dr. Mormile’s

treatment updates.    In August 2014, Dr. Mormile noted that “Ms. McCrea

continues to experience severe psychological symptoms that impede her ability to

complete many of her job duties.” She recommended Ms. McCrea could “return to

work in a restricted capacity” and then “some time” thereafter, “be able to return to

full duty.”    In September 2014, Dr. Mormile noted that Ms. McCrea “still

experiences a significant level of distress” but that nonetheless, Dr. Mormile

“recommended that Ms. McCrea be allowed to return to work” that month, on a

limited duty basis initially, and then within 120 days, be returned to full duty

status. In her third and final treatment update dated January 2015, Dr. Mormile

recommended that Ms. McCrea be returned to full duty status “as soon as

possible,” beginning with a part-time work schedule and “Gradual Exposure

Therapy”—“sleeping in a secured area; limited/gradual exposure to male

co[-]workers in the firehouse where the alleged assault occurred.”
                                       10

      While   the   Board   acknowledged     Dr.   Mormile’s    assessments   and

recommendation, it noted that Dr. Mormile’s assessment that Ms. McCrea could

return to duty, with various limitations including to limit Ms. McCrea’s anxiety,

stress, and interactions with her co-workers, is incompatible with the essential

duties of a firefighter who must work safely and effectively with a team. We

conclude the Board did not err in concluding that the work limitations

recommended by Dr. Mormile contradict her overall recommendation that Ms.

McCrea be returned to full duty status. The Board did not err in crediting Dr.

Morote’s assessment over that of Dr. Mormile.



          B. The Board did not err in classifying Ms. McCrea’s mental illness
             as non-POD.


      The PFRDA, which is recognized as the workers’ compensation plan for

uniformed members of the District, provides compensation for disabling injuries.1

O’Rourke v. District of Columbia Police & Firefighters’ Ret. & Relief Bd., 46 A.3d

378, 389 (D.C. 2012). In doing so, PFRDA precludes other civil remedies that

may otherwise be available, such as remedies resulting from suits for common law

      1
         Although the language regarding coverage of injuries in the PFRDA and
the Workers’ Compensation Act differs, the two are “conceptually close” and have
been construed as the same standard. Nunnally, supra, 184 A.3d at 862 (citation
omitted).
                                         11

torts. Nunnally, supra, 184 A.3d at 859. “This reflects the public policy trade-off

implicit in workers’ compensation statutes”—“swift and certain compensation” for

the loss of one’s “right to sue in court.” Id. (citation and quotation marks omitted).



      The PFRDA defines a compensable injury as a disabling injury incurred “in

the performance of duty.” § 5-710 (a). We have previously held that mental

illness claims that are the result of workplace sexual harassment are “unrelated to

any work task,” and cannot be an injury “arising out of . . . employment” and

therefore are not compensable as injuries incurred in the POD. See Underwood,

supra, 665 A.2d at 634, 637. “[S]exual harassment is not ‘a risk involved in or

incidental to’ employment,” is “altogether unrelated to any work task,” and

therefore cannot statutorily be an injury “arising out of” employment. Id. at 634

(citation omitted).



      In our recent decision Nunnally, we agreed with the Board that Underwood

was controlling in Lt. Nunnally’s case for the same “significant policy

consideration[s]” discussed in Underwood. 2 Nunnally, supra, 184 A.3d at 859


      2
         In Nunnally, Lt. Nunnally of the Metropolitan Police Department filed an
internal complaint against her supervisor for sexual harassment. Nunnally, supra,
184 A.3d at 857. After an investigation, MPD fired the supervisor. Id. Three
years later, Lt. Nunnally reported to the Clinic that she had suffered several years
                                                                     (continued . . .)
                                         12

(quoting Underwood, supra, 665 A.2d at 637). The PFRDA provides an exclusive

remedy for injuries within the employer’s scope, and therefore preempts claims

based on the same alleged injuries. Id. at 861. The concern of this court has been

the ability of sexual harassment “victims to obtain full and appropriate relief,

particularly under tort theories—assault, infliction of emotional distress,

defamation, battery, invasion of privacy, and the tort of ‘outrage’ among others—

that typically accompany a plaintiff’s” sexual assault claim. Id. at 860. We have

explained that if a uniformed member victim of sexual harassment was to be

compensated under § 5-710 for injuries incurred in the POD, then the victim

“would be forced to,” id. at 861 (citing Underwood, supra, 665 A.2d at 637-38),

settle for a wholly administrative remedy for a personal injury, which is not

aligned with “the kind of injury involved,” Underwood, supra, 665 A.2d at 630,

637-38.   In Nunnally, we held that workers’ compensation for injuries from

workplace sexual harassment “would frustrate implementation of the Human

(…continued)
of workplace abuse and stress related to the sexual harassment and to retaliation for
reporting it. Id. The Clinic recommended, and the Board accepted the Clinic’s
recommendation, that Lt. Nunnally be retired as disabled, as Lt. Nunnally was
incapacitated from further duty. Id. The Board reasoned that, even viewing Lt.
Nunnally’s allegations in the light most favorable to her, it was foreclosed by
Underwood, supra, 665 A.2d 621, from classifying Lt. Nunnally’s injuries as
incurred in the POD. Nunnally, supra, 184 A.3d at 858. We ultimately agreed
with the Board that Underwood is controlling in Lt. Nunnally’s case and discussed
the public policy implications behind declining to compensate an emotional or
mental injury as a result of workplace sexual harassment. Id. at 857.
                                         13

Rights Act, the local human rights law,” and would preclude sexual harassment

victims from obtaining full and appropriate relief, particularly under tort theories.

Nunnally, supra, 184 A.3d at 860 (citation and internal quotation marks omitted).

Compensating a uniformed member victim, like Lt. Nunnally, under the PFRDA

would not only frustrate implementation of other forms of relief but would not

allow for just compensation to a victim due to the “severe cap on allowable

recovery” and preclude further recovery, “even for punitive damages.”

Underwood, supra, 665 A.2d at 637-38. For the same reasons, Ms. McCrea’s

injury is not compensable as an injury incurred in the POD.



      Further, the Board possesses expertise on a set of “usual impairments that

lead to” disability retirement that are typically based on physical injuries incurred

in the line of duty. Id. at 637. That is not to say the Board does not also address

claims attributable to mental illness, 3 but claims attributable to mental illness are

not typically based on sexual harassment, but rather, may be based on PTSD or

depression claims following trauma in the line of duty—e.g., the attacks on

September 11, 2001. Regardless, there is no justification for limiting disability


      3
          See e.g., Pierce v. District of Columbia Police & Firefighters’ Ret. &
Relief Bd., 882 A.2d 199, 201-02 (D.C. 2005) (discussing a police officer’s
disability retirement based on a diagnosis of major depressive disorder).
                                         14

claims for sexual harassment to the Board when other like claims “can proceed

directly to court, and when [the Board] cannot offer special expertise making it a

more suitable forum.” Id.



      Sexual assault by a co-worker, like sexual harassment, where it occurs on

the job, has nothing to do with “and cannot be justified by reference to, any task an

employee is called upon to perform, even if the persons involved work together

and have a supervisor-supervisee relationship.” Id. at 634. Mental illness resulting

from an alleged incident of workplace sexual assault by co-workers cannot be

classified as an injury that arose from employment because it is not related to any

foreseeable task that an employee is called up to perform. 4 See id. The concern

that we had in Nunnally regarding a victim’s ability to obtain the appropriate relief

also applies in the context of sexual assault. Therefore, compensating a uniformed

member victim of sexual assault by classifying his or her injury as an injury

incurred in the POD and awarding disability compensation in lieu of typical


      4
          Our analysis is premised on the factual context of workplace sexual
assault, wherein a member is assaulted by a co-worker, a supervisor, or another
individual employed by the Department that may interact with the member on a
professional basis. Our holding does not extend to incidents of sexual assault
perpetrated during the course of employment as a member of the Department by
any individual not employed by the Department, or for example, during the course
of an emergency response mission.
                                        15

remedies obtained following tort claims for the same or similar conduct would be

forcing the member to settle for a remedy that was not intended to compensate the

type of injury incurred. See Nunnally, supra, 184 A.3d at 861 (citing Underwood,

supra, 665 A.2d at 637-38). Although the Board is well-equipped to assess more

common impairments that lead to disability based on injuries in the line of duty, it

does not possess the expertise to address claims of mental illness that result from

an incident outside of the member’s essential duty functions.5 See Underwood,

supra, 665 A.2d at 637.



      We conclude that sexual assault by a co-worker is analogous to sexual

harassment for the reasons set forth in Nunnally. We hold that the rationales set

forth in Nunnally and Underwood extend to claims of workplace sexual assault.6


      5
          See, e.g., Newell-Brinkley v. Walton, 84 A.3d 53, 57-59 (D.C. 2014)
(discussing a police officer’s disability retirement based on high blood pressure
and an on-the-job back injury); Sandula v. District of Columbia Police &
Firefighters’ Ret. & Relief Bd., 979 A.2d 32, 33 (D.C. 2009) (determining a police
officer’s disability retirement based on an asthma diagnosis); Bausch v. District of
Columbia Police & Firefighters’ Ret. & Relief Bd., 926 A.2d 125, 126-27 (D.C.
2007) (deciding a firefighter’s disability retirement for back and knee injuries).
      6
         To the extent our dissenting colleague finds the sexual harassment that
occurred in Nunnally distinguishable from the sexual assault that allegedly
occurred in this case because of the severity and seemingly criminal nature of the
act in this case, we respectfully disagree. Sexual harassment can take various
forms, many of which may be criminally punishable. There are several examples
of behaviors that “could lead to unlawful sexual harassment if found to be
                                                                  (continued . . .)
                                         16

Therefore, mental illness claims that are the result of workplace sexual assault are

not compensable under the PFRDA as injuries incurred in the POD.



                                  III.   Conclusion



      Substantial evidence in the record supports the Board’s conclusion that Ms.

McCrea’s mental illness, which was the result of an alleged sexual assault,

prevents her from performing the essential tasks of a firefighter. Therefore, she is

disabled within the meaning of the statute. The Board did not err in determining

that Ms. McCrea’s injury was not incurred in the POD.



      Contrary to our dissenting colleague’s position, declining to classify Ms.

McCrea’s injury as POD, is not a “punish[ment]” but rather, an opportunity for her


(…continued)
pervasive,” including “[a]sking repeatedly for a date” or “[w]riting unwanted
letters or poems,” which may constitute stalking; “[o]ffering threats if sexual
favors are not provided,” which may constitute threatening; and “[g]rabbing,
kissing, or fondling in a forcible manner; and/or [i]nitiating sexual assault and
rape,” which may constitute sexual assault and/or rape. ROBERT J. NOBILE, GUIDE
TO EMPLOYEE HANDBOOKS § 5:20 (2018). The Equal Employment Opportunity
Commission has also defined harassment as “[o]ffensive conduct” including
“physical assaults” and “[t]he harasser can be the victim’s supervisor, a supervisor
in another area, an agent of the employer, a co-worker, or a non-employee.” U.S.
EQUAL EMP’T OPPORTUNITY COMM’N, HARASSMENT, available at
https://www.eeoc.gov/laws/types/harassment.cfm.
                                       17

to seek a more appropriate remedy for her injuries. Ms. McCrea can bring a suit

for her injuries under common law tort theories or any other remedy that she may

be entitled to. Moreover, the record reflects complaints by Ms. McCrea “that she

had been subject to racial and sexual harassment at the Department in the past.”

Classifying Ms. McCrea’s mental illness as an injury not incurred in the POD will

also allow her to pursue relief for her discrimination and harassment claims with

the appropriate agencies including the D.C. Office of Human Rights and the Equal

Employment Opportunity Commission. See Nunnally, supra, 184 A.3d at 860-61;

Underwood, supra, 665 A.2d at 637.



                                                        Affirmed.
                                         18

      NEBEKER, Senior Judge, dissenting: I am unable to convince my colleagues

that the precedents they rely on should not apply to the facts of this case because

the assault on petitioner, a criminal offence, is vastly different from what is known

as sexual harassment. That difference also lies not only in that, but that she is

punished by a reduction in an annuity for the rest of her life, as distinguished from

workman’s compensation in lieu of a common law remedy.



      “For private sector workers, injuries from sexual harassment are not

compensable in workers’ compensation and the courts remain open to common law

claims, Underwood, 665 A.2d at 638, and a similar rule applies for most public

sector workers, King, 640 A.2d at 664. Only police officers and firefighters

alleging sexual harassment would be relegated to the exclusive and limited

remedies of workers’ compensation. In the absence of any legislative intent or

apparent rationale supporting this distinction, our decision in Underwood precludes

us from causing this arbitrary and anomalous result.        We therefore hold that

injuries from sexual harassment are not injuries incurred ‘in the performance of

duty’ under D.C. Code §§ 5–709 (b) and –710 (e).” Nunnally, 184 A.3d at 863.



      Although the majority has some concerns about police officers and

firefighters being treated differently, we also should recognize that the PFDRA
                                          19

serves as the worker’s compensation plan for the District’s police officers and

firefighters. In light of their differing work environment and experiences, could

we not make the argument that a different scheme would be appropriate? Many

other jobs do not demand the close quarters and long hours where one is expected

to eat and sleep on the job on a regular basis.



      While the majority expresses concern that McCrea would be forced to settle

for compensation that inadequately addresses her injury, why is the court

complacent with McCrea receiving a reduction in an annuity for the remainder of

her life because of its characterization of her injury?



      Additionally, I continue to struggle with the majority’s comparison of sexual

harassment and sexual assault. While both types of behavior cause harm to the

victim, I believe the resulting trauma can be very different. In looking at the D.C.

Human Rights Law, Council’s intent is specified as follows, “It is the intent of the

Council of the District of Columbia, in enacting this chapter, to secure an end in

the District of Columbia to discrimination for any reason other than that of

individual merit, including, but not limited to, discrimination by reason of race,

color, religion, national origin, sex, age, marital status, personal appearance, sexual

orientation, gender identity or expression, familial status, family responsibilities,
                                             20

matriculation, political affiliation, genetic information, disability, source of

income, status as a victim of an intrafamily offense, and place of residence or

business.” (D.C. Code § 2–1401.01). While the Human Rights Law may be

equipped to handle sexual harassment that occurs in the workplace, a sexual assault

committed in the workplace while an employee is in performance of her duties

seems altogether different.



      What if we alter the facts slightly: What if McCrea was stabbed with a knife

instead of being sexually assaulted. This stabbing would constitute assault with the

intent to kill. Where would we require her to seek her relief? I am not saying that

a stabbing is related to any work task, but I question what remedy would be

available to her in light of this holding.
