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                DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 15-AA-254

                        RONDA L. NUNNALLY, PETITIONER,

                                         V.


                  DISTRICT OF COLUMBIA POLICE & FIREFIGHTERS‘
                   RETIREMENT & RELIEF BOARD, RESPONDENT.

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

(Argued January 12, 2017                                 Decided May 17, 2018)

      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


      1
        Although Lt. Nunnally's first name appears as ―Rhonda‖ in the pleadings
and Superior Court decision in this case, our review of the record shows that Lt.
Nunnally spells her name ―Ronda.‖
                                           2

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
                                         3

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


      2
         Lt. Nunnally also filed a civil complaint in Superior Court based on the
same allegations against her supervisor and the District of Columbia. See Nunnally
v. Graham, 56 A.3d 130 (D.C. 2012).
                                          4

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

      3
         All D.C. Code citations are to the 2012 replacement volume unless
otherwise indicated.
      4
         Specifically, annuities for non-POD injuries under § 5-709 (b) must be at
least 30% of the officer‘s salary at the time of retirement, while the minimum
annuity for POD injuries under § 5-710 (e) is 40% of that salary. The Board
awarded Lt. Nunnally an annuity equal to approximately 35% of her salary at the
time of her retirement.
                                         5

§ 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 &


      5
         To the extent our analysis entails a more straightforward interpretation of
the phrase ―in the performance of duty‖ under D.C. Code §§ 5-709 (b) and -710
(e), our review is also de novo, as ―we are presumed to have the greater expertise
when the agency's decision rests on a question of law, and we therefore remain ‗the
final authority on issues of statutory construction.‘‖ Nunnally, 80 A.3d at 1010.
―Where we determine that a statutory term is ambiguous, however, we must defer
to an agency's interpretation of that ambiguity that is reasonable and not plainly
wrong or inconsistent with the legislature's intent.‖ Id.; see also MorphoTrust
                                                                      (continued…)
                                          6

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 workers‘ compensation statutes—substituting

limited liability without fault for the right to sue in court.‖ Vargo, 667 A.2d at

101.


       Lt. Nunnally primarily argues that our decision in Nunnally, which examines

the same language in a different context, controls this case. In her view, the phrase

―performance of duty‖ should have the same meaning in the context of retirement

for disability as it does for sick leave benefits. As noted above, we held in


(…continued)
USA, Inc. v. District of Columbia Contract Appeals Bd., 115 A.3d 571, 583 (D.C.
2015) (―In accordance with the Supreme Court's decision in Chevron, . . . before
we afford some deference to an agency's interpretation of the statute that it
administers at least two conditions must be met: (1) the statutory language in
question must be ambiguous, and (2) the agency's interpretation must be
reasonable.‖).
                                         7

Nunnally that Lt. Nunnally‘s psychological injury was incurred in the

―performance of duty‖ under the statute governing public employees‘ sick leave.

80 A.3d at 1013. Although only that statute, D.C. Code § 1-612.03 (j)—a part of

the Comprehensive Merit Personnel Act of 1978 (CMPA)6—was at issue in

Nunnally, we drew parallels to the PFRDA, stating that ―[o]ur understanding of

‗performance of duty‘ under D.C. Code § 1–612.03 (j)‖ was ―in line with this

court‘s broad interpretation of the same phrase when used in the related context‖ of

the PFRDA.7 Id. at 1011.


      Nothwithstanding the analogy this court drew between the PFRDA and the

sick leave statute in Nunnally, the Board deemed this case to be controlled by

Underwood.     In Underwood, this court acknowledged precedents holding that

emotional distress claims not based on sexual harassment might be compensable

under the Workers‘ Compensation Act (WCA), which defines a compensable

injury as an ―accidental injury or death arising out of and in the course of

employment, . . . includ[ing] an injury caused by the willful act of third persons

      6
          D.C. Code §§ 1–601.01 to –636.03.
      7
         In Nunnally we noted a further ―linkage‖ between the sick leave statute
and the PFRDA: D.C. Code § 5-708.01, a provision the D.C. Council added to the
PFRDA in 2004 that governs claims processing for alleged POD injuries under
§ 1–612.03 (j). 80 A.3d at 1011 n.14.
                                         8

directed against an employee because of his [or her] employment.‖ 665 A.2d at

631–32 & 633 (quoting D.C. Code § 32-1501 (12)). Special considerations led the

court to reach a different result, however, ―when emotional distress allegedly

attributable to sexual harassment (in contrast with some other cause) results in

disabling injuries[.]‖ Id. at 632–33. Based on what it called a ―significant policy

consideration,‖ id. at 637, the court in Underwood concluded that workplace

sexual harassment was ―unrelated to any work task‖ and could not be an injury

―arising out of . . . employment.‖8 Id. at 634, 637. That policy consideration was

the likelihood that declaring injuries from workplace sexual harassment to be

compensable in workers‘ compensation ―would frustrate implementation of the

Human Rights Act,‖ id. at 637, the local human rights law that prohibits sex

discrimination, including sexual harassment, and provides both a private cause of
      8
          Indeed, the court noted, sexual harassment was forbidden by the District of
Columbia Human Rights Act, D.C. Code §§ 2-1401 to -1403. And while
compensable injuries to police officers may often arise out of activity prohibited by
a statute, see, e.g., O’Rourke, 46 A.3d at 381 (officer injured while chasing
suspected carjacker), such injuries are contemplated by law as potential hazards of
employment as a police officer. By contrast, the Human Rights Act does not treat
sex discrimination—including sexual harassment—as an odds-on occurrence that
is incidental to employment. Cf. Bennett v. Furr’s Cafeterias, Inc., 549 F. Supp.
887, 890 (D. Colo. 1982) (denying defendant‘s request for summary judgment on
plaintiff‘s sexual-harassment-related claims for assault and battery and outrageous
conduct, stating that ―[i]ndeed, it would appear to lie outside the bounds of reason
to propose that the sort of sexual assault and harassment heretofore described and
the emotional trauma alleged to have been caused thereby result from risks
inherent to the position of a ‗management trainee.‘‖).
                                        9

action and an administrative remedy through the Office of Human Rights. See

D.C. Code § 2-1403.16 (private cause of action) and § 2-1403.04 (administrative

remedy).


      As a workers‘ compensation scheme, the WCA provides an exclusive

remedy against the employer for injuries within its scope, preempting causes of

action based on the same alleged injuries. D.C. Code § 32-1504. The difficulty in

deeming sexual harassment claims to be covered under the WCA was not,

however, that the workers‘ compensation statute would preempt the Human Rights

Act‘s remedies, and no one in Underwood argued that.9 665 A.2d at 631. Instead,

the concern of this court at the time, and of many courts considering appeals from

the dismissal of sexual harassment suits, was the ability of sexual harassment


      9
          The Board in its decision misunderstood Underwood to have expressed
concern that a WCA remedy would preempt Human Rights Act remedies, and the
parties in their briefs have either shared that misunderstanding or failed to
challenge it. In fact, Underwood emphasized as ―important background‖ its
understanding—shared by the parties in that case—that the question of WCA
preemption would not have arisen had the case contained a Human Rights Act
claim. 665 A.2d at 631. It was because the ―case no longer contain[ed] a statutory
sexual harassment claim‖ after the jury rejected that claim that the employer
contended that ―the WCA—the only statute now in the picture—preempted a
lawsuit for a common law tort,‖ which was the sole claim remaining in the
plaintiff‘s case. Id.; cf. Johnson v. District of Columbia, 528 F.3d 969, 978 (D.C.
Cir. 2008) (affirming dismissal of common law claims on ground that PFRDA was
officer‘s exclusive remedy against the District but remanding to allow statutory
claim to go to trial).
                                         10

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

statutory sexual harassment claims.10


      Such tort claims, ―when premised on alleged disability from sexual

harassment,‖ would be preempted if a WCA remedy were available, which would
      10
           See, e.g., Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277, 290 (Tenn.
1999) (noting that a ruling that employee plaintiffs can recover worker‘s
compensation for injuries stemming from sexual harassment could ―thwart the
intent of the framers of the [Tennessee Human Rights Act] to provide sexual
harassment victims with a full recovery‖). The Tennessee Supreme Court, which
was considering an employee‘s appeal from the denial of workers‘ compensation
for emotional injuries caused by sexual harassment by a manager, acknowledged
that most of the published decisions on this subject involve circumstances in which
―the employee plaintiffs were seeking to recover under tort theories or pursuant to
civil rights legislation.‖ Id. at 282. The court in Anderson, in a decision expressly
intended to protect sexual harassment victims‘ ability to recover for their injuries,
ruled against the plaintiff, who was seeking worker‘s compensation, not the right
to sue for sexual harassment. The court even ended its opinion with a quotation
denigrating the value of the relief the employee was seeking: ―Except for the
convenience of employers and the flimsy benefit the victims of sexual harassment
might achieve by quicker, but much smaller awards, it is difficult to conjure a
reason for workers‘ compensation courts handling sexual-harassment cases.‖
Anderson, 989 S.W.2d at 290 (quoting Darryll M. Halcomb Lewis, Sexual
Harassment Under Workers’ Compensation Law, 44 Labor L.J. 297, 306 (1993)).
Both Anderson and Ms. Nunnally‘s present appeal serve as a reminder that
employees seeking remedies for workplace sexual harassment are not a
homogeneous group, that their claims arise in countless ways, and that
Underwood‘s holding that injuries caused by workplace sexual harassment do not
arise out of employment will effectively prevent recovery for some victims whose
claims or circumstances may not be conducive to a lawsuit.
                                        11

―frustrate Human Rights Act policy‖ in several ways.11 Id. at 637. Plaintiffs

would be forced to split their claims between two forums, rather than attaching

their tort claims to their Human Rights Act claims in court; to ―settle for a remedy

out of keeping with the kind of injury involved,‖ given the ―severe cap on

allowable recovery‖ in workers‘ compensation; and to face the specter of issue

preclusion, which could doom a civil claim based on earlier findings by a workers‘

compensation tribunal. Id. at 637–38. We also noted that judicial economy would

be disserved by encouraging claim-splitting and that a workers‘ compensation

agency lacks expertise in adjudicating claims of emotional distress based on sexual

harassment. Id. at 637. These considerations contributed to Underwood‘s holding

that ―disabling injuries from emotional distress caused by sexual harassment . . .

‗clearly are not compensable under the [WCA].‘‖ Id. at 633 (quoting Harrington

v. Moss, 407 A.2d 658, 661 (D.C. 1979)). The Underwood court‘s rationale

echoes that which many courts in other jurisdictions have relied upon in likewise

holding that those states‘ workers‘ compensation laws do not bar tort suits related
      11
           Underwood urged caution regarding the scope of sexual harassment
claims excluded from workers‘ compensation. Id. at 633 n.18. Here, we are not
confronted with a case in which sexual harassment and related retaliation account
for only one portion of an injury due to emotional distress; ―for example, a pattern
of actionable emotional abuse by a supervisor over a period of months or years
with no perceptible sexual content, followed by the supervisor‘s effort over
succeeding months to reorient the relationship through sexual overtures and
threats.‖ Id.
                                          12

to sexual harassment. See, e.g., Hart v. National Mortg. & Land Co., 235 Cal.

Rptr. 68, 75 (Cal. Ct. App. 1987) (stating that ―when employers step out of their

roles as such and commit acts which do not fall within the reasonably anticipated

conditions of work, they may not then hide behind the shield of workers‘

compensation‖); Dunn v Warhol, 778 F. Supp. 242, 244 (E.D. Pa. 1991) (rejecting

employer‘s argument that Pennsylvania‘s workers‘ compensation act provided

exclusive remedy for sexual harassment claim, stating that ―it does not follow‖ that

―sexual harassment by a supervisor who also happens to be the victim‘s employer

is related to the scope of her employment‖); Harrison v. Edison Bros. Apparel

Stores, Inc., 724 F. Supp 1185, 1191 (M.D.N.C. 1989) (rejecting employer‘s

argument that the injuries resulting from sexual harassment ―are a natural risk of

employment‖ and that North Carolina‘s workers‘ compensation act therefore

provided exclusive remedy for plaintiff‘s negligent-retention claim), remanded on

other grounds, 924 F.2d 530 (4th Cir. 1991); cf. Lucero-Nelson v. Washington

Metropolitan Area Transit Authority, 1 F. Supp. 2d 1, 8–10 (D.D.C. 1998)

(applying Underwood to deny employer‘s request for summary judgment on the

emotional distress claims that accompanied the employee‘s Title VII and Human

Rights Act sexual harassment claims).12



      12
           A deep split has emerged in state courts—and in federal courts applying
                                                                    (continued…)
                                         13




      Like the WCA, the PFRDA provides a comprehensive and therefore

exclusive compensation scheme. See Lewis v. District of Columbia, 499 A.2d 911,

913 (D.C. 1985); Johnson v. District of Columbia, 528 F.3d 969, 978 (D.C. Cir.

2008).13   And while the WCA‘s language regarding its coverage of injuries


(…continued)
state law—regarding the extent to which the exclusivity provisions of worker‘s
compensation laws preclude plaintiffs‘ lawsuits for sexual harassment and related
common law torts. Many courts have concluded that such claims do arise out of
employment and that their workers‘ compensation scheme is the exclusive remedy.
See, e.g., Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465–66 (7th Cir. 1990)
(affirming dismissal of plaintiff‘s sexual-harassment-related tort claims based on
Indiana precedent establishing that such claims are ―within the exclusive
jurisdiction of the workmen‘s compensation law‖); Doe v. Purity Supreme, Inc.,
664 N.E.2d 815, 819 (Mass. 1996) (holding that the state‘s workers‘ compensation
act barred the plaintiff‘s common law claims because ―the assistant store manager
is alleged to have raped an employee during work hours on the employer‘s
premises‖ and noting that ―the Legislature has provided employees with a separate
remedy for sexual harassment‖); Campbell v. Jackson Bus. Forms Co., 841 F.
Supp. 772, 774 (S.D. Miss. 1994) (ruling that the Mississippi workers‘
compensation law barred the plaintiff‘s common law negligent-supervision-of-
employees claim ―[b]ecause Campbell alleges that her claim arose out of the
employer-employee relationship‖ between her and the employer ―and because the
tort claim is clearly grounded in negligence‖).
      13
          Unlike the WCA and the CMPA, see D.C. Code § 32-1504 (b), § 1-623.16
(c), the PFRDA contains no exclusivity provision stating that it is an officer‘s sole
remedy for injuries that fall within the Act‘s parameters. In Lewis, we nevertheless
adopted the ―principle . . . of long-standing application‖ that a comprehensive
system of compensation set up to provide a remedy for employment-related
injuries ―is presumed to be the exclusive means of redress against the government
for all persons eligible for the system‘s benefits‖ even in the absence of statutory
                                                                      (continued…)
                                        14

―arising out of and in the course of employment‖ differs from the PFRDA‘s

coverage of injuries incurred ―in the performance of duty,‖ the CMPA‘s

performance-of-duty language is ―conceptually close‖ to the WCA standard and

has been construed in some agency decisions as ―requiring that the ‗injury arise out

of and in the course of employment,‘ the same standard used under the WCA.‖

McCamey v. District of Columbia Dep’t of Emp’t Servs., 947 A.2d 1191, 1200

(D.C. 2008) (en banc). See also King v. Kidd, 640 A.2d 656, 664 (D.C. 1993)

(finding ―no basis to conclude that CMPA‘s remedial system preempts Kidd‘s tort

claim of intentional infliction of emotional distress based on acts of sexual

harassment and subsequent retaliation‖); Underwood, 665 A.2d at 636 (―We

perceive no distinction between public and private employment that could warrant

a different result from King under the WCA, unless there are differences between

CMPA and the WCA that would so require[.]‖). Lt. Nunnally‘s claim that she

should receive a higher minimum annuity under the PFRDA (as opposed to a less

generous annuity with the option to file a tort claim) is admittedly contextually

distinct from the typical workers‘ compensation claim seeking payment, for

example, of medical expenses stemming from an on-the-job injury. But we cannot


(…continued)
language confirming the compensation scheme‘s exclusivity. 499 A.2d at 912–913
(quoting Granade v. United States, 356 F.2d 837, 840 (2d Cir. 1966)).
                                         15

fairly characterize this claim as falling outside the rationale of Underwood. See

Lewis, 499 A.2d at 913 (listing the PFRDA‘s provisions for POD retirement

disability and non-POD retirement disability, among other provisions, as grounds

for concluding the PFRDA ―is comprehensive, and thus exclusive‖); Ray v.

District of Columbia, 535 A.2d 868, 870–71 (D.C. 1987) (rejecting a firefighter‘s

contention that a civil action was available for claims arising from injuries that

were not on-the-job injuries but were suffered while he was retired on disability, as

such injuries were ―within [the] range of consequences to which [PRFDA] affords

the exclusive remedy‖).


      Lt. Nunnally‘s Nunnally-based argument is not without force. It is awkward

to classify a single injury as an injury ―resulting from the performance of duty‖

under D.C. Code § 1-612.03 (j) but as an ―injury received . . . other than in the

performance of duty‖ under D.C. Code § 5-709 (b). The natural presumption that

the same term should be interpreted consistently in different statutes, however, is

far from irrebuttable. Even within the same statute a term ―may take on distinct

characters from association with distinct statutory objects calling for different

implementation strategies.‖ Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 573–

74 (2007); see also Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433

(1932). The presumption of identical meaning may be even weaker where, as here,

the two statutes were enacted at different times by different legislatures. The
                                          16

CMPA, including the sick leave statute, was enacted by the District of Columbia

Council in 1979, while the relevant PFRDA provisions were enacted by Congress

in 1916 and amended by Congress in 1957 and 1979.14


      In the end, interpreting ―performance of duty‖ in the PFRDA in line with

what we have determined that phrase means in the sick leave statute would bring

about a more significant peculiarity:      workplace sexual harassment would be

treated differently for police and firefighters than for everyone else in the District.

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




      14
          As originally enacted, the PFRDA spoke of injuries incurred ―in the line
of duty.‖ Act of Sept. 1, 1916, ch. 433, § 12, 39 Stat. 678, 718; see also Dougherty
v. United States ex rel. Roberts, 30 F.2d 471, 471–72 (D.C. Cir. 1929). The 1957
amendments introduced the ―performance of duty‖ language to this section. Police
and Firemen‘s Retirement and Disability Act Amendments of 1957, Pub. L. No.
85-157, § 3, 71 Stat. 391, 394–95 (1957).
                                         17

causing this arbitrary and anomalous result.15 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).


                                        III.


      For the reasons in this opinion, we affirm the Board‘s conclusion that Lt.

Nunnally‘s injury was ―received . . . other than in the performance of duty.‖ D.C.

Code § 5-709 (b).


                                                          So ordered.



      15
           Lt. Nunnally also relies on Pierce v. District of Columbia Police and
Firefighters’ Retirement & Relief Board, 882 A.2d 199 (D.C. 2005). The claimant
in Pierce argued that the disabling mental illness for which she was retired from
the MPD was due to a POD injury—namely workplace harassment and
discrimination. Id. at 203–04. Most of the harassment she alleged was nonsexual,
but she did assert that ―she was inappropriately touched by a male supervisor,
while another male supervisor would ask her to kiss him.‖ Id. at 209. We noted
that if true this allegation could be ―a basis for recovery,‖ but concluded that the
Board had a reasoned basis for believing these acts had never occurred. Id. We do
not read this single sentence in Pierce—which was unnecessary to the result, did
not specify the means of whatever recovery it contemplated, and did not cite the
contrary precedent of Underwood or attempt to reconcile its conclusion—as having
settled the question whether sexual harassment was compensable in workers‘
compensation. See Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994) (―The
rule of stare decisis is never properly invoked unless in the decision put forward as
precedent the judicial mind has been applied to and passed upon the precise
question.‖ (quoting Fletcher v. Scott, 277 N.W. 270, 272 (Minn. 1938))).
