Ronda Nunnally v. District of Columbia Metropolitan Police Department

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 11-CV-609
RONDA NUNNALLY, APPELLANT
v.
DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLEE.
Appeal from the Superior Court of the District of Columbia
(CAP-6295-07)
(Hon. Brook Hedge, Trial Judge)
(Argued January 17, 2013 Decided December 12, 2013)
Frederic W. Schwartz, Jr., for appellant.
James C. McKay, Jr., Senior Assistant Attorney General, with whom Irvin
B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M.
Murasky, Deputy Solicitor General, were on the brief, for appellee.
Before BECKWITH and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
EASTERLY, Associate Judge: Ronda Nunnally,1 a Lieutenant in the
Metropolitan Police Department (MPD), made a request pursuant to D.C. Code
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
§ 1-612.03 (j) (2012 Repl.) that she not be charged with sick leave for work she
missed on account of a psychological injury. D.C. Code § 1-612.03 (j) provides
that “[s]ick leave may not be charged to the account of a uniformed member of the
Metropolitan Police Department . . . for an absence due to injury or illness
resulting from the performance of duty.” Lt. Nunnally alleged that she missed
work due to psychological trauma incurred as a result of retaliation by her
colleagues after she prevailed in a sexual harassment claim against a supervisor.
Lt. Nunnally‟s request for non-chargeable sick leave was denied by the MPD and
that decision was affirmed by the Superior Court because her alleged psychological
injuries were not deemed to have been incurred in the “performance of duty” as
required by D.C. Code § 1-612.03 (j). Examining the statute‟s plain language, we
reach the opposite conclusion. Accordingly, we reverse and remand for further
proceedings consistent with this opinion.
I. Facts and Procedural History
In 2004, Lt. Nunnally filed a sexual harassment claim against her supervisor
with the MPD Office of Diversity and EEO Compliance. After an investigation,
that office issued a report finding that Lt. Nunnally had been the victim of sexual
harassment; MPD subsequently adopted the report and fired her harasser. Lt.
3
Nunnally contends that, over the next three years, her coworkers retaliated against
her, causing her psychological trauma.
Lt. Nunnally missed a number of months of work allegedly as a result of this
trauma.2 Asserting that she had been injured in the performance of duty under
D.C. Code § 1-612.03 (j), she requested that her sick leave account not be charged
for these absences. After this request was denied by the Director of MPD‟s
Medical Services Section, Lt. Nunnally sought reconsideration of her claim from
the Assistant Chief of Police, Office of Human Services. Acting as the Assistant
Chief‟s designee, a Medical Claims Hearing Officer (MCHO) held an evidentiary
hearing at which Lt. Nunnally was represented by counsel. Lt. Nunnally testified
at the hearing and presented documentary evidence. The MCHO then issued a
report recommending that the MPD deny her claim. The primary rationale for the
MCHO‟s decision was that any psychological injury incurred had not been
incurred in the performance of duty as required by statute;3 the MCHO also
determined that any psychological injury would not qualify as a compensable
2
Precisely how many days of work Lt. Nunnally missed is unclear,
although there is evidence in the record that she reported sick on January 19, 2007,
and that she was on leave through November 30, 2007.
3
The MCHO never made any clear factual findings; rather he appeared to
determine that even if Lt. Nunnally‟s factual allegations were true, she had failed
to state a claim for non-chargeable leave.
4
injury under MPD‟s stress protocol. In accordance with the MCHO‟s report, the
Assistant Chief denied Lt. Nunnally‟s request for non-chargeable leave under D.C.
Code § 1-612.03 (j).
Lt. Nunnally was informed both that she had a right to judicial review of the
MPD‟s denial of her claim, and that, if she wished to exercise that right, she should
file a Petition for Review with the District of Columbia Superior Court. Lt.
Nunnally sought review in Superior Court, and the Superior Court affirmed the
MPD‟s denial of her non-chargeable sick leave claim. Specifically, it affirmed the
agency‟s determination that injuries stemming from sexual harassment are
categorically ineligible for non-chargeable leave as they do not occur in the
performance of duty as required by D.C. Code § 1-612.03 (j). This appeal
followed.
II. Jurisdictional Analysis
We begin by examining our jurisdiction to entertain Lt. Nunnally‟s appeal
from the Superior Court‟s order upholding the MPD‟s denial of her claim for non-
chargeable leave under D.C. Code § 1-612.03 (j).4 Based on current law, it is not
4
Although jurisdiction was not raised by either party in their initial briefs to
this court, and although the parties ultimately agree in supplemental briefing on
(continued…)
5
obvious that a challenge to a denial by MPD of non-chargeable leave under D.C.
Code § 1-612.03 (j) should go first to the Superior Court and, from there, to this
court on appeal. For the reasons set forth below, we now hold this is the proper
procedure.
In upholding MPD‟s denial of Lt. Nunnally‟s claim for non-chargeable
leave, the Superior Court stated that it had “jurisdiction to review a final decision
of an agency of the District of Columbia” and cited Super. Ct. Agency Rev. R. 1.
But a court rule cannot confer jurisdiction on its own, and in any event, Rule 1
does not purport to confer on the Superior Court jurisdiction over all agency cases
or any subset thereof. It merely addresses the procedure for review of agency
decisions that arise under the Comprehensive Merit and Personnel Act (CMPA).5
We turn then to the text of the CMPA — the statute under which Lt.
Nunnally made her request for non-chargeable sick leave and the statute to which
(…continued)
this issue that we have jurisdiction, we are obligated to independently consider the
source of our jurisdiction. See Murphy v. McCloud, 650 A.2d 202, 203 n.4 (D.C.
1994).
5
Rule 1 addresses such matters as the time and method of filing a petition
for review, how to obtain a stay, the information that should be included in a
petition for review, and the procedure after an application is filed.
6
Rule 1 alludes6 — to determine if it specifies the jurisdictional path for review of
agency decisions of this sort. See District of Columbia Housing Auth. v. District of
Columbia Office of Human Rights, 881 A.2d 600, 608 (D.C. 2005); see also Super.
Ct. Agency Rev. R. 1 (a). The CMPA routes certain types of agency decisions to
the Superior Court for review, but denials of requests for non-chargeable leave are
not among them. In particular, the category of cases eligible for review first by
either the Office of Employee Appeals (OEA) or the Public Employee Relations
Board (PERB) and then by the Superior Court does not include Lt. Nunnally‟s
claim for non-chargeable leave under D.C. Code § 1-612.03 (j). See D.C. Code
§ 1-606.03 (d) (2012 Repl.) (OEA); D.C. Code § 1-617.13 (c) (2012 Repl.)
(PERB); see also D.C. Code § 1-606.03 (a) (2012 Repl.) (detailing review by the
OEA); D.C. Code § 1-605.02 (2012 Repl.) (detailing review by the PERB).
As a factual matter, Lt. Nunnally‟s non-chargeable leave claim has never
been reviewed by either the OEA or the PERB and, as a legal matter, we see no
reason that it should have been. We held in District of Columbia v. Daniels, 523
6
The full title of the rule is “Superior Court Review of Agency Orders
Pursuant to D.C. Code 1981, Title 1, Chapter 6.” This version of the CMPA was
supplanted when a new Code was published in 2001 and then again when a
replacement edition was published in 2012. Despite a revision to Rule 1 in 2007,
the title retains this anachronism.
7
A.2d 569 (D.C. 1987), that “a decision of the MPD denying non-chargeable sick
leave is a „grievance.‟” Id. at 570 (footnote omitted). We further held that
grievances should be routed to the OEA. Id. But eleven years after Daniels, the
Council for the District of Columbia redefined and limited the OEA‟s jurisdiction
so as to exclude non-chargeable sick leave claims. See Omnibus Personnel Reform
Amendment Act of 1998, D.C. Law 12-124 (Act “limit[s] employee appeals to the
Office of Employee Appeals to disciplinary actions and [reductions in force], or
certain disciplinary actions that result in removals, reductions in grades, and
suspensions of 10 days or more”); see also D.C. Code § 1-616.53 (a) (2012 Repl.).
Thus, none of the CMPA provisions that address administrative appeals are helpful
in determining where Lt. Nunnally should have sought review of MPD‟s denial of
her claim for non-chargeable sick leave.
The same statute that removed grievances from the OEA‟s jurisdiction
delegated to the Mayor the responsibility to promulgate rules and regulations
setting forth the grievance procedure. See D.C. Code § 1-616.53 (a). But an
examination of the regulations that were subsequently promulgated also leads to a
dead end. The regulations provide that grievances should be sent to a grievance
official, 6-B DCMR § 1636.2 (2000), and that “[t]he decision of the grievance
official to deny the grievance, in whole or in part, shall be the final administrative
8
decision, and shall not be subject to further administrative appeal,” id. at § 1636.8
(2000). The regulations do not specify a right to petition for review of that final
administrative decision to the Superior Court (or anywhere else).
This does not end our analysis, however, because the Superior Court is a
court of general jurisdiction, see D.C. Code § 11-921 (a) (2012 Repl.), and there is
a “strong presumption of judicial review of agency action,” District of Columbia v.
Sierra Club, 670 A.2d 354, 358-59 (D.C. 1996) (quoting People’s Counsel v.
Public Serv. Comm'n of the District of Columbia, 474 A.2d 1274, 1278 n.2 (D.C.
1984)) (emphasizing the importance of judicial review as a check on agency
discretion); see also Martin v. District of Columbia Courts, 753 A.2d 987, 991
(D.C. 2000) (the Superior Court‟s general jurisdiction “extends to claims . . . for
equitable relief from allegedly unlawful actions by public officials . . . [including]
challenges by public employees of official decisions affecting their tenure”)
(internal citations omitted)).7
7
The “strong presumption” of Superior Court review of agency action may
be rebutted only by “clear and convincing evidence of a contrary legislative
intent.” District of Columbia Housing Auth., 881 A.2d at 608 (quoting Martin, 753
A.2d 987) (internal quotation marks omitted). We see no indication that the
legislature intended to rebut the presumption of judicial reviewability for claims
like Lt. Nunnally‟s, although we acknowledge that there are circumstances in
which Superior Court review of an agency decision, including a grievance under
(continued…)
9
One significant exception to the Superior Court‟s general jurisdiction is this
court‟s jurisdiction under the District of Columbia Administrative Procedure Act
(DCAPA) over those appeals from administrative proceedings that are deemed
“contested cases.” D.C. Code § 2-510 (a) (2012 Repl.); Capitol Hill Restoration
Soc’y v. Moore, 410 A.2d 184, 187-88 (D.C. 1979). A contested case is statutorily
defined as “a proceeding before the Mayor or any agency in which the legal rights,
duties, or privileges of specific parties are required by any law (other than this
subchapter), or by constitutional right, to be determined after a hearing before the
Mayor or before an agency.” D.C. Code § 2-502 (8) (2012 Repl.). There is an
exception to the exception, however: The statutory definition of a contested case
excludes certain determinations, like the “selection or tenure of an officer or
employee of the District,” with the result that these selection or tenure challenges
cannot be appealed directly to this court under the DCAPA. Id. Rather, review in
such cases is properly conducted in the first instance by the Superior Court. See
Capitol Hill, 410 A.2d at 188 (if a claim falls outside of the definition of a
(…continued)
the CMPA, may be precluded. See, e.g., Coleman v. District of Columbia, No. 11-
CV-937 (D.C. Dec. 12, 2013).
10
contested case, “[a]ny party aggrieved by an agency‟s decision may initiate an
appropriate equitable action in the Superior Court to seek redress”).
Whether the Superior Court had jurisdiction to entertain Lt. Nunnally‟s
petition for review (thereby giving this court jurisdiction to entertain her appeal
from Superior Court) thus turns on whether her claim for non-chargeable sick
leave falls within the selection-or-tenure exception to contested cases under the
DCAPA. This court held in Money v. Cullinane, 392 A.2d 998 (D.C. 1978), that a
decision by the MPD regarding non-chargeable sick leave under the predecessor
statute to the CMPA8 fell within the selection-or-tenure exception. We reasoned
that whether to grant such leave is a “facet[] of personnel management.” See id. at
999. In support of this determination, we cited to Wells v. District of Columbia Bd.
of Ed., 386 A.2d 703 (D.C. 1978), in which this court had previously analyzed the
legislative history of the DCAPA and held that the selection-or-tenure exception
“encompass[es] virtually all personnel decisions.” Id. at 705.
8
The statute at issue in Money was 5 U.S.C. § 6324 (a). See 392 A.2d at
998. In 1979, this provision was superseded by the provision of the CMPA which
can be now found at § 1-612.03 (j). See D.C. Code § 1-632.02 (a)(6) (2012 Repl.).
The relevant language is identical.
11
We see no reason to differently designate non-chargeable sick leave claims
now pursued under the CMPA. Although MPD resolves such claims using a more
rigorous adjudication-like process,9 the fact remains that whether to award non-
chargeable leave is a personnel matter. And since Money, this court has reaffirmed
that it espouses a broad interpretation of the selection-or-tenure exception. Thus,
in Kennedy v. Barry, 516 A.2d 176 (D.C. 1986), we held that all matters of
personnel management, not simply the routine “day-to-day” decisions, qualify for
the exception. See id. at 179 (stating that “[a] fair reading of Money does not
support . . . [an] effort to distinguish day-to-day personnel decisions from other
kinds of decisions” pertaining to personnel management).
Furthermore, in the years since the removal of grievances from OEA‟s
jurisdiction, it has been our practice to entertain appeals from the Superior Court‟s
review of MPD non-chargeable leave determinations. See, e.g., Smallwood v.
District of Columbia Metro. Police Dep’t, 956 A.2d 705, 706-07 (D.C. 2008)
(reviewing a non-chargeable sick leave claim first made to MPD‟s Director of
Medical Services Division, then reviewed by MPD Human Services, then reviewed
9
In District of Columbia v. Jones, 442 A.2d 512 (D.C. 1982), we held that
the procedure then in place at MPD for the determination of non-chargeable leave
eligibility was constitutionally deficient, and that the Due Process Clause required
a fair hearing with certain procedural formalities. Id. at 521-24.
12
by the Superior Court); Franchak v. District of Columbia Metro. Police Dep’t, 932
A.2d 1086, 1088-89 (D.C. 2007) (same). This court‟s determination in similar
cases with this procedural posture suggests that Money remains good law and its
selection-or-tenure designation for non-chargeable sick leave claims should be
extended to such claims under the CMPA.
Finally, acknowledging Superior Court jurisdiction over review of non-
chargeable sick leave determinations is consistent with our modern administrative
scheme. The contested cases that this court currently hears generally fall into one
of two categories: either they come from trained adjudicators employed by the
Office of Administrative Hearings,10 who are bound by certain procedural
requirements, see D.C. Code § 2-1831.09 (2012 Repl.), or they come from an
agency‟s external review board, whose membership and procedures are statutorily
defined.11 By contrast, authority for creating the process to award non-chargeable
10
OAH was created in 2002 to adjudicate cases on review from agencies as
designated by statute. See Office of Administrative Hearings Establishment Act of
2001, D.C. Law 14-76 (codified at D.C. Code §§ 2-1831.01 to 2-1831.19 (2012
Repl.)).
11
For example, although non-chargeable leave determinations are made by
the MPD Director of Medical Services, see D.C. Code § 5-708.01 (b) (2012 Repl.),
the Police and Firefighters Retirement and Relief Board is charged with hearing
officers‟ long-term disability and retirement claims, see D.C. Code § 5-722 (2012
(continued…)
13
leave is delegated by statute to the MPD, see D.C. Code § 5-708.01 (b), and MPD
has established a procedure for internal resolution.12 Before they come to this
court, it is appropriate for these cases to go first to the Superior Court where any
factual deficiencies may be discerned and the legal claims raised may be neutrally
assessed.
For all of these reasons, we hold that Lt. Nunnally‟s claim for non-
chargeable sick leave under the CMPA falls within the selection-or-tenure
exception to “contested cases” under the DCAPA, that the Superior Court properly
reviewed MPD‟s denial of Lt. Nunnally‟s request as an exercise of its general
jurisdiction, and that we have jurisdiction to review the Superior Court‟s resolution
of her claim.
III. Statutory Analysis
(…continued)
Repl.). The composition of the Board is prescribed by statute, see id., and its
procedures are laid out in regulations. See 7 DCMR §§ 2500-99 (1986).
12
Also by contrast, these procedures, although subject to challenge under
Jones, see 442 A.2d at 517, are largely left to the MPD‟s discretion and subject to
change without notice to or input from the public.
14
Determining that the case has properly reached this court, we turn to the
merits of Lt. Nunnally‟s claim and hold that the Superior Court erred in affirming
the MPD‟s determination that her psychological injuries were not incurred in the
performance of duty within the meaning of D.C. Code § 1-612.03 (j).13
“We review the affirmance of an administrative action by the trial court in
the same way that we would examine the agency‟s ruling if it came before us on
direct review from the agency.” Hahn v. Univ. of District of Columbia, 789 A.2d
1252, 1256 (D.C. 2002). Generally that means we accept the agency‟s findings of
fact if they are supported by substantial evidence. See Franchak, 932 A.2d at
1091; Pierce v. District of Columbia Police & Firefighters’ Ret. & Relief Bd., 882
A.2d 199, 205 (D.C. 2005). But this appeal does not implicate any findings of
fact; rather, Lt. Nunnally is challenging the MPD‟s determination that, even if it
were true that she suffered psychological injury as a result of retaliatory activities
by coworkers after she reported being sexually harassed by a supervisor, such an
injury did not qualify for non-chargeable leave under D.C. Code § 1-612.03 (j) as a
13
The Superior Court did not address the propriety of the MPD‟s denial of
Lt. Nunnally‟s claim under its stress protocol and the MPD has not argued before
this court that its decision was independently justified on this basis. Thus, we
address only Lt. Nunnally‟s categorical eligibility for non-chargeable leave under
the relevant statutes.
15
matter of law. In reviewing this legal conclusion, our review is 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.‟” Washington Metro. Area Transit Auth. v. District of Columbia
Dep't of Emp’t Servs., 683 A.2d 470, 472 (D.C. 1996) (quoting Harris v. District of
Columbia Office of Worker's Comp., 660 A.2d 404, 407 (D.C. 1995)). 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. See Chevron, U.S.A, Inc. v. Natural
Res. Def. Council, 467 U.S. 837, 842-43 (1984); see also O’Rourke v. District of
Columbia Police & Firefighters’ Ret. & Relief Bd., 46 A.3d 378, 383 (D.C. 2012).
We begin with an examination of the plain language of the statute. See
Parrish v. District of Columbia, 718 A.2d 133, 136 (D.C. 1998). D.C. Code § 1-
612.03 (j) provides that “[s]ick leave may not be charged to the account of a
uniformed member of the Metropolitan Police Department . . . for an absence due
to injury or illness resulting from the performance of duty.” The statute does not
provide a definition for the phrase “performance of duty.” But its meaning seems
clear on its face, and, in conjunction with the preceding language referring, without
limitation, to “injury or illness,” broadly encompasses any injury — physical or
16
psychological — incurred while an MPD officer is working, i.e., performing her
duties.
Our understanding of “performance of duty” under D.C. Code § 1-612.03 (j)
is in line with this court‟s broad interpretation of the same phrase when used in the
related context of the District of Columbia Police and Firefighters Retirement and
Disability Act (“Disability Act”).14 Although this court has not expressly analyzed
the meaning of “performance of duty” under the Disability Act, we have affirmed
its application to any “on-the-job” injury.
For example, in Britton v. District of Columbia Police & Firefighters' Ret. &
Relief Bd., 681 A.2d 1152, 1153 (D.C. 1996), this court found that a police officer
met the burden of showing performance of duty injury where his inner ear was
14
Under the Disability Act, the phrase “performance of duty” appears
frequently. For example, whether an injury is incurred “in the performance of
duty” dictates the size of the pension received by an officer who retires because of
a disabling condition, see D.C. Code §§ 5-709 (a), 5-710 (a) (2012 Repl.), and
affects the payment of survivor benefits and annuities, see D.C. Code § 5-716(2012 Repl.).
The linkage between “performance of duty” in D.C. Code § 1-612.03 (j) and
the Disability Act is further supported by the apparent application of the procedural
provision in D.C. Code § 5-708.01 (addressing “processing of claims of injuries
allegedly sustained within the performance of duty”) to claims for non-chargeable
sick leave under D.C. Code § 1-612.03 (j). See, e.g., Smallwood, 956 A.2d at 707-
08; Franchak, 932 A.2d at 1089.
17
injured by a backfiring bus that had been provided to transport him and fellow
officers back to their stationhouse after they finished a crowd control detail
elsewhere in the District.15 And in a case with substantially similar facts to the
instant appeal we held that such on-the-job injuries included psychological injuries.
See Pierce, 882 A.2d at 206. In Pierce, we held that a plaintiff who alleged that
her mental illness stemmed from harassment and discrimination in the workplace
had “amply met her initial burden of making a prima facie showing that her mental
illness was related to an on-duty causative event,” id., although we ultimately
determined that her inability to prove that incidents of harassment actually
occurred doomed her claim.16 Id. at 209. The focus on “on-duty causative events”
in these cases is consistent with our understanding of the plain meaning of
“performance of duty.”
Even assuming, however, that the statutory phrase “performance of duty” is
ambiguous enough to warrant consideration of a more specific agency
interpretation, we find no such interpretation on which we can reasonably rely.
15
By contrast, we held in Smallwood that an off-duty officer who was
injured in the course of a shootout with a would-be robber did not suffer injuries in
the performance of duty. See 956 A.2d at 709.
16
See also Beckman v. District of Columbia Police & Firefighters’ Ret. &
Relief Bd., 810 A2d 377, 386 (D.C. 2002) (holding that a secret service agent who
alleged that on-the-job stress resulted in a psychological injury had made out a
prima facie case that he had incurred a performance of duty injury).
18
Ordinarily, in interpreting a statute that uses ambiguous language, “[w]e accord
great weight to any reasonable construction of a regulatory statute by the agency
charged with its administration,” see United Parcel Serv. v. District of Columbia
Dep’t of Emp’t Servs., 834 A.2d 868, 871 (D.C. 2003) (citation and internal
quotation marks and brackets omitted), and we will overturn an agency‟s legal
interpretation only when it is “plainly wrong or inconsistent with the legislature‟s
intent,” Red Star Express v. District of Columbia Dep't of Emp’t Servs., 606 A.2d
161, 163 (D.C. 1992); see also United Parcel Serv., 834 A.2d at 871. Consistent
and longstanding agency interpretations, such as those enacted in regulations, merit
the most deference, see Kelly v. District of Columbia Dep’t of Emp’t Servs., 76
A.3d 948, 955 (D.C. 2013); on the other hand, agency guidance manuals and other
internal documents receive much less deference.17
In analyzing Lt. Nunnally‟s claim, the MCHO cited to no MPD regulation
that defines, much less narrows the meaning of, “performance of duty,” because no
such regulation exists. Although MPD enacted an emergency rule in 2005 that
17
See United States v. Mead Corp., 533 U.S. 218, 228 n.9 (2001) (noting
that an internal agency manual that is not “subject to the rigors” of the notice and
comment process is entitled to only “some deference” (citing Reno v. Koray, 515
U.S. 50, 61 (1995)) (internal quotation marks omitted)); Christensen v. Harris
County, 529 U.S. 576, 587 (2000) (“interpretations contained in policy statements,
agency manuals, and enforcement guidelines, all of which lack the force of law . . .
do not warrant Chevron-style deference”).
19
defined a performance of duty injury as one “that arises out of and in the course of
a member performing one or more of the essential tasks of his or her duties as a
member of the [MPD]” and excluded “[p]sychiatric injuries” unless “they are the
result of a „critical incident,‟” 7 DCMR § 2499 (2005), the emergency rule was
allowed to expire and this definition was never adopted in a permanent regulation.
The MPD asserts that its narrow interpretation of “performance of duty” to
exclude Lt. Nunnally‟s psychological injury is supported by its General Order PER
100.11 ¶ III.18 As a preliminary matter, we note that an MPD General Order
“„essentially serves the purpose of an internal operating manual,‟” District of
Columbia v. Henderson, 710 A.2d 874, 877 (D.C. 1998) (quoting Abney v. District
of Columbia, 580 A.2d 1036, 1041 (D.C.1990)), and “do[es] not have the force or
effect of a statute or an administrative regulation,” Wanzer v. District of
Columbia, 580 A.2d 127, 133 (D.C. 1990). Accordingly, we owe less deference to
such a statement of MPD policy.19
18
The General Order does not reference D.C. Code § 1-612.03 (j); instead it
cites to D.C. Code § 5-708.01, see supra note 14.
19
See supra note 17.
20
In any event, the General Order to which MPD directs our attention does not
contradict our reading of the plain language of the statute; rather, it supports it.
General Order PER 100.11 ¶ III provides that a “performance of duty” (POD)
injury is one that “arises in the course of a member performing his/her duties as a
police officer” and that an “on-duty” POD injury “is sustained when a member was
legally on duty, as evidenced by time and attendance records, and engaged in work
for the Department” — in other words, any time an officer is on the clock. MPD
contends that we should read the words “as a police officer” as some sort of
limitation on the scope of “performance of duty,” but offers no limiting principle
other than to assert that Lt. Nunnally‟s alleged psychological injuries by her
coworkers do not qualify. We see no limitation to “duties as a police officer” other
than to require that the officer be engaged in work activities.
The MPD also argues that, to discern whether Lt. Nunnally‟s alleged
psychological injury was a performance of duty injury under D.C. Code § 1-612.03(j), the MCHO properly relied on this court‟s decision in Estate of Underwood v.
Nat’l Credit Union Admin., 665 A.2d 621 (D.C. 1995). An agency‟s interpretation
21
of our case law does not trigger any obligation of deference on our part;20 but in
any event, the MCHO‟s reliance on Underwood was in error.
Nowhere in Underwood did we address eligibility for non-chargeable sick
leave, much less discuss the meaning of “performance of duty” for a police officer
under D.C. Code § 1-612.03 (j) (or any provision of the Disability Act). This is
unsurprising because the plaintiff in Underwood — a civilian — was not seeking
to establish that she was eligible to receive special benefits accorded to law
enforcement officials with performance of duty injuries. Rather, the issue in
Underwood was whether the plaintiff could sue her employer for damages or
whether the Workers‟ Compensation Act (WCA) “provided the exclusive remedy
for [an employee‟s] emotional distress claim against [her employer]” when she
suffered emotional distress on the job as a result of sexual harassment. Id. at 624.
We determined that a psychological injury stemming from sexual harassment was
not a compensable workplace “injury” for the purposes of the WCA, id. at 635,21
20
We defer to an agency‟s reasonable interpretation of a statute it is charged
with implementing in recognition of “agency expertise.” See United Parcel Serv.,
834 A.2d at 871. But interpretation of our case law is outside the expertise of the
MPD.
21
In so doing we did not analyze whether the injury was incurred in the
performance of duty because the WCA does not contain this language. See D.C.
Code § 36-301 (12) (2012 Repl.).
22
and that the plaintiff‟s claims under the D.C. Human Rights Act and the common
law doctrine of intentional infliction of emotional distress were therefore not
preempted by the WCA, see id. at 638. In short, the legal analysis underpinning
the court‟s decision in Underwood is completely separate from and unrelated to Lt.
Nunnally‟s claim for non-chargeable sick leave under D.C. Code § 1-612.03 (j).22
Thus even were we to determine that “performance of duty” is an ambiguous
statutory term, we could not defer to the MCHO‟s interpretation, as it is plainly
wrong and inconsistent with the legislature‟s intent. As we explained in our plain
22
Notwithstanding that non-chargeable sick leave and “performance of
duty” were never discussed, the MPD argues that because this court in Underwood
determined that a psychological injury stemming from sexual harassment fell
outside the workers‟ compensation scheme, see 665 A.2d at 635, the MPD could
also determine that psychological injuries resulting from sexual harassment and
retaliation for such harassment are likewise not compensable under D.C. Code § 1-
612.03 (j). The MPD reasons that D.C. Code § 1-612.03 (j) is “part of a workers
compensation scheme analogous to the WCA,” just as the Disability Act has been
“commonly understood to serve a purpose similar to that of a workers‟
compensation statute.” Vargo v. Barry, 667 A.2d 98, 101 (D.C. 1995).
Although sections of the CMPA may, like the Disability Act, “serve a
purpose similar” to the WCA, this analogy has little utility in this case. Our task is
to analyze the specific statute before us, § 1-612.03 (j), and a similar purpose
cannot overcome a meaningful difference in statutory language. In any event, this
court stated in Pierce that “sexual harassment is not to be tolerated in any
workplace and, if the allegations are shown to be true, they could be a basis for
recovery” for a performance of duty injury. 882 A.2d at 209. We deem Pierce to
be the more persuasive precedent.
23
language analysis, we interpret ”performance of duty” broadly to include the injury
alleged here by Lt. Nunnally.
For the reasons set forth above, we hold that Lt. Nunnally has alleged an
injury that was incurred in the performance of duty under D.C. Code § 1-612.03(j). Thus we reverse the Superior Court‟s order denying her petition for review and
remand for further proceedings in accordance with this opinion.
Reversed and remanded.