DC Court of Appeals Rules Sexual Harassment Not Compensable as a “Performance of Duty” Disability

The District of Columbia Court of Appeals has affirmed a decision by the District of Columbia Police and Firefighters’ Retirement and Relief Board that disabling stress associated with sexual harassment and/or a sexual assault does not qualify a firefighter for a performance of duty disability pension.

The ruling was handed down last week in the case of Nicole R. McCrea v. D.C. Police and Firefighters’ Retirement and Relief Board. McCrea claims she suffered psychological problems associated with sexual harassment and a sexual assault which took place in a fire station in 2013. As explained by the court:

  • 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 and requested that her ensuing mental health injury be classified as a POD [performance on duty] 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.
  • 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.

The retirement board concluded McCrea was permanently disabled, but that sexual harassment, or even a sexual assault, would not qualify as a “performance of duty” injury necessary for a POD pension. She was instead granted a regular disability pension.

McCrea, acting as her own attorney, filed an appeal to the Court of Appeals arguing that the board should not have retired her, or in the alternative should have awarded her a POD disability pension, not a regular disability pension.

The Court of Appeals rejected both of McCrea’s arguments, and affirmed the retirement board. In the court’s own words:

  • The Board determined that Ms. McCrea suffered from an ADAD [Adjustment Disorder with Anxiety and Depression], “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.”
  • 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 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.”
  • “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.
  • 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 coworkers 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 unable to complete the “essential duty functions” of her job is not a member performing her “full range of duties” pursuant to the [pension statute] and is considered “disabled for useful and efficient service” in that member’s capacity.
  • 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.”
  • 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.”
  • 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 coworkers, 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.
  • The PFRDA defines a compensable injury as a disabling injury incurred “in the performance of duty.”
  • 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.
  • “[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.
  • 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.
  • We have explained that if a uniformed member victim of sexual harassment was to be compensated under [workers comp] for injuries incurred in the POD, then the victim “would be forced to,” settle for a wholly administrative remedy for a personal injury, which is not aligned with “the kind of injury involved,”
  • 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.”
  • 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.
  • We conclude that sexual assault by a co-worker is analogous to sexual harassment.
  • We hold that the rationales set forth in [our earlier cases] extend to claims of workplace sexual assault.
  • Therefore, mental illness claims that are the result of workplace sexual assault are not compensable under the PFRDA as injuries incurred in the POD.

Here is a copy of the ruling: McCrea v. D.C. Police & Firefighters_ Ret. & Relief Bd

McCrae does have an active lawsuit pending in US District Court alleging conspiracy, disability discrimination, constructive discharge, due process violations, defamation, medical malpractice, fraud, and intentional infliction of emotional distress. Here is a copy of her original complaint which more fully explains her allegations: McCrae v DC

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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