![](media/image1.wmf){width="0.7826388888888889in"
height="0.78125in"}**DEPARTMENT OF VETERANS AFFAIRS**

> **Address**

**City, State Zip**

Phone number: Fax:

Date

Attn: Representative's Name

Office of Workers' Compensation Programs-NOO

DFEC

P O Box 0000 District 00

London KY 40742-8300

Re: (CLAIMANT)

Case File Number: 00-00-000

Dear Representative,

In addition to the agency correspondence of record dated (Date),
supporting evidence, and witness statements previously submitted, the
agency would like to provide the following information in response to
the hearing transcript dated (Date).

The issue for determination is whether the claimant sustained an
emotional condition as a result of factors of her federal employment.

ALLEGATION:

The claimant alleged in her testimony, "In February of 2000,
(Supervisor) walked into the (CLAIMANT'S WORK AREA) one morning and
announced that she would be our new supervisor. After she left,
(Co-worker) began to cry. She said that she transferred out of her
previous workplace because she wanted to get away from (Supervisor).
(Co-worker) told me that (Supervisor) did not like her. (Co-worker) was
right. She was quickly removed from the (CLAIMANT'S WORK AREA). My job
had suddenly become stress inducing."

RESPONSE:

There is no evidence to support that this conversation took place as
alleged, or evidence to support the claimant's perceptions regarding
(Co-worker) "not being liked" by her supervisor or being "removed" from
the (CLAIMANT'S WORK AREA). This personal feeling is self-generated.
This is an unsubstantiated allegation with no factual evidence to
support the claimant's perceptions regarding the manager's dislike of
another employee or that the employee was "removed."

ALLEGATION:

"(Claims Examiner) failed to take into account the documentation of my
medical care that I had submitted and was in her possession at the time
of her Decision."

RESPONSE:

The Board has held that until a claimant has identified incidents or
occurrence that are alleged to have arisen out of the employment for
compensation purposes, it is unnecessary to address the medical
evidence. *Minnie L Bryson, 44 EBAC 713 (1993).*

ALLEGATION:

The claimant expressed concern regarding staffing issues in the
(CLAIMANT'S WORK AREA). The claimant alleged, "at one point I was the
only qualified nurse in there knowing what to do for every patient that
came of the operating room." The claimant stated, "I had no control over
the staffing problem and my supervisor's lack of concern and arrogance
was very stressful." "This resulted in fear of losing my license due to
inadequate staffing."

RESPONSE:

The claimant's emotional reaction to the alleged staffing issues is not
compensable. Staffing is a duty of the supervisor and not a part of the
claimants regularly assigned duties or specially assigned duties.

Regarding the alleged staffing issue noted by the claimant in her
statement previously submitted, (Name), Clinical Director for the
Surgical Care Line, stated, "*We did not have staff shortages*, which
would have affected Ms. (CLAIMANT). If shortages arise, (Supervisor)
works as a staff R.N. and covers the shortage. If planned AL is to be
covered, it's usually with a float nurse or an MRT nurse."

Please refer to the statement provided by (Supervisor) dated May 24,
2002, paragraph 3. (Supervisor) states, " The (CLAIMANT'S WORK AREA)
Staffing Plan meets the American Society of Post Anesthesia Nurses and
the SAVAHCS requirements. See the (CLAIMANT'S WORK AREA) Administrative
Manual for how the plan flexes up to meet the Post-op needs of patients
coming out of surgery before the second shift arrives. Th*ere has never
been an unsafe staffing situation* because when the census surpasses a
1:2 ratio, myself or another cross-trained nurse floats to the
(CLAIMANT'S WORK AREA) to assume patient care. If a patient comes out of
surgery unstable, the CRNA or Anesthesiologist is responsible for
staying with the patient and the RN until the patient is stabilized."

In paragraph 8, (Supervisor) continues, "I spend a great deal of time
staffing (CLAIMANT'S WORK AREA). I recover patients and I am competent
in all of the areas that I supervise. If I left early, I took leave.
When Ms. (CLAIMANT) had patients in the (CLAIMANT'S WORK AREA) and
requested help, I would float Ms. Solomon back to help her**.** *I have
never left an unsafe staffing situation. This is unfounded."*

The Board has held that an employee's emotional reaction to perceived
poor management of the work environment is not a compensable factor of
employment. In *Donna J Dibernardo, 94-1317 (1998*), the claimant was
dissatisfied with the management of her work unit. The Board held that
"an employees' dissatisfaction with perceived poor management
constitutes frustration from not being permitted to work in a particular
environment or to hold a particular position and is not compensable
under the Act."

The claimant has failed to establish the occurrence of an event to meet
fact of injury. The claimant's emotional reaction to her belief that she
was the only qualified nurse or that staffing problems existed, is
self-generated and not in the performance of duty. Similarly the
claimant's fear of losing her licensee, is self-generated and not in the
performance of duty.

ALLEGATION:

"In fact, I filed a federal discrimination lawsuit for religious
discrimination against the VA and had a strong probability of
succeeding. The VA coerced me into dropping the lawsuit if I was allowed
to escape the (CLAIMANT'S WORK AREA) to a new job position in home based
health care which I had already been informally accepted to."

RESPONSE:

This is no evidence to support that the claimant was coerced into an
agreement. Please see the settlement agreement previously provided to
the Office, which states, "This agreement has been entered into freely
by both parties." The settlement agreement was signed and dated by the
claimant on October 17, 2002.

Settlements in other administrative forums cannot be used to
substantiate error or abuse. *Michael R Pringle, 93-1262 (1995*). The
board in *Pringle*, found that the settlement agreement did not
constitute evidence of error or abuse. Such settlements or agreements
are entered into without prejudice to either party. They place no blame
or assign fault but serve merely to put an end to the disputed matter
without formal adjudication to the satisfaction of all involved. For
this reason, the claimant may *not* now use this settlement agreement to
substantiate an allegation of error or abuse in this matter by the
supervisor. The claimant has failed to establish the occurrence of an
event to meet fact of injury.

ALLEGATION:

"I felt embarrassed and humiliated when (Supervisor) admonished me in
front of others asking me to come into her office so she could give me
my verbal warning which was really in writing and placed into my record
as such. This reprimand was based on what my supervisor called
commonsense." "I have an email, which, of course, they didn't provide
that email, but I happen to have a copy...."

RESPONSE:

Please refer to the agency response dated December 19, 2003. The
supervisor, (Supervisor) denies that she counseled or embarrassed the
employee in public; rather she simply stated to the claimant that she
wished to meet with her later in the day. The comments of the manager,
Ms. (Name), support (Supervisor)'s statement regarding this event.

An emotional reaction to a performance evaluation, or in this case
merely being informed of a meeting, is not in the performance of duty
and not a compensable factor of employment. The Board has held that
unsubstantiated allegations cannot be considered factual. The claimant
has failed to establish the occurrence of an event to meet fact of
injury.

After a review of the claimant's official personnel folder, there is no
evidence to support that the claimant was *admonished* in front of
others, was *admonished*, issued a *verbal warning*, issued a *written
warning*, or that any such documents were placed in her official
personnel folder. Per agency regulations, if an employee is admonished
or reprimanded a copy of any such action would be retained in the
official personnel folder.

The agency did not provide the email to the Office because it is not
relevant to the discussion, nor does it support the claimant's
allegation that she was counseled in public. The supervisor held a
private discussion with the claimant to clarify that it is the
employee's responsibility to notify the supervisor of incapacity for
duty, an established work process regarding leave issues. *The manager's
request to be properly notified of the claimant's incapacity for duty
supports the manager's conscientious concern to adequately staff the
(CLAIMANT'S WORK AREA).*

The supervisor requested that the claimant follow established procedures
for requesting sick leave as outlined in the Master Agreement made
between the Department of Veteran's Affairs and the American Federation
of Government Employees as referenced below.

**[Master Agreement Article 32 Section 4 - Sick Leave]{.underline}**

A. Sick leave is an employee\'s earned benefit and will be granted to
the employee for appropriate absences such as when an employee:

1\. Receives medical, dental, or optical examination or treatment.

2\. Is incapacitated for the performance of duties by sickness, injury,
pregnancy, or confinement.

3\. Is required to give care and attendance to an immediate family
member who is afflicted with a contagious disease.

4\. Would jeopardize the health of others by being present on duty after
exposure to a contagious disease.

*[Note:]{.underline}* Sick leave is also authorized under the provisions
of the Family Friendly Leave Act (Section 18 of this Article).

*[B. It is the responsibility of an employee who is incapacitated for
duty to notify the immediate supervisor or designee (or to have any
responsible person make the notification for the employee) at the work
site as soon as possible but no later than two hours after the employee
is scheduled to report for duty unless mitigating circumstances
exist.]{.underline}*

It should be noted that the claimant testified that she rarely called in
sick. The claimant's leave record reflects, on the date of filing her
CA-2, a sick leave balance of 21.25 hours. The claimant is in leave
category 3, 15 or more years of service.

The claimant's frustrations regarding administrative and personnel
matters not related to her regular or specially assigned work duties are
not compensable*. Beverly Diffin, 48 ECAB, Issued 10/3/96.*

ALLEGATION:

"My co-workers and I were inappropriately expected to attend a seminar,
masqueraded as a barbeque at (Supervisor)'s home for the promotion of a
tax evasion scheme. Since at that time I had not been under her employee
for very long, I felt like I was being threatened with loss of my job or
other retaliation if I did not participate in this scheme." The claimant
testified, "The man who gave the seminar was a minister from her church.
It was called the taxpeople.net. It was very illegal and I was pressured
(harassed) on a daily basis to try to join this tax scheme."

RESPONSE:

Please review the attached statement provided by (Supervisor) dated
January 28, 2004. (Supervisor) acknowledges that she invited a number of
guests to her home, some of which were employed by the medical center,
to attend a home-based business seminar. (Supervisor) denies that she
threatened, harassed or coerced the claimant. (Supervisor) states that
to her knowledge there were no ministers or pastors present at the
seminar.

This is an unsubstantiated allegation, which cannot be considered as
factual. The claimant has not established that these allegations of
harassment occurred as alleged. The claimant's perception that she was
expected to attend a seminar, being threatened with the loss of her job
or other retaliation if she did not attend or join is an unsubstantiated
allegation. The claimant has failed to establish the occurrence of an
event to meet fact of injury.

ALLEGATION:

"At some time after my transfer to home based health care, (Supervisor)
was removed from her managerial position and relocated to a
non-managerial position in nursing education." The claimant opines that
(Supervisor) was penalized by the agency for her mismanagement of
(CLAIMANT'S WORK AREA) and her job change supports the validity of her
allegations of harassment and unequal treatment.

RESPONSE:

Please see the attached statements provided by Dr. (Name), Clinical
Director, Education, Training and Development for the (Name of VA
facility). The agency flatly denies that (Supervisor) was removed from
her position as the manager of the (CLAIMANT'S WORK AREA). A position
became available (Supervisor) applied for the position, was found to be
a qualified candidate and was selected because of her professionalism,
education and talent. This is, to say the very least, an unsubstantiated
allegation and not based on factual evidence.

ALLEGATION:

The claimant makes several comments regarding the agency correspondence
dated March 5, 2004, to the Office noting our concerns about the claim.
The claimant alleges the agency comments are based on biased hearsay,
not direct observation, and our statements are not credible. "In
(Supervisor)' statement to (Claims Examiner), she wrote that Mr.
(Co-worker), certified nurse anesthetics, CRNA, had written a letter to
her stating that I was "an obstruction to patient care." The claimant
continues, "If such a letter actually existed; (Supervisor) would have
submitted it to support her position."

RESPONSE:

Please review the attached letter written by (Co-worker), CRNA to
(Supervisor), not previously submitted nor intentionally withheld. Mr.
(Co-worker) states, "I am writing this memo as follow-up to our
conversation of the morning of 3/23/05. I must voice my complaint about
(CLAIMANT). *Ms. (CLAIMANT) is truly an obstruction to patient care*.
Every day Ms. (CLAIMANT) has a new way to obstruct the delivery of
anesthesia and surgery to our patients. When she is asked to help with a
patient she has excuses. When asked to obtain equipment she argues. When
on the early shift she is responsible for the laterality form, she does
not obtain them. Every day Ms. (CLAIMANT) uses work time to cruise the
Internet, make personal phone calls, schedule vacations for herself. She
is frequently seen leaving early claiming no lunch break. Ms. (CLAIMANT)
always eats lunch. The occurrence that precipitated this letter was that
laterality form, this patient was in (CLAIMANT'S WORK AREA) for 30
minutes and Ms. (Claimant) did nothing to help that process. I would
like to say that the job we do is a team effort everyone must help. When
one person obstructs that effort, the system breaks down and causes long
delays, this was an urgent case for bleeding and he deserved to be dealt
with promptly, that was the goal."

SUMMARY:

Where disputes and incidents shown to be the result of discrimination or
harassment occur in the performance of regular or specially assigned
duties, they can constitute compensable employment factors. But, for
harassment or discrimination to give rise to a compensable disability
the claimant must submit evidence that such harassment or discrimination
did in fact occur. *Karen E Humphrey, 44 ECAB 908 (1993).*

The mere fact that a disease or disability occurred during or after a
period of federal employment is not sufficient to entitle an employee to
compensation benefits. To come within the scope of the Federal
Employees' Compensation Act, the disease or disability must have been
proximately caused by factors of employment. The Act was not intended as
a sickness benefit program to cover the misfortune of any disability,
which has no relationship to your employment.

The hearing testimony provided no new relevant evidence, which would
support that the claimant sustained an emotional condition, which arose
out of and in the course of her federal employment.

The agency contends that the evidence of record fails to establish that
the claimant sustained injury while in the performance of her federal
duties, and the decision of the District Office to deny benefits in this
case should be upheld.

Sincerely,

Name

Workers' Compensation Program Manager