United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Oakland, CA, Employer 

__________________________________________ 

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Docket No. 15-28 

Issued: April 20, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 7, 2014 appellant filed a timely appeal from May 22, 2014 merit decisions of 

the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case. 

ISSUES 

The issues are: (1) whether appellant sustained an emotional condition in the 

performance of duty; and (2) whether he sustained an emotional condition on December 18, 

2012 in the performance of duty. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY -- FILE NO. xxxxxx130 

On December 19, 2012 appellant, then a 41-year-old claims examiner, filed an 

occupational disease claim alleging that he sustained migraine headaches, irritable bowel 

syndrome, gastroesophageal reflux disease (GERD), and aggravated psoriasis causally related to 

factors of his federal employment. He attributed his condition to stress from filing charges with 

the Federal Labor Relations Authority (FLRA) against the employing establishment and 

resulting retaliation by supervisors and the union. Appellant related that the stress “increased the 

severity of [his] service-connect[ed] disabilities.” He stopped work on December 19, 2012. 

OWCP assigned the claim file number xxxxxx130. 

In a letter dated December 6, 2012, appellant informed the FLRA that he had filed 

charges against the employing establishment and the union. He stated: 

“Yesterday, December 5, 2012, I was threatened by a union steward, Labrinia 

McDougle, stating that she read the paperwork I gave Sidney Byrd the union 

president regarding FLRA charges. She stated that I don’t know who I am 

messing with and that I better watch my back coming to and from work because 

she is from Oakland and knows people who can take care of problems like me.” 

Appellant informed management of the incident and requested a transfer but it was 

deferred pending an investigation. 

In an e-mail dated December 5, 2012 to William Vallejos, his supervisor, appellant 

related that Ms. McDougle threatened him after Mr. Byrd showed her documents. He related 

that he felt afraid at work and requested assistance. In a December 6, 2012 response, 

Mr. Vallejos informed appellant that the employing establishment was investigating the incident 

and asked that he not have contact with Ms. McDougle. He asked if there were any witnesses to 

the incident. Appellant replied that a couple of days ago the union representatives were behaving 

in a way that was not professional. He indicated that there were probably not witnesses to the 

incident with Ms. McDougle. Appellant stated, “I do not feel the environment is respectful or 

dignified based on my experiences.” He questioned how Ms. McDougle could threaten people 

with union support. 

In an e-mail to Mr. Vallejos dated December 18, 2012, appellant related that James 

England, a supervisor, followed him from the 14th floor to the 15th floor. On the 15th floor 

Mr. England informed appellant that his break time was 9:30 a.m. Appellant did not know that 

he had a break time. He asserted that Mr. England, who was not his supervisor, was 

disrespectful in discussing the matter in front of coworkers. Appellant stated, “I would also like 

to find out what is the status with the investigation for the threats on my life that took place at 

work on December 5, 2012.” He advised that he did not feel safe at work. 

In an e-mail dated December 19, 2012, appellant enclosed a statement from Scott Harlan, 

who witnessed the incident with Mr. England.2

 Mr. Harlan related that he and appellant were on 

 2

 In an e-mail dated December 19, 2012, appellant indicated that he was filing a traumatic injury claim form to 

obtain continuation of pay. 
3

a break and talking about 7:30 a.m. on December 18, 2012. Mr. England walked by twice and 

then on the third time around “appeared to chastise [appellant] about interrupting and accused 

him of not being on an authorized break.” Mr. Harlan indicated that it was not professional for 

Mr. England to criticize appellant in front of coworkers and noted that he was not appellant’s 

supervisor. He stated, “I have witnessed on multiple occasions conversations being carried on 

with no interruption. It seems as though the perception is that the intention is to pick upon 

certain employees.” 

In a December 19, 2012 e-mail message to William Pennerman, a manager, appellant 

related that he had experienced three instances of retaliation after filing an FLRA complaint. On 

December 5, 2012 a union shop steward threatened to kill appellant. The employing 

establishment was investigating the incident and instructed him “to avoid contact with that 

person until the investigation is completed.” On December 18, 2012 another incident occurred 

which appellant reported to his supervisor and other managers. He was sick with a migraine 

headache yesterday and Mr. Vallejos told him to fill out a form before going home. Appellant 

believed that this was another instance of retaliation because no one else had to fill out the form. 

By decision dated January 10, 2014, OWCP denied appellant’s occupational disease 

claim under file number xxxxxx130. It found that he had not established any compensable 

factors of employment. 

On February 18, 2014 appellant requested reconsideration of the January 10, 2014 

decision. He contended that his traumatic injury claim should be considered as part of his 

occupational disease claim. 

In a decision dated May 22, 2014, OWCP denied modification of its January 10, 2014 

decision in file number xxxxxx130. 

On appeal, appellant argues that his emotional condition claims are really one claim. He 

asserts that he became disabled from employment due to the employing establishment engaging 

in “prohibited personnel practices.” 

FACTUAL HISTORY -- FILE NO. xxxxxx128 

On December 19, 2012 appellant filed a traumatic injury claim alleging that on 

December 18, 2012 he sustained migraine headaches, GERD, irritable bowel syndrome, and 

psoriasis due to retaliation by a supervisor for filing FLRA charges for unfair labor practices. 

OWCP assigned the file number xxxxxx128. 

By letter dated January 16, 2013, OWCP advised appellant that the evidence was 

insufficient to show that he experienced the alleged work incident. It noted that he had attributed 

his injury to retaliation from his supervisors and the union from filing FLRA charges and 

requested that he describe in detail the work factors that contributed to his illness. OWCP 

further asked that appellant submit any findings regarding the FLRA allegations. 

In response to OWCP’s request for additional information, appellant related that he had 

submitted all documentation to Mr. Pennerman. He indicated that he was additionally enclosing 

evidence showing that he experienced retaliation after filing his FLRA charge against the 
4

employing establishment. Appellant submitted the December 2012 e-mail messages also 

contained in file number xxxxxx130. 

In a memorandum dated February 1, 2013, Mr. Vallejos advised appellant that he had not 

properly requested leave for his absence beginning December 20, 2012. The supervisor 

informed him that he should submit a proper leave request upon his return to work. 

In an e-mail dated February 5, 2013, appellant asked Mr. Vallejos the “status of the 

investigation regarding the threats posed by Labrina McDougal on December 4, 2012.” He 

related that he felt uncomfortable at work. In a response dated February 11, 2013, Mr. Vallejos 

related, “After a review of the events you reported on December 5, 2012, it was determined that 

there was no evidence found indicating that a threat was made.” He noted that appellant had 

indicated that there were no eyewitnesses and that “any investigation would prove inconclusive. 

In the light of the absence of any additional information and/or witness statements, this matter is 

considered closed.” Mr. Vallejos noted that he had moved appellant on December 6, 2012 to 

another workstation. 

On February 28, 2013 appellant advised that he should not have to fill out a Form SF-71, 

a request for leave for approved absences, as it violated the regulations of OWCP and employing 

establishment. He related that he was experiencing discrimination and harassment. 

In response to OWCP’s request that appellant complete a questionnaire explaining in 

detail the retaliatory actions to which he attributed his condition, on March 6, 2013 he advised 

that OWCP should refer to e-mails and his FLRA charges for information. 

In an undated statement received March 15, 2013, appellant related that he experienced 

migraine headaches due to stress at work after filing charges with the FLRA. He stated, “I have 

been a victim of retaliation and the constant stress of working around people who have been 

allowed to threaten my life and well-being are becoming everyday problems.” Appellant advised 

that stress from the hostile work environment and retaliation for filing FLRA charges also 

aggravated his psoriasis. 

By decision dated April 11, 2013, OWCP denied appellant’s claim that he sustained an 

emotional condition on December 18, 2012 in the performance of duty. It found that he had not 

established any compensable work factor related to the alleged December 18, 2012 incident. 

On May 1, 2013 appellant requested an oral hearing. An OWCP hearing representative 

attempted to hold a hearing on August 30, 2013; however, she stopped the hearing as a result of 

conduct by appellant and his representative that she found inappropriate. On September 24, 

2013 the Acting Chief of the Branch of Hearings & Review related that he had reassigned the 

case to another hearing representative and that appellant would receive a telephone hearing. On 

September 26, 2013 OWCP advised him that it had scheduled a telephone hearing for 12:00 p.m. 

on October 30, 2013. 

By decision dated November 13, 2013, OWCP found that appellant had abandoned his 

request for a hearing. It determined that he had not called in for the scheduled hearing or 

contacted OWCP to explain his failure to call for his hearing. 
5

On November 21, 2013 appellant questioned why OWCP separated his traumatic injury 

claim from his occupational disease claim.3

 

On February 19, 2014 appellant requested reconsideration. He questioned why OWCP 

had not considered the medical reports in denying his claim. Appellant contended that e-mails 

and FLRA documents showed that some incidents showing harassment and retaliation were 

witnessed by third parties. He listed the managers who had harassed him. Appellant asked that 

OWCP obtain information from the employing establishment regarding the incident between 

himself and Mr. England. He indicated that he had a “copy of the fact finding and it shows that 

Mr. England was acting on his own behalf and was not supposed to harass me or scold me in 

front of my fellow employees; rather he was to report any ‘suspicious’ behavior to my supervisor 

who knows my break time and my work projects.” Appellant referred OWCP to his Equal 

Employment Opportunity (EEO) claim for additional information. He contended that the 

employing establishment’s refusal to investigate the threat on his life was in retaliation. 

Appellant asserted that his traumatic injury claim and occupational disease claim should be 

considered together. He related that the employing establishment erred in requiring him to 

submit a SF-71 form and that it constituted “discrimination based on disability.” Appellant 

argued that, according to Board case law, the employee did not have the burden to show 

harassment by his supervisor but that the injury occurred as a result of his supervisor’s actions.4 

Appellant submitted a February 19, 2013 report of fact finding. The employing 

establishment noted that on December 18, 2012 Mr. England, the early manager, “was instructed 

by his manger Rachel Pennington to walk around the floors to determine if everyone is working 

as they should be. [He] is to report anything found to the respective manager.” Mr. England saw 

appellant talking at 6:15 a.m. on the 14th floor and again at 7:30 a.m. on the 15th floor. He asked 

appellant why he was not at his desk and appellant responded that he was on a break. 

Mr. England informed appellant that the other employees were “not on a break and that he 

should leave the area.” The employing establishment discussed appellant’s allegation that 

Mr. England followed him, did not know his break time, and acted in a disrespectful manner. It 

noted that witnesses indicated that Mr. England “may have singled [appellant] out because they 

do not recall [him] questioning other employees on any things.” Another coworker questioned 

why appellant was on break just after arriving at work. The witnesses indicated that Mr. England 

“showed that he was upset with [appellant] and spoke to [him] in a very disrespectful manner.” 

The employing establishment concluded that Mr. England was following the instructions of his 

supervisor and “conducting himself in accordance with those instructions.” It further found that 

some employees did not understand the role of managers and the scope of taking breaks and 

recommended informing all employees of scheduled lunches and breaks. 

By decision dated May 22, 2014, OWCP denied modification of its April 11, 2013 

decision. 

 3

 Appellant also alleged that the hearing representative’s conduct was not professional and argued that he should 

have more than two hours to present evidence. 

4

 Appellant cited Stanley Smith, 29 ECAB 652 (1978) and Lewis Leo Harms, 33 ECAB 897 (1982). The Board 

has long held, however, that appellant must factually establish the occurrence of any alleged harassment. See M.D., 

59 ECAB 211 (2007); James E. Norris, 52 ECAB 93 (2000). 
6

On appeal, appellant argues that his two claims should be considered together. He notes 

that in June 2014 the employing establishment removed him from employment. Appellant 

contends that he was disabled due to the employing establishment’s prohibited practices. 

LEGAL PRECEDENT -- FILE NOS. xxxxxx128 AND xxxxxx130 

Workers’ compensation law does not apply to each and every injury or illness that is 

somehow related to an employee’s employment. There are situations where an injury or an 

illness has some connection with the employment but nevertheless does not come within the 

concept or coverage of workers’ compensation. Where the disability results from an employee’s 

emotional reaction to his regular or specially assigned duties or to a requirement imposed by the 

employment, the disability comes within the coverage of FECA.5 On the other hand, the 

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold 

a particular position.6

Administrative and personnel matters, although generally related to the employee’s 

employment, are administrative functions of the employing establishment rather than the regular 

or specially assigned work duties of the employee and are not covered under FECA.7

 However, 

the Board has held that where the evidence establishes error or abuse on the part of the 

employing establishment in what would otherwise be an administrative matter, coverage will be 

afforded.8 In determining whether the employing establishment has erred or acted abusively, the 

Board will examine the factual evidence of record to determine whether the employing 

establishment acted reasonably.9

For harassment or discrimination to give rise to a compensable disability under FECA, 

there must be evidence introduced which establishes that the acts alleged or implicated by the 

employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not 

determinative of whether such harassment or discrimination occurred.10 A claimant must 

establish a factual basis for his or her allegations with probative and reliable evidence. 

Grievances and EEO complaints, by themselves, do not establish that workplace harassment or 

unfair treatment occurred.11 The issue is whether the claimant has submitted sufficient evidence 

under FECA to establish a factual basis for the claim by supporting his or her allegations with 

 5 Supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

6 Gregorio E. Conde, 52 ECAB 410 (2001). 

7 See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 

42 ECAB 556 (1991). 

8 See William H. Fortner, 49 ECAB 324 (1998). 

9 Ruth S. Johnson, 46 ECAB 237 (1994). 

10 See Michael Ewanichak, 48 ECAB 364 (1997). 

11 See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997). 
7

probative and reliable evidence.12 The primary reason for requiring factual evidence from the 

claimant in support of his or her allegations of stress in the workplace is to establish a basis in 

fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may 

be fully examined and evaluated by OWCP and the Board.13 

In cases involving emotional conditions, the Board has held that, when working 

conditions are alleged as factors in causing a condition or disability, OWCP, as part of its 

adjudicatory function, must make findings of fact regarding which working conditions are 

deemed compensable factors of employment and are to be considered by a physician when 

providing an opinion on causal relationship and which working conditions are not deemed 

factors of employment and may not be considered.14 If a claimant does implicate a factor of 

employment, OWCP should then determine whether the evidence of record substantiates that 

factor. When the matter asserted is a compensable factor of employment and the evidence of 

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of 

the medical evidence.15 

ANALYSIS -- FILE NOS. xxxxxx128 AND xxxxxx130 

Appellant filed an occupational disease claim alleging that he sustained migraines 

headaches, irritable bowel syndrome, GERD, and an aggravation of psoriasis due to stress in the 

performance of his federal employment. He also filed a traumatic injury claim for a stressrelated condition occurring on December 18, 2012. Before OWCP and on appeal, appellant 

asserted that both claims should be considered together. He attributed his stress-related 

condition to a result of a number of employment incidents and conditions. OWCP denied 

appellant’s emotional condition claims as he had not established any compensable employment 

factors. The Board must, therefore, review whether these alleged incidents and conditions of 

employment are compensable employment factors under the terms of FECA. The Board notes 

that appellant’s allegations do not pertain to his regular or specially assigned duties under 

Cutler.

16 Rather, he alleges error and abuse in administrative matters and harassment and 

discrimination by managers and coworkers. 

In Thomas D. McEuen,

17 the Board held that an employee’s emotional reaction to 

administrative actions or personnel matters taken by the employing establishment is not covered 

under FECA as such matters pertain to procedures and requirements of the employer and do not 

bear a direct relation to the work required of the employee. The Board noted, however, that 

coverage under FECA would attach if the facts surrounding the administrative or personnel 

action established error or abuse by employing establishment superiors in dealing with the 

 12 See James E. Norris, supra note 4. 

13 Beverly R. Jones, 55 ECAB 411 (2004). 

14 Dennis J. Balogh, 52 ECAB 232 (2001). 

15 Id.

16 See Lillian Cutler, supra note 5. 

17 See Thomas D. McEuen, supra note 7. 
8

claimant. Absent evidence of such error or abuse, the resulting emotional condition must be 

considered self-generated and not employment generated. In determining whether the employing 

establishment erred or acted abusively, the Board has examined whether the employing 

establishment acted reasonably.18

Appellant maintained that a supervisor, Mr. England, acted abusively in reprimanding 

him in front of coworkers on December 18, 2012 for talking instead of working. He maintained 

that Mr. England followed him from the 14th floor of the building to the 15th floor and told him 

that he was not on his break time. Appellant indicated that Mr. England was not his supervisor 

and that he acted disrespectfully. The Board notes that disciplinary actions are administrative 

functions of the employing establishment and not duties of the employee and, unless the 

evidence discloses error or abuse on the part of the employing establishment, not compensable 

employment factors.19 Mr. Harlan related that Mr. England twice walked by while he and 

appellant talked, and on the third time told appellant that he was not on an authorized break. He 

believed that Mr. England should not have criticized appellant as he was not his supervisor and 

as in the past there had been conversations without interruptions. Mr. Harlan related that it 

appeared that he was selecting appellant for discipline. 

In a February 19, 2013 fact finding report, the employing establishment found that 

Ms. Pennington had instructed Mr. England to walk around the floors, to make sure everyone 

was working, and to report problems to the relevant manager. Mr. England saw appellant talking 

at 6:15 a.m. on the 14th floor and at 7:30 a.m. on the 15th floor. The employing establishment 

determined that Ms. England was following the instructions of his supervisor and acting within 

the scope of the instructions. It further found that some employees did not understand the role of 

managers. Appellant has not provided sufficient evidence of error or abuse by Mr. England in 

telling him that he was not on break on December 18, 2012. 

Appellant further alleged that the employing establishment erred in requiring him to fill 

out a written form before requesting leave. Matters involving the use of leave are generally not 

considered compensable factors of employment as they are administrative functions of the 

employing establishment and not duties of the employee.20 Appellant has not submitted any 

evidence showing error or abuse by management in requiring him to complete a form when 

requesting leave and thus failed to establish a compensable employment factor. 

Appellant further alleged that he experienced harassment and discrimination from 

managers and coworkers in retaliation for filing an FLRA complaint. He maintained that on 

December 5, 2012 Ms. McDougle told him to watch his back as she knew people who could take 

care of him. Appellant also generally alleged that he experienced a hostile work environment. If 

disputes and incidents alleged as constituting harassment and discrimination by supervisors and 

coworkers are established as occurring and arising from the employee’s performance of his 

 18 See Richard J. Dube, 42 ECAB 916 (1991). 

19 See Lori A. Facey, 55 ECAB 217 (2004). 

20 See V.W., 58 ECAB 428 (2007); Judy L. Kahn, 53 ECAB 321 (2002). 
9

regular duties, these could constitute employment factors.21 The evidence, however, must 

establish that the incidents of harassment or discrimination occurred as alleged to give rise to a 

compensable disability under FECA.22 On February 11, 2013 Mr. Vallejos advised appellant 

that there was no evidence that anyone threatened him on December 4, 2012 and found that 

matter closed pending new evidence or witness statements. Appellant did not submit any factual 

evidence in support of his allegations and thus failed to establish the factual basis of this 

allegation. 

Appellant also maintained that on December 12, 2012 Mr. England spoke to him in a 

disrespectful manner when telling him that he was not on break. Verbal altercations and difficult 

relationships with supervisors, when sufficiently detailed by the claimant and supported by the 

record, may constitute factors of employment. This does not imply, however, that every 

statement uttered in the workplace will give rise to coverage under FECA.23 In the February 19, 

2013 report of fact finding, the employing establishment noted that some witnesses indicated that 

Mr. England acted upset and spoke disrespectfully. A raised voice in the course of employment 

does not, in and of itself, warrant a finding of verbal abuse.24 Appellant has not described what 

Mr. England stated or explained why it would rise to the level of verbal abuse and thus has not 

established a compensable work factor. 

The Board finds that appellant has not met his burden of proof to establish a compensable 

work factor in either his December 19, 2012 occupational disease claim or his claim for a 

traumatic injury occurring on December 18, 2012.25

On appeal, appellant contends that he was disabled due to the employing establishment’s 

prohibited practices. He has the burden of proof, however, to submit evidence supporting that he 

sustained an emotional condition in the performance of duty.26 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established an emotional condition in the 

performance of duty and has not established an emotional condition on December 18, 2012 in the 

performance of duty. 

 21 Janice I. Moore, 53 ECAB 777 (2002). 

22 Id. 

23 Marguerite J. Toland, 52 ECAB 294 (2001). 

24 P.D., Docket No. 13-1142 (issued August 16, 2013); Karen K. Levene, 54 ECAB 671 (2003). 

25 As appellant has not established any compensable employment factors, the Board need not consider the medical 

evidence of record; see Hasty P. Foreman, 54 ECAB 427 (2003). 

26 See Pamela D. Casey, 57 ECAB 260 (2005). 
10

ORDER 

IT IS HEREBY ORDERED THAT the May 22, 2014 decisions of the Office of 

Workers’ Compensation Programs are affirmed. 

Issued: April 20, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board