United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Jacksonville, FL, Employer 

__________________________________________ 

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Docket No. 14-854 

Issued: November 14, 2014 

Appearances: Case Submitted on the Record

Debra Hauser, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 5, 2014 appellant, through counsel, filed a timely appeal of a November 13, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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. 

ISSUE 

The issue is whether appellant established an emotional condition in the performance of 

duty. 

On appeal counsel argues that appellant has established compensable factors of 

employment and that his condition was causally related to those factors. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 31, 2013 appellant, then a 47-year-old supervisor air traffic control specialist, 

filed an occupational disease claim alleging that on September 16, 2012 he first realized that his 

post-traumatic stress disorder had been aggravated by his excessive workload and stress from his 

work duties.2

 He submitted a report from Dr. Naomi I. Jacobs, a licensed clinical psychologist, 

who noted appellant’s concern of Hispanic hostility and attempts to fire him. Dr. Jacobs 

specifically noted an event on June 5, 2012. She determined that appellant suffered from an 

aggravation of post-traumatic disorder stemming originally from the June 5, 2012 incident. 

By correspondence dated April 12, 2013, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. Appellant was advised as to the medical and 

factual evidence required to support his emotional condition claim. OWCP gave him 30 days to 

provide this information. 

In response to OWCP’s request, appellant submitted medical and factual evidence. 

In a July 3, 2012 statement for his CA-1 form, appellant discussed the June 5, 2012 

incident. Rick Garreau, manager, and Robert Christian, security officer, entered his office to 

confiscate his computer. Appellant was told to not touch anything and back away from the 

computer. He was given no reason for the confiscation of his computer even after asking why 

this occurred, nor was he even allowed to copy files or work. As a result of this incident, 

appellant alleged that he was humiliated and that his peers questioned his integrity and 

truthfulness. 

Appellant believed that on December 16, 2011 Richard Belmonte, the manager at the 

regional office, with no investigation, had ordered his bosses to fire him, which they refused to 

do without grounds or investigation. He alleged that, since his computer was confiscated, he has 

lost credibility as a manager and is “questioned like a criminal.” Appellant also alleged that 

since June 5, 2012 he has suffered from headaches and stress. He believed there was a hostile 

work environment for Hispanics. Appellant alleged retaliation as he is “a lead member” of the 

group of Hispanic managers. He alleged that the June 5, 2012 incident was “a direct attack on 

my credibility as a manager and person.” 

An undated and unsigned statement from Jose Garcia, appellant’s first-line manager, 

confirmed these actions occurred and noted that Mr. Belmont had initiated these actions. He also 

noted a Hispanic harassment. 

In an August 15, 2012 statement, appellant noted that he finally learned that his computer 

had been confiscated because there had been an allegation that he was running a personal 

business from his work computer. He stated that he felt angry and stressed when the security 

investigator came to question him unexpectedly. According to appellant, he had no time to call 

an attorney or otherwise prepare for the questioning by the security investigator. He related that 

he was questioned about owning a business. Appellant stated that he could not understand why 

the employing establishment did not simply verify whether a business existed in his name instead 

 2

 Appellant stopped work on September 24, 2012. 
3

of allowing his computer to be taken. He alleged that the investigation verified that he had done 

nothing wrong, and in his opinion was wasteful and harassing, was a planned attack to cause him 

pain and to harass Hispanics in management. Appellant stated that he refused to provide his 

eBay username and denied owning a business, being a car dealer or being licensed. He stated 

that he felt that requesting his eBay user name was a violation of his privacy which was why he 

refused to provide it to the investigator. Appellant alleged harassment due to the investigator 

requesting that he attest that he provided truthful information when he was not advised that he 

was being under oath regarding his statements. In concluding, he alleged that he had been 

harassed everyday “with no justification or understanding” and that this was an organized effort 

to eliminate Hispanics from management at the employing establishment. 

On April 15, 2013 OWCP received an undated statement from appellant detailing the 

employment factors he believed contributed to his condition including a history. Appellant 

stated that on September 16, 2012 he suffered an anxiety attack and severe headache due to the 

increased complexities of the air traffic. He stated that he began to question whether the 

decisions he made were erroneous and based on fear. Appellant alleged that his work stress 

caused his headaches. He stated that he was the overseeing manager for the Traffic Management 

Unit and that he was “responsible for managing all air traffic traversing the air traffic control 

facility. On September 16, 2012 appellant was responsible for directing the route approvals and 

amendments as well as tactical plans for the management of all traffic on my shift. The 

responsibility from this caused his headache and anxiety attack. Appellant alleged that as a 

result of his anxiety he “could not think clearly nor make sound operational decisions.” He came 

to the realization that he could not finish the shift and could not return the next day. Appellant 

has not returned to the position since September 24, 2012. 

In an undated report, Dr. Kristina F. DeMatas, a treating Board-certified family medicine 

practitioner, reported that appellant was seen for his annual examination. Appellant related that 

his computer had been confiscated on June 5, 2012 and that he had been accused of running a 

business at work. He stated that the accusation was untrue and he was experiencing a lot of 

stress due to the investigation, answering questions about the investigation and defending 

himself. In June 2012, appellant noted that he began having moderate-to-severe headaches at 

work which coincided with the confiscation of his computer and resulting investigation. 

Dr. DeMatas provided physical examination findings and medical history. She diagnosed a 

tension-type headache and stress-related anxiety versus adjustment disorder. Dr. DeMatas 

attributed appellant’s condition to a stressful work environment. 

In a follow-up visit on October 3, 2012, Dr. DeMatas related that over the past four 

months appellant has experienced severe headaches at work one to two days per week. She 

indicated that since September 24, 2012 he has been off work. Appellant related that his 

headaches were better when he was not working. He requested a note to justify his time off from 

work. 

In an October 22, 2012 note, Dr. Monique Bosque-Perez, a treating osteopath, opined that 

appellant’s anxiety and headaches “may be directly related and exacerbated by his stressful” air 

traffic control employment. She indicated that he was totally disabled until he can get these 

conditions under control. 
4

Robin Badger, an air traffic control manager, reviewed appellant’s report of investigation 

and advised the employing establishment’s labor and employee relations specialist that appellant 

had denied everything in his statement but there was evidence that he was selling cars on eBay. 

She noted his hard drive showed over 1,200 photographs of cars, there were 89,893 hits on his 

personal website and 424,779 hits on his personal e-mail account. Based on this evidence, 

Ms. Badger concluded that there was more than incidental use and provided recommendations 

for discipline. 

In a November 14, 2012 report, Dr. Jacobs, a licensed clinical psychologist, reported 

meeting appellant for an evaluation on November 12, 2012. She opined that his post-traumatic 

stress disorder had been aggravated by a hostile work environment and discrimination towards 

Hispanics. 

In a May 8, 2013 report, Dr. Jacobs diagnosed post-traumatic stress disorder, anxiety and 

stress headaches due to a hostile and threatening work environment. The threatening work 

environment included incidents of harassment and bullying towards Hispanics, the attempt by 

Mr. Belmont to terminate appellant’s employment, the confiscation of appellant’s computer on 

June 5, 2012, his feeling of humiliation because of the confiscation, his feeling of being 

disrespected in the control room, being interrogated on August 15, 2012 with no prior notice or 

opportunity to have an attorney present. On September 16, 2012 appellant alleged that he felt 

unable to perform his job duties “due to a significant loss of self-confidence, shame, poor 

concentration, severe anxiety and headaches.” In concluding, Dr. Jacobs stated that appellant 

has suffered from post-traumatic stress disorder since June 5, 2012 and that the condition has 

been aggravated by his attempts to perform his job duties. 

On May 6, 2013 appellant provided information to support his argument regarding a 

hostile work environment by noting the lack of Hispanics hired at the employing establishment 

and Hispanic inclusion in management. 

Dr. Jacobs, in a May 8, 2013 Work Capacity Evaluation Psychiatric/Psychological 

Conditions (Form OWCP-5a), indicated that appellant was totally disabled from working due to 

his psychiatric condition. He stated that appellant’s post-traumatic stress disorder was 

aggravated by his work at the employing establishment. Symptoms of appellant’s condition 

included hypervigilance, high anxiety, loss of confidence, headaches, poor concentration, shame 

and intrusive memories. Dr. Jacobs opined that the symptoms were “too severe and easily 

triggered by stimuli associated with” appellant’s work. 

In a May 21, 2013 memorandum, Ms. Badger responded to appellant’s occupational 

disease claim. She challenged the claim for benefits. Ms. Badger stated that on July 18, 2010 

appellant had received a temporary promotion where his responsibilities included directing and 

planning operations in the Traffic Management Unit and providing first-line supervision to 

supervisors on the floor, supervisory coordinators in the traffic management unit and second-line 

supervision to traffic management coordinator and air traffic control specialists. Appellant’s 

position was made permanent on July 17, 2011. Ms. Badger stated that no changes were made in 

either appellant’s workload or position description from his temporary appointment on July 18, 

2010 until he stopped working on September 24, 2012 nor was he assigned any additional duties 

or more complex work. She noted that there had been an investigation in January 2012 into 
5

allegations of discrimination and as a result of the investigation there was one reassignment. 

Actions were taken to ensure a workplace free of discrimination. With respect to the June 5, 

2012 computer confiscation incident, Ms. Badger noted that it occurred as the result of a hotline 

complaint that appellant “was using his FAA [Federal Aviation Administration] computer to 

conduct personal business.” She stated that the investigation and scanning of his computer 

revealed violations of the Agency’s Standards of Conduct, but that no disciplinary action had 

been taken against him as a result of these violations due to his decision to retire. Ms. Badger 

also noted that the person who would have prepared the disciplinary action was out for several 

weeks due to an accident. She claimed that appellant’s claim for wage-loss compensation was 

based solely on his reaction to administrative actions and therefore not compensable. 

Ms. Badger sent appellant a letter dated October 24, 2012, requesting medical 

documentation for his absence from work. The letter advised appellant that a failure to provide 

the documentation would result in being charged as absent without leave. Appellant responded 

to Ms. Badger’s letter on October 24, 2013 explaining his absence and provided dates of his 

doctor appointments. 

By decision dated June 25, 2013, OWCP denied appellant’s claim because he had failed 

to establish any compensable factors of employment. 

Subsequent to that decision, OWCP received a copy of a September 25, 2012 e-mail from 

appellant to Ms. Badger regarding his inability to work and Ms. Badger’s response. Appellant 

related that he has had more consistent and increased anxiety and headaches, which improves 

when he is not at work. He alleged that nothing was being done to stop the harassment which is 

why his absence from work is indefinite. 

Ms. Badger stated that she did not condone unprofessional behavior such as harassment 

in the workplace, but that appellant should provide specifics regarding the alleged 

behavior/actions, nature of behavior/action and individuals involved in the alleged inappropriate 

behavior. 

On July 11, 2013 appellant requested a review of the written record by an OWCP hearing 

representative. 

By decision dated November 13, 2013, an OWCP hearing representative affirmed the 

denial of appellant’s claim.3

LEGAL PRECEDENT 

To establish a claim that he or she sustained an emotional condition in the performance of 

duty, an employee must submit the following: (1) medical evidence establishing that he or she 

has an emotional or psychiatric disorder; (2) factual evidence identifying employment factors or 

 3

 OWCP’s hearing representative noted that appellant had filed two previous claims for stress and post-traumatic 

stress. She noted that under OWCP File No. xxxxxx327 appellant alleged stress due to overwork with an injury date 

of May 26, 2000. Under OWCP File No. xxxxxx656 appellant alleged post-traumatic stress disorder due to an 

excessive workload with an injury date of June 5, 2012. Neither claim has been accepted by OWCP. 
6

incidents alleged to have caused or contributed to his or her condition; and (3) rationalized 

medical opinion evidence establishing that the identified compensable employment factors are 

causally related to his or her emotional condition.4

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

somehow related to an employee’s employment.5 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.6

 Where the disability results from an 

employee’s emotional reaction to his or her regular or specially assigned duties or to a 

requirement imposed by the employment, the disability comes within the coverage of FECA.7

 

On the other hand, the disability is not covered where it results from such factors as an 

employee’s fear of a reduction-in-force or his or her frustration from not being permitted to work 

in a particular environment or to hold a particular position.8

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

employment, are administrative functions of the employer rather than the regular or specially 

assigned work duties of the employee and are not covered under FECA.9

 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.10 

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.11

The Board has held that the manner in which a supervisor exercises his or her discretion 

falls outside the coverage of FECA. This principal recognizes that a supervisor or manager must 

be allowed to perform their duties and that employee’s will, at times, disagree with actions taken. 

Mere disagreement with or dislike of actions taken by a supervisor or manager will not be 

compensable absent evidence establishing error or abuse.12 Although the handling of leave 

 4 V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990). 

5 L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006). 

6 A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005). 

7

 5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

8 J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001). 

9 See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 

ECAB 556 (1991). 

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

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

12 S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401 (2004). 
7

requests and attendance matters are generally related to employment, they are administrative 

matters and not a duty of the employee.13 

For harassment or discrimination to give rise to a compensable disability, there must be 

evidence which establishes that the acts alleged or implicated by the employee did, in fact, 

occur.

14 Mere perceptions of harassment or discrimination are not compensable under FECA.15 

A claimant must substantiate allegations of harassment or discrimination with probative and 

reliable evidence.16 Unsubstantiated allegations of harassment or discrimination are not 

determinative of whether such harassment or discrimination occurred.17 A claimant must 

establish a factual basis for his or her allegations of harassment or discrimination with probative 

and reliable evidence.18 

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.19 If a claimant does implicate a factor of 

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

factor.20 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.21

ANALYSIS 

Appellant alleged that he sustained an emotional condition as a result of a number of 

employment incidents and conditions. OWCP denied his emotional condition claim for failing to 

establish any compensable work factors. The Board must, therefore, initially review whether 

these alleged incidents and conditions of employment are covered employment factors under 

FECA. 

 13 C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, 57 ECAB 611 (2006). 

14 K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 5. 

15 M.D., 59 ECAB 211 (2007); Robert Breeden, supra note 5. 

16 J.F., supra note 8; Robert Breeden, supra note 5. 

17 G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C. 

Owens, 54 ECAB 684 (2003). 

18 Robert Breeden; supra note 5; Beverly R. Jones, 55 ECAB 411 (2004). 

19 D.L., 58 ECAB 217 (2006); Jeral R. Gray, supra note 13. 

20 K.W., supra note 14; David C. Lindsey, Jr., 56 ECAB 263 (2005). 

21 Robert Breeden, supra note 5. 
8

Appellant contended that he was subjected to harassment and discrimination due to his 

Hispanic origin. Actions of a claimant’s supervisor which the claimant characterizes as 

harassment may constitute a compensable factor of employment. However, for harassment to 

give rise to a compensable disability under FECA, there must be evidence that harassment or 

discrimination did occur. Mere perceptions or feelings of harassment do not constitute a 

compensable factor of employment.22 An employee’s allegations that he or she was harassed or 

discriminated against is not determinative of whether or not harassment or discrimination 

occurred.23 To establish entitlement to benefits, a claimant must establish a factual basis for his 

or her claim by supporting his or her allegations with probative and reliable evidence.24 

Appellant failed to establish that his supervisors or coworkers threatened or verbally 

abused him based on his race, religion or ethnicity. He only provided general allegations of 

harassment or discrimination based on his being Hispanic. None of appellant’s statements 

provide details regarding specific instances or allegations of discrimination. He also alleged a 

hostile work environment based on the low number of Hispanics hired at the employing 

establishment and Hispanic inclusion in management. The record contains allegations that the 

employing establishment discriminated against Hispanics but no details were provided regarding 

any specific incidents involving appellant or any other Hispanic employee. The employing 

establishment acknowledged previous allegations of discrimination where one person was 

reassigned but provided no further information. Appellant did not provide evidence to 

substantiate his allegations of harassment, discrimination or a hostile work environment.25 

Accordingly, he has not established his allegations that he was harassed, mistreated, verbally 

abused or discriminated against by his supervisors or coworkers. 

Appellant contended that management engaged in an improper investigation by removing 

his government computer and by conducting an interrogation on August 15, 2012. Although the 

handling of disciplinary actions and internal investigations are generally related to the 

employment, they are administrative functions of the employer and not duties of the employee.26 

In Thomas D. McEuen,

27 the Board held that an employee’s emotional reaction to administrative 

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 

of the work required of the employee. The Board noted, however, that coverage under FECA 

would attach if the factual circumstances regarding the administrative or personnel action 

established error or abuse by the employing establishment supervisor in dealing with the 

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

 22 G.S., supra note 17; J.C., 58 ECAB 594 (2007); Robert G. Burns, 57 ECAB 657 (2006). 

23 See C.T., Docket No. 08-216 (issued May 7, 2009); K.W., supra note 14; Ronald K. Jablanski, supra note 17. 

24 See G.S., supra note 17; C.S., 58 ECAB 137 (2006); Frankie McDowell, 44 ECAB 522 (1993); Ruthie M. 

Evans, 41 ECAB 416 (1990). 

25 See G.S., supra note 17; Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must 

substantiate allegations of harassment or discrimination with probative and reliable evidence). 

26 J.F., supra note 8; Jeral R. Gray, supra note 13; Jimmy B. Copeland, 43 ECAB 339 (1991). 

27 Supra note 9. 
9

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.28

Appellant has not submitted sufficient evidence to show that his managers acted 

unreasonably in confiscating his computer or the interrogation. The confiscation of his computer 

and subsequent interrogation on August 15, 2012 were based on a hotline tip that he was 

conducting a personal eBay business during the time he was at work. Appellant has not shown 

that management’s actions in connection with its investigation or confiscation of his computer 

were unreasonable. In an October 15, 2012 memorandum, Ms. Badger noted that a forensic 

report of his hard drive supported the allegation that appellant was conducting an eBay business 

while at work. The evidence does not establish that the employing establishment erred in these 

circumstances. Appellant presented no corroborating evidence to support that the employing 

establishment acted unreasonably in these matters. The employing establishment provided a 

reasonable explanation for its actions. Appellant has not established a compensable employment 

factor under FECA with respect to the investigation or confiscation of his computer. 

Appellant contended that his anxiety and headaches were caused by overwork. He 

alleged an excessive workload and stress from performing his duties. In addition, appellant 

attributed his anxiety and headaches to the stress and increased responsibility due to managing 

people on and off the clock and managing air traffic. The Board has held that overwork may be 

a compensable factor of employment.29 The Board finds, however, that appellant made only 

general allegations of overwork that are nonspecific and not supported by the evidence of record. 

The employing establishment denied that there had been any change in his responsibilities from 

July 18, 2010 until September 24, 2012, when he stopped working. However, appellant has not 

identified how he was overworked or provided any evidence supporting his allegation of either 

overwork or an excessive workload. He has not submitted sufficient evidence supporting his 

allegation of an excessive workload or overwork. The Board, therefore, finds that appellant has 

failed to establish a compensable factor under Cutler.

30

Consequently, the Board finds that appellant has not established any compensable 

employment factors.31

On appeal appellant’s counsel argues that appellant’s duties as an air traffic controller 

were directly responsible for his emotional condition. He also argues that all elements of 

entitlement under FECA have been met and thus, OWCP erred in denying his emotional 

condition claim. As discussed above, appellant failed to establish any compensable factor of 

 28 See S.M., supra note 12; David C. Lindsey, Jr., supra note 20; Richard J. Dube, 42 ECAB 916 (1991); 

Thomas D. McEuen, supra note 9. 

29 Peter D. Butt Jr., 56 ECAB 117 (2004); Bobbie D. Daly, 53 ECAB 691 (2002). 

30 Supra note 7. 

31 As appellant has failed to establish a compensable employment factor, the Board need not address the medical 

evidence of record. See L.K., Docket No. 08-849 (issued June 23, 2009); V.W., supra note 4; Alberta Dukes, 56 

ECAB 247 (2005); Margaret S. Krzycki, 43 ECAB 496 (1992). 
10

employment with respect to his allegations. He submitted no supporting factual evidence 

supporting his allegations and thus, he has not met his burden of proof to establish any 

compensable factors of employment. 

CONCLUSION 

The Board finds that the evidence fails to establish that appellant sustained an emotional 

condition in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 13, 2013 is affirmed. 

Issued: November 14, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board