United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.T., Appellant 

and 

U.S. POSTAL SERVICE,PROCESSING & 

DISTRIBUTION CENTER, Long Beach, CA, 

Employer 

__________________________________________ 

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Docket No. 13-1665 

Issued: September 12, 2014 

Appearances: Case Submitted on the Record

William H. Brawner, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 3, 2013 appellant, through her attorney, filed a timely appeal from a March 8, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied 

her emotional condition claim. 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 sustained an emotional condition in the performance of 

duty. 

FACTUAL HISTORY 

On June 21, 2011 appellant, then a 40-year-old maintenance support clerk, filed an 

occupational disease claim alleging that she developed an emotional condition in the 

 1

 5 U.S.C. § 8101 et seq. 
2

performance of duty. She alleged that she first became aware of her condition, and first realized 

it was work related, on November 1, 2010. 

Appellant explained that she was subjected to sexual harassment and discrimination by 

her immediate supervisor, Donald Logsdon. She added that other managers either encouraged 

his behavior or failed to properly intercede. Appellant’s allegations included the following: 

 B.J. Williams, a custodian, started a rumor in November 2003 that she had sex in the 

women’s restroom with three black men. She worked as a custodian at the time and 

had to interact with Mr. Williams frequently. He and another coworker, Ernest Paul, 

would call her a “bitch” or “whore” in passing. 

 Mr. Williams, as an acting supervisor, talked negatively about her during a safety 

meeting, with encouragement from a supervisor. She filed an Equal Employment 

Opportunity (EEO) complaint, which resulted in a settlement that she was not to be 

negatively discussed during any stand-up talk. 

 In 2006 Mr. Williams demanded to be detailed to the Tool and Parts Office, where 

she worked. She complained that she was unable to work with him, after all that 

happened. Mr. Williams was later transferred. 

 Mr. Logsdon became appellant’s supervisor in 2006. Beginning in 2007, he made 

suggestive comments to her and would frequently leer at her body or raise his 

eyebrows suggestively. This persisted almost daily, making her extremely 

uncomfortable in his presence and afraid of her job. 

 After she filed her EEO complaint, Mr. Logsdon gave her a special assignment 

outside of her normal responsibilities and job description. She felt that this 

constituted retaliation. 

 In January 2009, before she was about to leave for a vacation with coworker José 

Martinez, Mr. Logsdon and a male coworker, Jun Versoza, crudely teased her about 

the vacation, making rude and suggestive comments about her private activities with 

men. This pattern continued every time she went on vacation. 

 In July 2009 she requested a change in schedule to accommodate a vacation. On 

July 21, 2009 Mr. Logsdon sent her an e-mail asking if she was planning to join Rito 

Palencia in the Philippines. Mr. Palencia was a married coworker with whom 

appellant had no relationship outside of work. She asked Mr. Logsdon to stop 

discussing her personal life. He made several rude, extremely explicit and suggestive 

sexual innuendos forecasting her private activities with men. 

 On August 4, 2009 Mr. Versoza made several snide sexual innuendos to her, echoing 

almost the same langue that Mr. Logsdon had used earlier concerning her private 

relationship with Mr. Martinez. Mr. Logsdon was present and did nothing to stop 

these comments. She asked him to intervene, but he shrugged and walked away with 

a laugh. 
3

 In December 2009 Mr. Logsdon posted a holiday schedule with the following 

comment next to appellant’s name: “Enjoy your Sat off ho, ho, ho.” She felt this 

referred to her as a “ho” or whore. She confronted him, and he did not deny it or 

apologize, and he did not change the posting or take it down. 

 On December 15, 2009 after she returned from vacation, Mr. Logsdon again made 

snide comments about her love life. He told her she should change her last name to 

Martinez to redeem herself. 

 On February 3, 2010 after returning from a week off, a coworker told her that 

Mr. Logsdon and Mr. Versoza had discussed her relationship with Mr. Martinez in a 

loud, rude and suggestive manner clearly intended to be overheard by others. Tommy 

Grayson was present and heard these comments. The coworker added that 

Mr. Logsdon did this every time appellant went on vacation. 

 On March 30, 2010 she told Mr. Logsdon that she was upset with Mr. Versoza and 

asked Mr. Logsdon to control his behavior. Mr. Logsdon called her a “Latina 

Elizabeth Taylor.” She asked for an apology, but he did not offer one. 

 In September 2010 Lorenzo Carter, a supervisor, told Mr. Martinez that appellant was 

being discussed in a maintenance manager’s meeting. Shelly Weir, a supervisor, had 

commented on statements made by Mr. Logsdon about whether appellant was having 

an affair or was Mr. Martinez’s girlfriend. 

 Following this meeting, Ms. Weir denied leave requests and work schedule requests 

from appellant and Mr. Martinez, while approving similar requests from other 

employees. Mr. Carter informed Mr. Martinez that Mr. Logsdon had instructed him 

to deny the requests due to his relationship with appellant. Appellant argued that the 

selective denial was error or abuse and a way to target her. When she temporarily 

worked for another manager, she had no trouble getting leave requests or schedule 

changes approved. 

 In October 2010 Mr. Logsdon refused to furnish Family Medical and Leave Act 

(FMLA) forms when she requested them. After she advised that he was required to 

provide, she received them in the mail. She felt this was retaliation. 

 On October 10, 2010 Mr. Logsdon loudly and angrily chastised her regarding her 

FMLA absences, as witnessed by Jacqueline Jeffrey and Mr. Versoza. 

 After an EEO meeting with a counselor on October 28, 2010, the counselor advised 

that Mr. Logsdon be removed from the office or at least separated from appellant, but 

the counselor’s advice was not followed. 

 In late 2010 appellant attempted to obtain a restraining order against Mr. Logsdon. A 

postal service attorney, Joanna Hull, intervened and moved to dismiss the complaint 

on the grounds that Mr. Logsdon had immunity because this happened at work. The 

attorney called appellant at home and told her she could not win the complaint, and 

that if she sought EEO relief or a restraining order against her supervisor, she would 
4

lose her job. Appellant withdrew her request for a restraining order for fear of losing 

her job. 

 On February 9, 2011 appellant agreed to a settlement that would have resulted in a 

transfer away from Mr. Logsdon and would have ended the harassment, but the 

settlement was not approved. Mr. Logsdon, who had been off work due to an injury, 

returned to his regular position on February 14, 2011, and Supervisor Tracey Jones 

refused to assign appellant to a different supervisor. Instead, Mr. Jones moved 

Mr. Logsdon to a location close to appellant, where she would have daily contact with 

him. 

 During a meeting called to settle a union grievance for a contractual violation, a 

postal service attorney, Ayesha Mahapatra, repeatedly badgered appellant to drop her 

EEO complaint without first giving notice to appellant’s attorney, even though the 

employing establishment was fully aware the claimant was represented by counsel. 

Appellant filed an ethics complaint with the California Bar Association. 

 Supervisor Logsdon refused to approve appellant’s request for holiday hours on 

Columbus Day and Veterans Day following the filing of her EEO complaint. 

Appellant felt this was retaliation, as this had been approved in the past. 

Mr. Martinez submitted a statement alleging the following: 

 On February 3, 2010 Mr. Logsdon approached him and rudely asked if he and 

appellant were having an affair. 

 On October 28, 2010 he and appellant met with Supervisor Jones to discuss 

appellant’s EEO complaint. Appellant showed Mr. Jones an e-mail that illustrated 

Mr. Logsdon’s inappropriate behavior. Although Mr. Jones indicated that 

Mr. Logsdon would be removed from the office, it never occurred. 

Mr. Logsdon provided a statement addressing the following: 

 Appellant was not given extra work in retaliation for her EEO complaint. She and 

other employees were assigned the task based on operational needs. 

 He denied making inappropriate comments, gestures or advances to appellant. He 

stated it was the other way around. In May or June 2009, appellant came to his office 

and said, “I can get anything I want from any man except you,” to which he replied 

that he followed the rules to be fair to all employees. In June 2010 she asked him if 

he would date anyone in the post office. He replied he never would. 

 Appellant shared numerous details about her personal life. While on vacation by the 

pool with her then-husband, she called Mr. Versoza at work. She told how she sweet 

talked an inspector to get some items passed when her home was under repair. She 

talked about flirting with a representative to get reduced electrical rates. She once 

came back from a trip with a picture of her sitting on a boulder and said, “See, Jun, I 

got bigger balls than you.” Many times she said she wanted to go to the Philippines 
5

with Mr. Versoza. He would reply, “Good, then I can sell you.” When Mr. Palencia 

said he was going to the Philippines, Mr. Versoza told appellant she could go with 

him. Appellant never indicated she was being harassed or felt uncomfortable due to 

these statements. Mr. Logsdon saw nothing inappropriate, as she and Mr. Versoza 

teased each other for months about the Philippines. 

 He denied harassing or retaliating against appellant. He would not risk his job by 

violating the policy prohibiting retaliation. He denied gossiping about appellant when 

she was on vacation or making snide remarks about her love life. Appellant made 

such remarks, however. She used to tell Mr. Versoza that she had his balls hanging 

on a chandelier in her bedroom. 

 He has never seen the e-mail that appellant alleges she has from him. 

 He denied that the “ho ho ho” comment was meant to harass appellant. He explained 

that this was the last schedule of the year, and appellant had pleaded and begged for 

the day off. Another coworker agreed to cover the shift. Since it was almost 

Christmas, he added “ho ho ho.” He argued that appellant falsely portrayed this as an 

insult. She never questioned the comment at the time. 

 He had a meeting with appellant and Mr. Versoza concerning a dispute whether 

people were talking about appellant while she was on vacation with Mr. Martinez. 

She accused Mr. Versoza. He called her a liar. Mr. Logsdon indicated that the 

possibility of appellant and Mr. Martinez taking vacation together was discussed. He 

stated to appellant: “We just don’t want to see you do a Liz Taylor on us.” She asked 

what that meant. He explained that Elizabeth Taylor had gotten married and divorced 

several times. When she said she resented the comment, he apologized and said he 

would never do it again. An hour later, she and Mr. Versoza were talking like 

nothing happened. 

 On October 28, 2010 Supervisor Jones advised that appellant had made charges of 

sexual harassment. After an interview, Mr. Jones let Mr. Logsdon work in his office. 

 Supervisor Jones stopped approving revised schedules for appellant in late July or 

early August 2010 because there was no justification for it, except that appellant 

wanted to carpool. Appellant begged, but he explained he could not justify it. She 

went to Supervisor Jones, but he left it up to Mr. Logsdon. Mr. Martinez asked for 

the approval several times. He explained he and appellant were married and asked if 

Mr. Logsdon would help out a married couple. Mr. Logsdon explained that the only 

way he could approve a schedule revision was if appellant had a special reason, like a 

project, to come in early. At a manager meeting, Mr. Logsdon was advised that 

carpooling was not sufficient justification for a revised schedule. Someone asked if 

they were dating, and Mr. Logsdon advised that Mr. Martinez said they were married. 

This someone added he did not know why temporary supervisors had approved any 

revised schedules, as Mr. Jones had instructed not to approve long-term schedule 

revisions. 
6

 Appellant did not request FMLA leave. She requested sick leave three consecutive 

weeks, each time placing her request on his desk when he was out of the office. He 

told her that he was submitting the requests under FMLA because it appeared to be an 

ongoing situation. She approved and after receiving an FMLA number asked to have 

all her slips changed to FMLA. 

Addressing the written statement of Mr. Martinez, Mr. Logsdon alleged the 

following: 

 He did not encourage people to gossip about appellant while she was on vacation. A 

couple of times he heard someone ask if appellant and Mr. Martinez were off work at 

the same time. That was all he heard, so there was nothing to stop. 

 He denied saying that appellant was a loose woman or a Latina Elizabeth Taylor. 

 He did not inquire about the relationship between appellant and Mr. Martinez on 

February 3, 2010. 

 He confirmed that he was removed from his work area for an investigative interview 

with Mr. Jones. When he returned to work, he was placed in another office to review 

videos on harassment. He also had a discussion with Mr. Jones about policies on 

harassment. 

Supervisor Jones provided a statement alleging the following: 

 Mr. Williams and Mr. Paul denied appellant’s allegations of harassment. They were 

instructed not to speak or look at appellant, not to speak about her to coworkers, and 

to avoid unnecessary contact with her. 

 Mr. Williams asked that appellant not take lunch in the north end of the building, 

where he worked. 

 In 2006 Mr. Williams requested a detail to the Tool and Parts Office because of racial 

discrimination. His request was denied. 

 Appellant reported no further incidents with Mr. Williams. As recently as 

November 2010, appellant stated everything was fine with Mr. Williams. 

 Appellant’s special assignment was within her regular duties, and no overtime was 

required. 

 In 2009 and 2010 management changed the start time of a large number of 

employees. Some, including appellant, asked for revised schedules. All requests 

were denied. A temporary manager approved some revised schedules for appellant 

that he believed were temporary requests; he had no knowledge of prior requests. 

 Appellant made no complaint about Mr. Logsdon to Supervisor Jones prior to 

October 28, 2012, following the denial of one of her requests for a schedule revision. 
7

 When appellant complained on October 28, 2010 that Mr. Logsdon was harassing 

her, Mr. Jones moved him to another location pending an investigation. When 

appellant still complained that they shared a printer, she was given a printer in 

another location. Mr. Jones stated that he did not ignore the advice of the EEO 

counselor to separate appellant and Mr. Logsdon. 

 The only statements received in the investigation were from appellant and 

Mr. Martinez. Appellant submitted no other pertinent information. Appellant was 

advised that the investigation had found that Mr. Logsdon’s actions were not 

considered harassment and that he would be returning to his position when he 

recovered from an injury. 

 On February 9, 2011 appellant asked to be transferred to a different supervisor. This 

request was denied, as management determined it would be too disruptive and too 

destructive to Mr. Logsdon. 

 At a meeting that same day, employing establishment Attorney Mahapatra made it 

clear to appellant that she had the right to discuss the meeting with her 

representatives. Appellant’s union representative was at the meeting, and she did not 

mention that she had another representative. 

Appellant responded to the statements of Mr. Logsdon and Mr. Jones as follows: 

 Emails from Jacqueline Jeffrey proved that she was not being treated fairly with work 

assignments. 

 Brian Moyer proved that Mr. Jones took steps that forced her to interact with 

Mr. Logsdon, such as using a printer in front of her office. 

 The letter of warning from the California State Bar Association had confirmed the 

misconduct of employing establishment Attorney Mahapatra at the February 9, 2011 

meeting. 

 The special assignment list supported it was an unfair workload, and documentation 

showed the EEO complaint was filed before the assignment. 

 Mr. Logsdon was aware of her divorce in October 2008, when he signed paperwork, 

of record, acknowledging it. He also admitted that he overheard Mr. Versoza making 

remarks to her and would not stop it; and an e-mail, of record, showed that he wrote 

to appellant about meeting a married man in the Philippines. 

 Mr. Logsdon falsely denied calling appellant a Latina Elizabeth Taylor, and contrary 

to his statement, she and Mr. Versoza did not speak after the meeting. 

 She filed the EEO complaint because in September 2010 Mr. Logsdon discussed her 

personal life in a maintenance meeting, that is, whether Mr. Martinez was her lover. 
8

 Email evidence to Rito Palencia proved that Mr. Logsdon was interested in her 

personal life. 

Appellant submitted several letters she had written, some as far back as 2003, as well as 

statements from coworkers and other evidence. This included a July 21, 2009 e-mail from 

Mr. Logsdon regarding her request for a 5:00 a.m. revised schedule. Mr. Logsdon replied by 

asking whether this was so she could be with Mr. Palencia sooner before going to the 

Philippines, and that Mr. Palencia would just have to wait until she got off work at 3:30 p.m. 

“lol.” But on a serious note, he would not approve a revision without justification. A coworker 

confirmed that when appellant questioned Mr. Logsdon on October 20, 2010 about FMLA 

absences, his voice started out loud and got louder. The tone of his voice angered. And when 

appellant refused to argue, his attitude softened. Appellant submitted a holiday schedule from 

December 26, 2009 to January 1, 2010, which included the following comment next to her name: 

“Enjoy your last Sat off ho ho ho.” 

In an August 8, 2011 statement, Deborah Mastren, a cowoker, reported that in 

November 2003 she attended a safety talk regarding the rules of conduct related to gossip. She 

heard a coworker say, “This must be because of [appellant] having sex in the bathroom.” 

Another coworker replied, “That rumor is not true,” and another coworker stated, “Yes, it is.” 

According to Ms. Mastren, the meeting spread the rumor about appellant, and it was not until she 

was contacted by appellant on August 8, 2011 that she was convinced the story was a lie. In 

October-November 2009 she heard maintenance employees continuing to make sexual jokes 

about appellant. 

By decision dated May 18, 2012, OWCP found that appellant failed to establish a 

compensable factor of employment. It denied her claim on the grounds that the evidence was not 

sufficient to establish that she was injured in the performance of duty. 

By decision dated March 8, 2013, an OWCP hearing representative affirmed. He found 

that appellant failed to establish a compensable work factor through probative and reliable 

evidence. 

On appeal, counsel contends that appellant submitted sufficient evidence to establish that 

she was subjected to harassment in a hostile workplace and suffered as a result of the derogatory 

name-calling, teasing, false gossip and slander to her reputation. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.2

 As the Board explained in Lillian Cutler,

3

workers’ compensation does not cover each and every illness that is somehow related to the 

employment. When an employee experiences emotional stress in carrying out his or her 

employment duties or has fear and anxiety regarding his or her ability to carry out his or her 

duties, and the medical evidence establishes that the disability resulted from his or her emotional 

 2

 5 U.S.C. § 8102(a). 

3

 28 ECAB 125 (1976). 
9

reaction to such situation, the disability is generally regarded as due to an injury arising out of 

and in the course of employment. By contrast, there are disabilities having some kind of causal 

connection with the employment that are not covered under workers’ compensation because they 

are not found to have arisen out of employment, such as when disability results from an 

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

particular environment or to hold a particular position. 

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. However, 

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

employing establishment in an administrative matter, coverage will be afforded.4

 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.5

It is well settled that an employee’s reaction to supervision is not a compensable factor of 

employment under Cutler.

6

 Complaints about the manner in which a supervisor performs his 

duties or the manner in which a supervisor exercises his discretion fall, as a rule, outside the 

scope of coverage provided by FECA. This principle recognizes that a supervisor or manager 

must be allowed to perform his duties and that employees will, at times, dislike the actions taken. 

Mere disagreement or dislike of a supervisory or managerial action is not compensable, absent 

evidence of error or abuse.7

As a rule, allegations alone by a claimant are insufficient to establish a factual basis for 

an emotional condition claim.8 In claims for a mental disability attributed to work-related stress, 

the claimant must submit factual evidence in support of her allegations of harassment or 

discrimination. The claimant must specifically delineate those factors or incidents to which the 

emotional condition is attributed and submit supporting factual evidence verifying that the 

implicated work situations or incidents occurred as alleged. Vague or general allegations of 

 4 Thomas D. McEuen, 42 ECAB 566, 572-73 (1991). 

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

6 Reco Roncaglione, 52 ECAB 454 (2001) (disagreement with the associate warden held not compensable, 

whether viewed as a disagreement with supervisory instructions or as perceived poor management); Robert Knoke, 

51 ECAB 319 (2000) (where the employee attributed his emotional injury to the manner in which his supervisor 

spoke to him about undelivered mail, the Board found that a reaction to the instruction itself was not compensable, 

as work assignments given by supervisors in the exercise of supervisory discretion are actions taken in an 

administrative capacity and as such, are outside the coverage of FECA); Frank A. Catapano, 46 ECAB 297 (1994) 

(supervisory instructions, with which the employee disagreed, held not compensable in the absence of evidence of 

managerial error or abuse); Rudy Madril, 45 ECAB 602 (1994) (where the employee questioned his supervisor’s 

instructions to move from belt number five to belt number six and unload mail and became upset because he felt he 

was being pushed and picked on, the Board found that the incident was not a compensable factor of employment). 

7 T.G., 58 ECAB 189 (2006). 

8 See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board 

looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such 

allegations). 
10

perceived harassment, abuse or difficulty arising in the employment are insufficient to give rise 

to compensability under FECA. Based on the evidence submitted by the claimant and the 

employing establishment, OWCP is required to make factual findings which are reviewable by 

the Board. The primary reason for requiring factual evidence from the claimant in support of 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.9

Thus, 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.10 Grievances and EEO complaints, by themselves, do not establish that 

workplace harassment or unfair treatment occurred.11 The Board has generally held that being 

spoken to in a raised or harsh voice does not in itself constitute verbal abuse or harassment.12 

The issue is whether the claimant has submitted sufficient evidence under FECA to establish a 

factual basis for the claim by supporting her allegations with probative and reliable evidence.13

ANALYSIS 

When appellant filed her occupational disease claim, she did not attribute her emotional 

condition to her assigned duties under Cutler. The statement she submitted in support of her 

claim made clear that she was not alleging emotional stress in carrying out her employment 

duties or fear and anxiety regarding her ability to carry out those duties. Instead, she explained 

that she was subjected to sexual harassment and discrimination by her immediate supervisor, 

Mr. Logsdon. And she added that other managers either encouraged his behavior or failed to 

properly intercede. 

Appellant did implicate a special assignment given her after she filed her EEO complaint, 

but she argued this was evidence of retaliation. She added that the assignment’s workload was 

unfair, as the task was outside her regularly assigned duties and she had to do more than other 

workers, but this raised the issue of discrimination, not whether she found the duties of the 

assignment so stressful that she developed an emotional condition in attempting to discharge 

them.14 Appellant’s claim, therefore, is not generally regarded as compensable under Cutler. By 

attributing her emotional condition to the actions of her immediate supervisor, other supervisors, 

and employing establishment attorneys, appellant’s claim is largely based on error or abuse in 

administrative or personal matters under McEuen. 

 9 Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member). 

10 Michael Ewanichak, 48 ECAB 364 (1997). 

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

12 Beverly R. Jones, 55 ECAB 411, 418 (2004). 

13 James E. Norris, 52 ECAB 93 (2000). 

14 Supervisor Jones advised that the task was within appellant’s regularly assigned duties and that no overtime 

was required. 
11

As stated earlier, however, the Board has recognized an exception when error or abuse or 

unreasonable conduct on the part of managers or supervisors is established by the evidence. 

Having reviewed the extensive evidence in this record, the Board finds that appellant has 

established two compensable factors of employment. 

Mr. Logsdon, the focal point of appellant’s claim, became her immediate supervisor in 

2006, and it was the following year that she alleged some difficulty working with him. Earlier, 

in 2003, appellant alleged that Mr. Williams had started a rumor about her having sex in the 

women’s bathroom with several men. She alleged that Mr. Williams and Mr. Paul would call 

her “bitch” or “whore” in passing. It appears from Mr. Jones’ statement that both denied the 

allegations. Further, Coworker Mastren identified someone else as having started the rumor, a 

woman who had walked into the bathroom and allegedly saw appellant with a male coworker. 

Appellant’s allegations are rather distant in time, and the various statements are not sufficiently 

probative to establish this as a compensable factor. A settlement agreement, without prejudice to 

the position of the parties and with the understanding that it would not be cited in other 

proceedings, does not establish that Mr. Williams committed error in negatively discussing 

appellant at a stand-up meeting. 

On July 21, 2009 appellant asked Mr. Logsdon if she could revise her Friday schedule for 

5:00 a.m. Mr. Logsdon replied: “Is this so you can be with Rito [Palencia] sooner before going 

to the Philippines? Rito will just have to wait until you get off from work at 15:30 lol.” 

Although it appears he intended to strike a light-hearted tone, the nature of the comment was 

erroneous and unwarranted for communication between a supervisor and his subordinate.15 The 

Board finds this to be a compensable factor of employment. 

On March 30, 2010 Mr. Logsdon met with appellant and her coworker, Mr. Versoza, 

about a dispute they were having about people talking behind her back while she was on vacation 

with Mr. Martinez. After a long silence between the two, Mr. Logsdon told appellant that he did 

not want her “doing a Liz Taylor on us.” Asked what that meant, he explained that Elizabeth 

Taylor had gotten married and divorced several times. Appellant resented the comment, and 

Mr. Logsdon stated he apologized, saying it would never happen again. The Board again finds 

that the nature of this comment was erroneous for a supervisor and constitutes a compensable 

factor of employment. 

As appellant has met her burden to establish compensable factors of employment, the 

Board finds that this case is not in posture for decision on whether she sustained an emotional 

condition in the performance of duty. The Board will set aside OWCP’s March 8, 2013 decision 

and remand the case for further development on the issue of causal relationship and an 

appropriate final decision on her claim for compensation.16

Appellant made many other allegations, of course, but they are either disputed, 

unsubstantiated by evidence, or simply do not fall within the scope of workers’ compensation. 

She has filed an EEO complaint concerning these same matters, and if she is able to obtain a 

favorable decision on the merits of her complaint or any finding by the EEOC that confirms 

 15 See Carolyn S. Philpott, 51 ECAB 175 (1999). 

16 E.g., Lorraine E. Schroeder, 44 ECAB 323, 330 (1992). 
12

administrative error or abuse with respect to management’s treatment of her, she may submit 

such evidence to OWCP in further support of her claim for compensation. 

Appellant alleged that in 2007 Mr. Logsdon began to make suggestive comments and 

would frequently leer at her body or raise his eyebrows suggestively. The allegation is not 

specific as to time and place, and Mr. Logsdon disputed the allegation. Mr. Logsdon denied 

making inappropriate comments, gestures or advances. Indeed, he stated it was the other way 

around, and that contrary to her assertion, appellant had shared numerous details about her 

personal life with other staff. 

Appellant alleged retaliation in being given a special assignment following the filing of 

her EEO complaint, but Mr. Logsdon denied retaliation, noting that she and other employees 

were assigned the task based on operational needs. Whether the distribution of work was in fact 

discriminatory is not established by the record. Again, if the EEOC should find retaliation or 

discrimination in this regard, appellant may submit such evidence to OWCP in further support of 

her claim. 

Appellant has made a number of allegations concerning administrative matters, such as 

the denial of leave requests, the denial of a new starting time or temporary schedule change, the 

denial of requests for holiday hours, the denial of a transfer to a new supervisor, the furnishing of 

FMLA forms, or the failure to agree to a settlement that would have transferred Mr. Logsdon. In 

the absence of independent evidence establishing administrative error or abuse in such matters, 

as opposed to appellant’s mere perception of error or abuse, the record does not establish a 

compensable factor of employment. 

The Board will discuss matters relating to the employing establishment attorneys. On 

February 9, 2011 employing establishment Ms. Mahapatra communicated with appellant, outside 

the presence of her attorney and without his knowledge or consent, about settling her EEO 

complaint. Ms. Mahapatra explained, and Mr. Jones confirmed, that appellant did not indicate 

she was represented by counsel, nor did she supplement or append any paperwork to note she 

had retained an attorney. The California State Bar Association determined there was substantial 

evidence Ms. Mahapatra’s conduct amounted to a violation of a rule of professional conduct, and 

therefore she was issued a warning letter as notice that the specified conduct was prohibited and 

to refrain from such conduct in the future. The State Bar Association wrote to appellant and 

advised her that the warning letter was not considered public discipline; the letter was 

confidential, and it was not to be disclosed to anyone besides her and Ms. Mahapatra. Further, 

the Bar made clear to appellant: “The letter cannot be offered to or considered by a court or 

other proceeding as evidence of professional misconduct.” But this is just what appellant 

attempted to do when she disclosed the matter to OWCP and argued that the action taken by the 

Bar substantiated her allegation of compensable administrative error. Appellant’s allegation 

concerning the EEO proceeding and settlement communication by Ms. Mahapatra lies outside 

the scope of coverage under McEuen. Her remedy was provided by the California State Bar 

Association which has jurisdiction to consider issues of professional misconduct.17

 17 Compare Isabel R. Pumdido, 51 ECAB 326 (2000). 
13

In late 2010 appellant attempted to obtain a restraining order against Mr. Logsdon. An 

employing establishment attorney, Ms. Hull, called appellant at home and told her she could not 

win the complaint, and that if she sought EEO relief or a restraining against her supervisor, she 

would lose her job. Appellant allegedly withdrew her request for fear of losing her job. The 

Board notes that the hearing representative accepted that Ms. Hull called her at home and made 

such representations. The Board finds this to be a compensable factor under McEuen as it was 

inappropriate and in error 

In other matters, the record establishes that in December 2009 Mr. Logsdon posted a 

holiday schedule with the following comment by appellant’s name: “Enjoy your last Sat off ho 

ho ho.” Although she felt this referred to her as a “ho,” he stated that it was Christmas and 

denied that it was meant to harass her. She alleged that she confronted him about it, but he 

denied that she ever questioned the comment. The evidence of record does not establish a 

compensable factor in this regard. 

On October 10, 2010 Mr. Logsdon spoke to appellant loudly about her FMLA absences. 

This was witnessed. As the Board noted earlier, being spoken to in a raised or harsh voice does 

not in itself constitute verbal abuse or harassment. Without evidence that Mr. Logsdon used 

inappropriate language in addressing appellant, his loud or angry tone is not a compensable 

factor of employment.18

Appellant’s alleged that others were talking about her behind her back. For example, on 

February 3, 2010, after she returned from a week off, a coworker told appellant that Mr. Logsdon 

and Mr. Versoza had discussed her relationship with Mr. Martinez in a manner that could be 

heard by others. The coworker told appellant that Mr. Logsdon did this each time she went on 

vacation. Appellant was embarrassed when she was informed of this. This was not an incident, 

however, that appellant experienced first-hand. Mr. Logsdon and Mr. Versoza did not speak to 

her directly or in her presence.19 If it occurred, it occurred in her absence. Her emotional 

reaction was to hearing about it from someone else. The Board had held that an emotional 

reaction to gossip in the workplace represents a personal frustration unrelated to one’s duties and 

is not compensable.20 In Gracie A. Richardson,

21 the claimant had become romantically 

involved with a coworker. She alleged, among other things, that she was devastated to think that 

coworkers were gossiping behind her back regarding her marital and other personal 

relationships. The Board found that an emotional reaction to gossip was not a compensable 

factor of employment. 

The Board finds two compensable employment factors. The case will be remanded for 

development on the medical issue of causal relationship. 

 18 See Joe M. Hagewood, 56 ECAB 479 (2005). 

19 See Mary A. Sisneros, 46 ECAB 155 (1994) (the claimant learned that a coworker had called her a bitch). 

Appellant has also alleged that Mr. Logsdon and Mr. Versoza had made snide remarks to her directly about her 

private relationship with Mr. Martinez, but these allegations are disputed and unsubstantiated by other evidence. 

20 S.A., Docket No. 11-171 (issued January 9, 2012). 

21 42 ECAB 850 (1991). 
14

CONCLUSION 

The Board finds that the case is not in posture for decision on whether appellant sustained 

an emotional condition in the performance of duty. Further development is warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the March 8, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action 

consistent with this decision of the Board. 

Issued: September 12, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board