United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Brick, NJ, Employer 

__________________________________________ 

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Docket No. 14-1860 

Issued: June 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 22, 2014 appellant filed a timely appeal from a February 26, 2014 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 has met her burden of proof to establish an emotional 

condition while in the performance of duty. 

FACTUAL HISTORY 

On April 18, 2011 appellant, then a 58-year-old mail processing clerk, filed an 

occupational disease claim alleging that on March 16, 2011 she sustained generalized anxiety 

and post-traumatic stress disorders in the performance of duty. She stated that she first became 

 1

 5 U.S.C. § 8101 et seq.
2

aware of her conditions on March 16, 2011 and realized they were caused by her employment on 

April 11, 2011. Appellant attributed her conditions to harassment, discrimination, and 

disciplinary action related to her use of leave under the Family and Medical Leave Act (FMLA), 

changes in her work duties and hours, unreasonable time restraints for handling and submitting 

documents, and humiliation by her supervisors. She stopped work on April 23, 2011. 

By letter dated May 27, 2012, OWCP advised appellant that the evidence submitted was 

insufficient to establish her claim. It requested that she submit factual and medical evidence. 

In an undated letter, Dean B. Santulli, a customer service supervisor, noted that appellant 

had been working in a limited-duty capacity following a March 2005 arm injury. The last job 

offer made to appellant was dated August 2010. Due to declining mail volumes, changes in mail 

processing (i.e., increases in automated mail), and operational necessity, it was necessary to 

modify her assigned duties to ensure that she performed necessary work within her restrictions. 

Appellant had not disputed any of these changes. She was unhappy and brooding over the 

employing establishment’s failure to give her the work she desired and, as a result, she believed 

that she suffered from an emotional condition. Mr. Santulli contended that appellant’s injury did 

not constitute an injury in the performance of duty within the meaning of FECA. He noted that 

disciplinary action taken against her regarding an FMLA-related condition had been addressed 

through the grievance and arbitration process and was now closed. 

Medical records dated April 18 to June 2, 2011 diagnosed appellant as having generalized 

anxiety and post-traumatic stress disorders, and addressed her work-related disability and 

medical treatment. 

In a June 27, 2011 decision, OWCP denied appellant’s claim, finding that the weight of 

the evidence did not establish that the claimed incidents occurred as alleged. 

In an appeal request form dated July 25, 2011 and received by OWCP on August 8, 2011, 

appellant requested a telephone hearing with an OWCP hearing representative. 

In a June 30, 2011 letter, appellant described her physical symptoms and stated that on or 

about March 16, 2011 it was becoming extremely difficult for her to come to work as she was 

harassed, intimidated, and discriminated against by management and her coworkers. In a 

separate June 30, 2011 letter, she described an alleged pattern of harassment, discrimination 

based on her age, disability, and sex, and being subjected to disparate treatment, and alleged 

various actions. Appellant claimed that management was trying to force employees out like her 

who were in the National Reassessment Program (NRP). Her start time constantly changed. 

When appellant requested time to perform her job in accordance with the employing 

establishment’s regulations, she was told to do as instructed by her supervisor or she would get a 

failure to follow instruction letter. Mr. Santulli, Janine Lapi, a supervisor, and former 

postmaster, Bob Weldon, made accusations against appellant and purposefully tried to get her to 

yell back at them in her defense, but she refused to do so. Appellant received a letter of warning 

for covered FMLA absences which were brought to step 2 of a grievance process. Prior letters of 

warning were removed from her record. Appellant was notified less than one week before her 

start time was changed from 3:00 a.m. to 9:00 a.m. On April 16, 2011 Ms. Lapi requested that 

appellant start work at 2:00 a.m. Employees who had numerous late arrivals were allowed to 
3

change their schedules while appellant was verbally disciplined and received letters of warning 

for being late. Appellant’s medical and personal paperwork were improperly handled by 

management. She never refused to perform any job due to her injury and she did not receive 

reasonable accommodation while employees who had nonjob-related injuries or illnesses refused 

to perform certain jobs and received accommodation. 

Appellant’s supervisors allegedly talked about her personal situation with employees. A 

female employee called her a derogatory name as she left the lunch room immediately reported 

to the union vice president. Ms. Lapi yelled at appellant on the workroom floor in the presence 

of coworkers. Appellant was not afforded time to study a scheme change while other employees 

were allowed to do so. Mr. Santulli held a “PDI” discussion with appellant for abusing her 

FMLA rights and asked her to provide more paperwork. A March 16, 2011 letter of warning 

was issued to appellant, which resulted in step 1 and 2 of a grievance process. She was placed 

on restricted sick leave and deemed disabled for FMLA-covered absences. Appellant’s 

supervisors refused to remove these restrictions. 

In an undated letter, Mr. Santulli informed appellant that she had five days to produce 

updated medical documentation explaining her physical status and work capacity. In a separate 

undated letter, he informed her that her new tour from 9:00 a.m. to 6:00 p.m. would begin on 

April 16, 2011. 

In a March 16, 2011 letter of warning, the employing establishment stated that appellant 

failed to be in regular attendance from January 3 to February 28, 2011. 

A March 28, 2011 document indicated that appellant’s request for leave under FMLA 

was approved. 

Medical records dated April 18 to June 30, 2011 addressed appellant’s generalized 

anxiety and post-traumatic stress disorders, emotional and physical conditions, work capacity, 

and medical treatment. 

In a September 8, 2011 decision, the Branch of Hearings and Review denied appellant’s 

hearing request, finding that it was not filed within 30 days. An OWCP hearing representative 

also denied a discretionary hearing, noting that she could instead file a request for 

reconsideration. 

In a memorandum dated June 28, 2012, appellant, through counsel, requested 

reconsideration. Counsel attributed appellant’s emotional condition to several work incidents. 

On or about March 29, 2009 the employing establishment used appellant’s scheduled day of 

annual leave as an aggravating factor when issuing a letter of warning to her. On or about 

March 25, 2011 Mr. Santulli issued a letter of warning to appellant for taking protected leave 

under FMLA. Counsel stated that he wrongfully asserted that approved leave could serve as a 

basis for disciplinary action. He also argued that, since approximately 2008, appellant worked 

beyond her OWCP accepted medical restrictions and limitations despite being offered a limitedduty job by the employing establishment. Ms. Lapi and Postmaster Weldon refused her request 

for assistance to perform her regular and specially assigned work. They responded that, if she 

could not perform the job, she was not needed on the tour. Since approximately December 2008, 
4

Postmaster Weldon, Ms. Lapi, Mr. Santulli, and Ms. Salerno allegedly harassed appellant by 

repeatedly and abusively asking about her age and when she was eligible for retirement. 

Appellant filed a grievance regarding the March 16, 2011 letter of warning for failure to be in 

regular attendance despite her absences being protected under FMLA and as a result, the letter 

was expunged from her file. A union steward suggested that management was trying to harass 

her into resigning due to her use of the FMLA and previously accepted employment injury.2

 

Appellant’s supervisor and management discarded or destroyed her submitted medical 

documentation and FMLA approval certifications. They also repeatedly asked appellant to 

submit medical documentation that she had previously submitted. Her supervisor and 

management verbally abused her in front of coworkers by stating that she had the worse 

attendance record in the district and that she should retire before being fired. Pompi Nagilia, a 

supervisor, Ed Regula, an employee, and Mr. Kirschenbaum had FMLA certification and were 

late for work due to their or a family member’s medical condition, but none of them was 

repeatedly asked to submit medical documentation and disciplined as appellant. 

By letter dated April 11, 2011, Mr. Santulli and Ms. Lapi informed appellant that her start 

time was being changed from 3:00 a.m. to 9:00 a.m. which was in violation of a collective 

bargaining agreement. They also reassigned her to dispatch duties without assignment through 

competitive seniority bidding in violation of the employing establishment’s rules, regulations, 

policies, or procedures. The dispatch duties were outside of appellant’s medical restrictions and 

limitations related to her accepted claim under File No. xxxxxxx496. Other employees were 

accommodated with work within their medical restrictions and limitations. Ms. Lapi told 

appellant that she did not want to issue the April 11, 2011 letter or reassign her work duties. The 

employing establishment discriminated against appellant based on her sex and age as no males 

and no females under the age of 40 were similarly reassigned. In another letter dated April 11, 

2011, Mr. Santulli and Ms. Lapi requested that she submit updated medical documentation 

within five days while clerks with on-the-job and off-the-job injuries were not required to do so. 

On or about April 16, 2011 Ms. Lapi yelled at appellant on the workroom floor in front of her 

coworkers about her age, job performance, personal matters, request for and use of leave under 

the FMLA, and work ethics in a demeaning, intimidating, condescending, embarrassing, and 

humiliating manner. Ms. Lapi invited Mr. Santulli to come nearer to hear her tongue lashing. 

Postmaster Weldon failed to reprimand Ms. Salerno who called appellant a profane name during 

a meeting. 

In letters of warning dated March 24, 2009 and March 16, 2011, the employing 

establishment stated that appellant failed to be in regular attendance from February 5 to 

March 14, 2009 and January 3 to February 28, 2011, respectively. In a grievance dated April 7, 

2009, appellant alleged that she was on scheduled annual leave on at least one of the dates listed 

in the March 24, 2009 letter. 

Documents dated May 12 and April 19, 2011 indicated that appellant was eligible and 

approved for leave under FMLA. 

 2

 Appellant filed a traumatic injury claim for an injury sustained on March 21, 2005 under File No. xxxxxx496. 
5

In an undated letter, Mr. Santulli informed appellant that her new work hours from 9:00 

a.m. to 6:00 p.m. would begin on April 16, 2011. 

Medical records dated June 6, 2011 to March 22, 2012 diagnosed appellant as having 

generalized anxiety and depressive disorders, emotional conditions, physical restrictions, 

disability, and medical treatment. 

In a January 22, 2013 decision, OWCP denied modification of the June 27, 2011 

decision, finding that the additional evidence did not establish the claim. It noted that appellant 

did not submit probative and reliable evidence to support her allegations. 

By letter dated November 6, 2013, appellant, through counsel, requested reconsideration. 

In an August 19, 2011 letter, Mr. Santulli informed appellant that her new tour of duty 

would begin at 9:00 a.m. effective immediately upon her return to duty. 

In a September 17, 2012 witness statement, Quartryce Skyes, an employee, addressed 

appellant’s contentions. She related that it was improper for the employing establishment to use 

approved leave as a basis for disciplinary action. Ms. Skyes further related that, since appellant’s 

work-related shoulder injury under File No. xxxxxx496, appellant had not been given limitedduty work despite having a limited-duty assignment offer signed by a supervisor or management. 

Appellant was regularly assigned full-work duties without restrictions or limitations. She told 

Ms. Skyes that Mr. Santulli and Postmaster Weldon repeatedly asked her about her age, 

eligibility for retirement, and ability to perform her job. Appellant also told her about 

Postmaster Weldon’s statement that, if she could not do the job, she was not needed on the tour. 

Ms. Skyes stated that appellant was not allowed work time to study a scheme change, while all 

male clerks and female clerks younger than her were afforded scheme study time. She was 

repeatedly asked to submit FMLA documentation by Ms. Lapi, Mr. Santulli, and the postmaster. 

They treated appellant in an abusive manner regarding her FMLA-protected absences. 

Mr. Nagilia knew about appellant’s lifting restriction related to her accepted shoulder condition 

and her heart condition following a heart attack, but constantly directed her to work outside her 

restrictions on a daily basis. The change in her start time and reassignment to another bid 

position were in violation of the collective bargaining agreement. No man on appellant’s tour 

received a new start time or was reassigned from mail processing duties to dispatch duties. Only 

one woman was given a new start time and reassigned from mail processing duties to dispatch 

duties. It was clear that these people were accommodated for either OWCP accepted workrelated conditions or FMLA-certified medical conditions while appellant was not 

accommodated. Neither the postmaster nor supervisor spoke to them in an abusive, intimidating, 

demanding, embarrassing, and harassing manner. 

On or about April 16, 2011 Ms. Skyes heard Ms. Lapi speak to appellant in a demanding, 

intimidating, condescending, embarrassing, and humiliating manner in the middle of the 

workroom floor and while assigning her work duties. Ms. Lapi often spoke to and about her 

subordinates in this manner which was clearly condoned and approved by the postmaster. 

Appellant was subjected to disparate treatment as she was repeatedly required to submit medical 

documentation to her immediate supervisors and postmaster in support of her FMLA 

certification while other employees were not required to do the same. 
6

Mr. Santulli, Ms. Lapin, and Ms. Salerno responded to appellant’s allegations. 

Mr. Santulli and Ms. Lapin stated that they did not remember issuing the March 24, 2009 letter 

of warning or appellant working beyond her restrictions and limitations. Mr. Santulli only 

remembered asking her for documentation regarding her FMLA absence. He and Ms. Lapi 

denied telling appellant that she was not needed on the tour if she could not do her job. Ms. Lapi 

stated that she was on a detail in Englishtown, New Jersey at that time. She also denied 

harassing appellant about her age, noting that they were the same age. Mr. Santulli stated that he 

did not care about appellant’s age and that she did not work for him. Ms. Salerno did not recall 

having any conversations with appellant or any other employee about their age. Ms. Lapi stated 

that she was not concerned about appellant’s retirement eligibility and Ms. Salerno did not recall 

having such a conversation with appellant. Ms. Lapi and Mr. Santulli stated that appellant was 

afforded the first two hours of tour to study scheme changes. Ms. Lapi stated, however, that she 

continually refused to swipe onto the correct operation code reflecting scheme study time. 

Mr. Santulli related that appellant did not apply and receive FMLA until March 2011 and she 

had 12 absences up to that point. He further stated that she had used invalid FMLA numbers. 

Ms. Lapi stated that she was not privileged to any of appellant’s FMLA information as all 

information was sent to appellant from an FMLA coordinator. Mr. Santulli stated that he never 

received any FMLA documentation. 

Regarding appellant’s allegation of verbal abuse by management regarding her 

attendance record since December 2008, Ms. Lapi responded that she was in Englishtown, New 

Jersey in 2008. Mr. Santulli stated that he never made a comment about appellant’s attendance. 

He and Ms. Lapi stated appellant’s contention that her FMLA paperwork was found to be 

inadequate and that she had to repeatedly submit the paperwork was not true. Mr. Santulli stated 

that he was not allowed to ask for documentation when someone called out under FMLA 

documentation. Ms. Lapi stated that she never asked appellant for documentation. Mr. Santulli 

maintained that issuance of the March 16, 2011 letter of warning was not malicious. He further 

maintained that it was expunged as an act of good faith that appellant would not abuse her sick 

leave. Ms. Lapi stated that she was following Postmaster Weldon’s instructions regarding 

issuing the April 11, 2011 letter which changed appellant’s start time. Neither Mr. Santulli nor 

Ms. Lapi remembered that this letter changed appellant’s work duties. Ms. Lapi believed she 

was on a detail in Lakewood, New Jersey when the letter was allegedly issued. Ms. Salerno did 

not recall appellant performing dispatch duties. Mr. Santulli stated that the male employees who 

did not have their start time or duties changed were not under NRP. Ms. Lapi stated that no 

other employees under NRP who were affected by its guidelines. She and Mr. Santulli denied 

treating appellant differently in accomodating the medical restrictions of other employees. 

Ms. Lapi was willing to accommodate her, however, she refused to provide all information and 

doctor’s notes pertaining to her claim. Mr. Santulli stated that the required documentation was 

necessary to assign duties within her restrictions. Ms. Lapi denied that she lashed out at 

appellant on April 16, 2011. Mr. Santulli stated that this incident did not occur. Ms. Salerno 

stated that she never called appellant or any other employee a derogatory name. 

In a February 26, 2014 decision, OWCP denied modification of the January 22, 2013 

decision. It found that the evidence submitted failed to establish a compensable factor of 

employment. 
7

LEGAL PRECEDENT 

A claimant has the burden of establishing by the weight of the reliable, probative and 

substantial evidence that the condition for which he or she claims compensation was caused or 

adversely affected by factors of his or her federal employment.3 To establish that he or she 

sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual 

evidence identifying employment factors or incidents alleged to have caused or contributed to his 

or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric 

disorder; 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. 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 or her 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 or her 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 employer rather than the regular or specially 

assigned work duties of the employee and are not covered under FECA7 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 

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 

 3 Pamela R. Rice, 38 ECAB 838 (1987). 

4 See Donna Faye Cardwell, 41 ECAB 730 (1990). 

5

 5 U.S.C. §§ 8101-8193; 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). 
8

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

factors of employment and may not be considered.10 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.11

ANALYSIS 

The Board finds that appellant did not meet her burden of proof to establish an emotional 

condition causally related to factors of her federal employment. Appellant has not alleged any 

factors that would fall under the Cutler case as primarily, she alleged instances of harassment, 

discrimination based on her age, disability, and sex, intimidation, disparate treatment, and verbal 

abuse by Mr. Santulli, Ms. Lapi, Postmaster Weldon, and Ms. Salerno. Mere perceptions of 

harassment or discrimination are not compensable under FECA.12 Unsubstantiated allegations of 

harassment or discrimination are not determinative of whether such harassment or discrimination 

occurred. A claimant must establish a factual basis for his or her allegations with probative and 

reliable evidence.13 

Appellant claimed that Ms. Conrad witnessed the employing establishment treat her 

differently when she was verbally disciplined and received letters of warning for being late for 

work while other employees who had numerous late arrivals were not disciplined. She further 

claimed that Ms. Leary, Mr. Kirschenbaum, Mr. Collucci, and Mr. Hamby witnessed that 

employees were provided time to study a scheme change while she was not given such time. 

The record does not contain witness statements from any of these employees supporting 

appellant’s allegations. The record fails to substantiate her allegation that management was 

trying to harass her into resigning because of her use of the FMLA and prior accepted 

employment injury. 

Ms. Skyes generally maintained that appellant told her that Mr. Santulli and 

Postmaster Weldon repeatedly asked appellant about her age, retirement eligibility, and ability to 

perform her job. Her statements are insufficient to establish these incidents, however, as she did 

not claim to have actually witnessed them. Ms. Skyes further maintained that appellant told her 

that Postmaster Weldon stated that she was not needed on the tour if she could not perform her 

job. Ms. Lapi and Mr. Santulli denied this allegation and Ms. Lapi stated that she was on a detail 

in Englishtown, New Jersey when the alleged statement was made. She and Mr. Santulli also 

denied harassing appellant about her age or being concerned about her retirement eligibility. 

Ms. Lapi noted that she and appellant were the same age and Mr. Santulli stated that he did not 

care about appellant’s age. Ms. Salerno did not recall having a discussion with appellant about 

her age. 

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

11 Id.

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

13 Id. 
9

Ms. Skyes’ claim that Ms. Lapi, Mr. Santulli, and Postmaster Weldon treated appellant in 

an abusive manner regarding her FMLA-protected absences is general in nature and does not 

identify specific incidents of abuse. She maintained that appellant was subjected to disparate 

treatment because her accepted work-related or FMLA-certified medical conditions were not 

accommodated by the employing establishment while other employees with the same types of 

conditions were accommodated. Ms. Skyes noted that no male employee received a new start 

time or was reassigned and that only one other female employee received a new start time and 

was reassigned. She further maintained that appellant was repeatedly required to submit medical 

documentation to her immediate supervisors and postmaster in support of her FMLA 

certification while other employees were not required to do so. 

A request for reasonable accommodation and medical documentation relate to 

administrative matters14 and are not compensable absent a showing of error or abuse on the part 

of the employing establishment. Ms. Skyes’ statements are general in nature and do not provide 

specific details sufficient to establish error or abuse by the employing establishment in denying 

appellant’s request for reasonable accommodation and in requesting medical documentation. 

Ms. Lapi and Mr. Santulli denied disparate treatment of appellant regarding her request for 

accommodation of her restrictions. Ms. Lapi expressed her willingness to accommodate 

appellant’s restrictions and stated that appellant refused to provide all the necessary medical 

documentation related to her claim. Mr. Santulli explained that the required documentation was 

necessary to assign duties within her restrictions. He and Ms. Lapi related that certain male 

employees were not assigned a new start time or duties as they were not under NRP. Based on 

the statements from Ms. Lapi, Mr. Santulli, and Ms. Salerno, the Board finds that appellant has 

not established a factual basis for her allegations that she was harassed, discriminated against 

based on her age, disability, and sex, intimidated, and subjected to disparate treatment by the 

employing establishment. Therefore, appellant has failed to establish a compensable factor of 

employment. 

Ms. Skyes claimed that she heard Ms. Lapi verbally abuse appellant in front of her 

coworkers on April 16, 2011 regarding the assignment of work. She stated that Ms. Lapi often 

spoke to her subordinates in this manner. The Board has generally held that being spoken to in a 

raised or harsh voice does not of itself constitute verbal abuse or harassment.15 Ms. Skyes’ 

statements are general in nature and do not describe specific details of verbal abuse by Ms. Lapi 

on April 16, 2011 or on any other occasion directed at appellant. Ms. Lapi denied lashing out at 

appellant on April 16, 2011 and in December 2008. She stated that she was on a detail 

assignment in Englishtown, New Jersey in December 2008 when she allegedly verbally abused 

her. Mr. Santulli stated that the April 16, 2011 incident did not occur as alleged. Ms. Salerno 

denied calling appellant a profane name. The Board finds that appellant has not established that 

she was verbally abused by the employing establishment.16 Appellant has not established a 

compensable factor of her employment. 

 14 James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999). 

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

16 See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by 

itself, support a finding of verbal abuse). 
10

Appellant’s allegations regarding changes in her work schedule,17 assignment of work,18

dislike of a supervisory or managerial action in being directed to follow instructions,19 issuance 

of the March 29, 2009 and March 16 and 25, 2011 letters of warning,20 the handling of her 

medical and personal paperwork, requests for medical documentation for her absences from 

work,21 the filing of grievances,22 and being placed on restricted sick leave,23 are administrative 

matters24 and not compensable absent a showing of error or abuse on the part of the employing 

establishment.25 Mere dislike or disagreement with certain supervisory actions will not be 

compensable absent error or abuse on the part of the supervisor.26 The Board finds that the 

record does not establish error or abuse in these matters and they are not compensable factors of 

employment. Ms. Skyes stated that it was improper for management to use approved leave as a 

basis for disciplinary action taken against appellant. She further stated that appellant’s new start 

time and reassignment to another bid position were made in violation of a collective bargaining 

agreement. Ms. Skyes’ statements are general in nature and do not provide specific details 

sufficient to establish error or abuse by the employing establishment in handling these 

administrative matters. She maintained that appellant’s supervisor and management discarded or 

destroyed appellant’s medical documentation and FMLA approval certifications. Ms. Skyes’ 

statements are insufficient to establish any error or abuse as she did not indicate that she actually 

witnessed the employing establishment act erroneously or abusively as alleged by appellant in 

handling her submitted documents. 

Regarding her statement that the disciplinary letters issued to appellant had been 

expunged from her file as a result of a grievance she filed, the Board notes that the mere fact that 

personnel actions were later modified or rescinded does not, in and of itself, establish error or 

abuse.27 While the March 16, 2011 letter of warning was expunged from appellant’s file, the 

record does not contain a final decision finding that the employing establishment committed 

error or abuse in issuing this letter or the other disciplinary letters. Mr. Santulli explained that 

issuance of the March 16, 2011 letter was not malicious. He further explained that it was 

expunged from appellant’s file as an act of good faith that she would not abuse her sick leave. 

 17 Ernest J. Malagrida, 51 ECAB 287 (2000). 

18 Charles D. Edwards, 55 ECAB 258 (2004). 

19 See Marguerite J. Toland, 52 ECAB 294 (2001). 

20 See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41 

ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988). 

21 James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999). 

22 Michael A. Salvato, 53 ECAB 666, 668 (2002). 

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

24 J.C., 58 ECAB 594 (2007). 

25 Donney T. Drennon-Gala, 56 ECAB 469 (2005). 

26 A.K., Docket No. 14-437 (issued June 9, 2014). 

27 Dennis J. Balogh, 52 ECAB 232 (2001). 
11

Mr. Santulli noted that she had 12 absences before she applied and received leave under the 

FMLA in March 2011. He also noted that appellant had used invalid FMLA numbers. 

Mr. Santulli and Ms. Lapi denied repeatedly asking her to submit FMLA paperwork and 

deeming the submitted paperwork as inadequate. Mr. Santulli maintained that he was not 

allowed to ask for such documentation. Ms. Lapi stated that she was not privileged to any of 

appellant’s information since it was sent to her by an FMLA coordinator. 

Regarding the issuance of the April 11, 2011 letter informing appellant that her start time 

had been changed from 3:00 a.m. to 9:00 a.m., Ms. Lapi stated that she only followed 

Postmaster Weldon’s instructions to do so. Neither she nor Mr. Santulli recalled issuing the 

April 11, 2011 letter which informed appellant about her reassignment to a new work position. 

Ms. Lapi related that she was on a detail in Lakewood, New Jersey when the letter was allegedly 

issued. Mr. Santulli did not recall appellant performing dispatch duties. He noted that her work 

duties were last modified in August 2010 due to changes in mail volumes and processing and 

operational concerns. Mr. Santulli explained that this modification was also necessary to ensure 

that appellant performed work within her restrictions. He stated that she claimed a work-related 

emotional condition because she was unhappy and brooding about the employing 

establishment’s failure to provide her with the work she desired. As stated, appellant’s desire to 

work in a particular work environment does not relate to any requirement of her assigned duties 

and, thus, her reaction did not arise in the performance of duty.28 Based on the statements from 

Mr. Santulli and Ms. Lapi, the Board finds that appellant has failed to establish that the 

employing establishment committed error or abuse in handling the above-noted administrative 

matters. Therefore, appellant has failed to establish a compensable factor of employment. 

Appellant alleged that since 2008 the employing establishment did not abide by her work 

restrictions and management failed to provide assistance with her work duties. Being required to 

work beyond one’s physical limitations may constitute a compensable employment factor, but 

such allegation must be substantiated by probative and reliable evidence.29 The record does not 

contain sufficient evidence to establish that appellant had specific limitations that were not 

accommodated by the employing establishment. Ms. Skyes claimed that appellant was assigned 

full-work duties despite having a limited-duty job offer related to her accepted shoulder 

condition under File No. xxxxxx496 and that Mr. Nagilia directed appellant to work outside her 

lifting restriction on a daily basis. The Board finds that Ms. Skyes’ statement is general in nature 

and does not specifically identify the nature of appellant’s restrictions and assigned work duties. 

Further, appellant did not submit any evidence to support her claim that management failed to 

provide assistance with her work duties. She has not submitted evidence sufficient to establish 

that her physical restrictions were exceeded or that management failed to provide her with 

assistance. The Board finds that appellant has not established a compensable employment factor. 

Since appellant has not established a compensable work factor, the Board will not address 

the medical evidence.30

 28 Supra note 6. 

29 Diane C. Bernard, 45 ECAB 223 (1993); Lizzie McCray, 36 ECAB 419, 421 (1985). 

30 Karen K. Levene, 54 ECAB 671 (2003). 
12

On appeal, appellant has submitted new evidence. The Board lacks jurisdiction to review 

evidence for the first time on appeal.31 Appellant may submit new evidence to OWCP with a 

written request for reconsideration within one year of this merit decision. 

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish that she 

sustained an emotional condition while in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the February 26, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 31 20 C.F.R. § 501.2(c)(1).