United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Orlando, FL, Employer 

__________________________________________ 

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Docket No. 15-0547 

Issued: May 2, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 15, 2015 appellant filed a timely appeal from an August 14, 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. 

ISSUES 

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

performance of duty; and (2) whether OWCP properly denied her request for subpoenas. 

FACTUAL HISTORY 

On July 10, 2013 appellant, then a 46-year-old federal air marshal, filed an occupational 

disease claim (Form CA-2) alleging that she sustained post-traumatic stress disorder (PTSD), 

bipolar II disorder, generalized anxiety disorder, and memory loss causally related to factors of 

 1

 5 U.S.C. § 8101 et seq. 
2

her federal employment. She alleged that supervisors harassed her over the course of 11 years 

and that she experienced reprisal after she obtained an Equal Employment Opportunity (EEO) 

settlement in 2006. Appellant further alleged that as part of the reprisal she was a category on a 

Jeopardy Game Board created by coworkers at her work location. 

By letter dated July 12, 2013, OWCP requested that appellant submit additional factual 

and medical evidence in support of her claim. 

In a statement dated July 15, 2013, appellant related: 

“I have been subjected to constant and pervasive harassment by male members of 

the Orlando Management team for 11 years. I received a favorable settlement in 

an EEO complaint in 2005/2006 with Agency for unfair labor practices, 

harassment, and retaliation of me. The circumstances surrounding the settlement 

are under gag order. Immediately after this EEO settlement the harassment and 

retaliation continued. I was placed on the Orlando Jeopardy Board and my 

category was Treasure Hunter due to this favorable settlement in 2005/2006. My 

work partner killed herself in 2010 and a contributing factor was because she was 

labeled a lesbian on this Jeopardy Board. I was sexually harassed by my 

supervisor [M.S.] from January 2011 till his departure in June of 2012.” 

In support of her claim, appellant related that she had filed an EEO complaint due to 

sexual harassment, but that it had not been resolved. Although she reported the harassment to 

management, she claimed management did not file a report of the harassment as required. In 

2012 a coworker threw a ball at appellant’s head, and when she reported that incident to 

management, they again failed to act. Appellant claimed that she was not selected for a Tactical 

Information Sharing System (TISS) position even though she scored higher than the other 

applicants. Management allegedly removed her from an employment position after erroneously 

finding her work not acceptable and in November 2013 management again removed her from 

another position when she reported that K.F., her supervisor at the time, went to an assignment 

with an empty ammunition magazine. Appellant related: 

“In June of 2012 I was falsely accused by ASAC [Assistant Special Agent in 

Charge] [H.N.] and disciplined for being late 29 out of 30 days and was only 

provided the documentation used for this false claim after hiring an attorney and 

demanding to review this document. After review of this document I was late 1 

minute, 1 day in a 30 day period. I was charged with 30 minutes of AWOL for 

being late that day.” 

Appellant also maintained that she was prohibited from doing CrossFit training while at 

work, but that male coworkers were allowed to perform the training. She further maintained that 

Senior Federal Air Marshal M.S. had called her into a dark room with no witnesses, yelled at her, 

spit on her, and told her she was a “bitch.” Appellant also claimed management gave her a bad 

performance review because of whistleblowing activities and that male coworkers received more 

training. 

In a statement dated July 16, 2013, S.L., a supervisor with the employing establishment, 

related that M.S. sexually harassed her and other females in the office. M.S. allegedly told her 
3

he was not afraid of appellant. S.L. related that she and two male coworkers had scored 

appellant 15 out of 15 points in her interview for a position as a TISS officer, but that a male 

applicant with a lower score was selected by management for the position. M.D., a special agent 

in charge, told S.L. that scoring appellant high had put him in a bad position. S.L. further 

related, “In eleven years there has never been a female in the training department, the same 

department that created the Jeopardy Board.” She indicated that H.N., and M.S. cancelled a 

workout appellant was doing because they did not want her “building alliances and friendships 

with her male coworkers. [Appellant] was the only female who participated in these workouts. 

They ordered me to cancel these workouts for all Air Marshals because [appellant] was 

participating.” In her statement, S.L. also related that M.S. referred to appellant “as a bitch to the 

Special Agent in Charge.” She advised that M.S. and H.N. were misogynistic and bullied 

women together. S.L. noted, “It is my understanding [appellant] was charged with AWOL for 

being a few minutes late one day because she used the lavatory before swiping her access card.” 

She reported that a male coworker was gone for five hours yet he was not found to be absent 

without leave (AWOL). 

By letter dated August 22, 2013, OWCP requested that the employing establishment 

submit comments from a knowledgeable supervisor on the validity of the allegations and the 

evidence appellant submitted in support of her claim. 

In a September 12, 2013 response, M.D. related that to his knowledge appellant was not 

included in the Jeopardy Board. He further indicated that the Jeopardy Board was not the reason 

for her work partner’s death. M.D. denied that appellant was sexually harassed or that a 

coworker had thrown a ball at her. He advised that another person was chosen for the TISS 

position because that individual had not previously worked in a ground position. M.D. asserted 

that appellant asked to be transferred to a visible intermodal prevention and response (VIPR) 

position, and that both she and her supervisor were removed from VIPR during an investigation 

because she failed to timely report that he had insufficient ammunition in his magazine. He 

indicated that appellant had not been disciplined for being late, but instead she had been “put on 

notice that she was expected to arrive at work on time after management learned of her 

attendance issues. A review of her records indicated that she was late 10 times in a 30-day 

period from 1 to 17 minutes each time.” M.D. related that the 30 minutes AWOL was for when 

she left a meeting early without telling her supervisor. Management advised that appellant was 

not permitted to attend CrossFit during work hours. M.D. noted, regarding the allegation of M.S. 

harassing appellant during her mid-year performance review, that M.S.’s office had full length 

glass windows so the room was not dark as had been alleged and appellant had not told anyone 

that he swore or spit on her. Finally, he noted that she had received training and had met 

expectations on her performance appraisal. 

By decision dated October 16, 2013, OWCP denied appellant’s emotional condition 

claim finding that she had not established any compensable employment factors. 

On November 8, 2013 appellant requested a telephone hearing. By letter dated 

November 1, 2013, she requested that OWCP issue subpoenas for various individuals who had 

told her that they would not volunteer information relevant to her claim, but that they would be 

truthful under oath if required to testify. 
4

On April 15, 2014 appellant submitted additional evidence, including a copy of the 

Jeopardy Game Board which was in dispute by the employing establishment. The Jeopardy 

Game Board listed various categories including Treasure Hunter, Ted Bundy, Pickle Smokers, 

and Tin Men. 

On March 14, 2014 the Office of Personnel Management (OPM) approved appellant’s 

request for disability retirement. It found that she was disabled due to PTSD, major depressive 

disorder, bipolar disorder, generalized anxiety disorder, internal derangement of the right knee, a 

torn right medial meniscus, and right patella chondromalacia. 

On April 15, 2014 OWCP was provided a copy of the EEO complaint along with the 

settlement agreement and release wherein appellant waived her right to pursue other action and 

withdrew her complaint. Within the release form, appellant agreed not to discuss the agreement 

or settlement amount with “individuals other than her attorney, tax preparer, immediate family or 

as required by a court or government agency.” 

Appellant submitted a copy of a July 24, 2012 interoffice memorandum from Supervisor 

R.C. regarding an incident which had occurred in the gym on that same date. Supervisor R.C. 

reported that another air marshal B.S. had referenced VIPR and said, “[appellant] is now your 

problem.” In an interoffice memorandum from appellant to R.C., signed on August 2, 2012, 

appellant reported several other incidents where B.S. had referred to her as a “problem child” on 

July 24, 2012, admitted to using profanity, asked management if she had left for the day in order 

to get her in trouble, and threw a ball that hit her on the head. 

On August 15, 2012 appellant’s then supervisor, M.S., denied that he was angry during 

appellant’s performance review. He claimed that he had become upset when he told appellant 

that he was attaching a memorandum to her file because she had been insubordinate and AWOL 

and he also noted that she began to write on the evaluation and ignored him when he told her to 

stop. M.S. related that he did not raise his voice but was “calm and polite” as these events 

occurred. This meeting occurred on M.S.’s last day in office. 

In a September 13, 2012 memorandum, her then supervisor, R.C., advised that he had 

met with appellant to replace her mid-year performance review by M.S. (her former supervisor) 

with that of H.N. The attached mid-year performance review indicated that she had challenged 

H.N. for writing her up for wearing sneakers, for arguing loudly with her coworker, B.S., and 

because she was late between 4 and 17 minutes in the prior 30 days. Appellant was marked 

AWOL after changing her work hours without approval and leaving early without approval. It 

also noted that she was insubordinate and failed to attend a meeting. 

By letter dated December 5, 2012, J.C., a union representative, requested management 

remove the memorandum written by H.N. from her official personnel folder challenging the 

accuracy of the allegations contained therein. He also asserted that H.N. had altered data to 

show that appellant was late all but one out of 30 days from May 7 through June 6, 2012 and 

used this documentation to remove her from operations. J.C. claimed that in reality appellant 

was one minute late on June 5, 2012 and four minutes late on June 6, 2012 and was otherwise 

timely in reporting to work. He further asserted that H.N. required her to take AWOL status on 

June 6, 2012 and that such action was “unprecedented.” Finally, J.C. noted that management 

was making it very difficult to obtain information. 
5

In a memorandum to R.C. dated February 21, 2013, M.H., another federal air marshal 

and coworker of appellant, related that on or around July 23, 2012 M.S. was giving performance 

evaluations and he walked over and asked him to come to his office for his evaluation. 

However, when it was appellant’s turn for an evaluation M.S. yelled at her “to come in his 

office.” M.H. also related: 

“I didn’t think much of the tone at which [M.S.] used at first, until [M.S.] told 

[appellant] to shut the door. [She] requested to leave the door open then [M.S] 

shouted ‘shut the door.’ [Appellant] said a few other words that I could not hear 

and [M.S.] again told her to shut the door. After the meeting [she] came out and 

was visibly shaking. I asked if everything was ok and she stated ‘he was yelling 

at her and that she was scared.’” 

In a statement dated August 6, 2013, H.P., a coworker, related that he was appointed to 

work as a federal air marshal instructor at Orlando on March 5, 2007. He noted in his statement 

that “This was the first time I was told what the Jeopardy Game Board meant and what it was 

there for. I heard rumors that such a game existed and I even noticed it hanging on the wall prior 

to March 5th, 2007, however, when asked about it I was told I was [not] in the circle of trust yet 

and not to ask about it anymore.” H.P. related that before he accepted the position other 

instructors advised him to refuse the offer because of “illegal acts being committed within the 

training division” by management, “specifically retaliation and discrimination against the certain 

individuals that were not liked.” On March 7, 2007 he heard a coworker say “This comes from 

the top. [Appellant] is untouchable until further notice.” On March 9, 2007 H.P. attended a 

meeting with the topic of “how to falsify time sheets and training records” and was told that any 

staff member who took a stand against management would be terminated. H.P. learned that 

management had allegedly targeted appellant because of her EEO complaint and settlement. He 

related that coworkers T.F. and M.R. put appellant and 15 other air marshals on the Jeopardy 

Game Board, retaliated and discriminated against them, and called them “insurgents.” H.P. 

indicated that M.R. and T.F. created the Jeopardy Game Board. 

In a statement dated May 6, 2014, E.C., a retired coworker, related that he had worked 

with appellant from 2002 to 2013. He shared, “I often witnessed [appellant] being treated less 

favorably than her male counterparts. I witnessed supervisors [M.S.] and [R.C.] say that [she] 

did not belong in law enforcement because she was a female. I am also aware that [M.S.] had 

[her] removed from Operations because he did not like her because she had filed an Equal 

Employment Opportunity claim in the past.” 

At the May 8, 2014 telephone hearing, appellant related that she had requested subpoenas 

because the listed individuals would only provide information under oath. She asserted that M.S. 

sexually harassed her from December 2010 to August 2012. When she rebuffed him he found 

her AWOL when she was four minutes late, denied her request for annual leave submitted eight 

months in advance, refused to let her go to the gym, called her into a dark room, and called her a 

“bitch.” Appellant advised R.C. of the incident and that a coworker, B.S., threw a ball at her 

head, but he did nothing about the incident. 

Appellant reviewed the witness statements provided in support of her claim and noted 

that H.P. confirmed she was on the Jeopardy Game Board. She maintained that management 

falsely accused her of being late 29 out of 30 days and that her timesheets were altered by hand. 
6

Management used the erroneous times to remove her from her position. Appellant confirmed 

that she had settled an EEO claim in 2007 and had a pending EEO claim. Her attorney noted that 

she could not obtain a copy of the 2007 settlement agreement without an order. The hearing 

representative related that she would inform the employing establishment by copy of the hearing 

transcript that she wanted the EEO settlement agreement. Appellant related that she was 

removed from one position when she sent her supervisor an e-mail telling him that he had an 

empty bullet magazine. Management accused her of removing his bullets, then told her she 

should have immediately reported the empty magazine, and disciplined her by removing her 

from her position due to the incident. 

By decision dated August 14, 2014, an OWCP hearing representative affirmed the 

October 16, 2013 decision. She determined that appellant had not established any compensable 

employment factors. The hearing representative further denied appellant’s request for subpoenas 

because appellant had not sufficiently explained why the need for subpoenas for various 

individuals. 

On appeal appellant argues that she requires subpoenas to establish harassment and 

discrimination. She also asserts that she had established harassment and discrimination and 

questions why OWCP did not consider the medical evidence she submitted in support of her 

claim. 

LEGAL PRECEDENT 

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.2

 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 frustration from not being permitted to work in a particular environment or to hold a 

particular position.3

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.4 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.5 

In determining whether the employing establishment has erred or acted abusively, the Board will 

 2

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

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

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

ECAB 556 (1991). 

5 See William H. Fortner, 49 ECAB 324 (1998). 
7

examine the factual evidence of record to determine whether the employing establishment acted 

reasonably.6

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

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

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

determinative of whether such harassment or discrimination occurred.7 A claimant must 

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

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

unfair treatment occurred.8

 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.9

 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.10 

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.11 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.12 

OWCP procedures provide: 

“An employee who claims to have had an emotional reaction to conditions of 

employment must identify those conditions. The [claims examiner] must 

carefully develop and analyze the identified employment incidents to determine 

whether or not they in fact occurred and if they occurred whether they constitute 

factors of the employment. When an incident or incidents are the alleged cause of 

disability, the [claims examiner] must obtain from the claimant, agency personnel 

and others, such as witnesses to the incident, a statement relating in detail exactly 

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

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

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

9 See James E. Norris, 52 ECAB 93 (2000). 

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

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

12 Id.
8

what was said and done. If any of the statements are vague or lacking detail, the 

responsible person should be requested to submit a supplemental statement 

clarifying the meaning or correcting the omission.”13

OWCP regulations provide that an employer who has reason to disagree with an aspect of 

the claimant’s allegation should submit a statement that specifically describes the factual 

argument with which it disagrees and provide evidence or argument to support that position.14

ANALYSIS 

Appellant has not attributed her emotional condition to the performance of her work 

duties under Cutler. Instead, she attributed her condition to error and abuse by management in 

administrative actions and to harassment and retaliation by her supervisor, and coworkers. 

Regarding appellant’s allegations of error in administrative actions, in Thomas D. 

McEuen,

15 the Board held that an employee’s emotional reaction to administrative actions or 

personnel matters taken by the employing establishment is not covered under FECA as such 

matters pertain to procedures and requirements of the employer and do not bear a direct relation 

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

would attach if the facts surrounding the administrative or personnel action established error or 

abuse by employing establishment superiors in dealing with the claimant. Absent evidence of 

such error or abuse, the resulting emotional condition must be considered self-generated and not 

employment generated. In determining whether the employing establishment erred or acted 

abusively, the Board has examined whether the employing establishment acted reasonably.16

Appellant maintained that she failed to be selected for a position with TISS even though 

she was the highest ranked applicant. She also alleged that she was erroneously removed from a 

position in VIPR when she reported that her supervisor, K.F., went to an assignment with an 

empty ammunition magazine. As discussed, matters regarding work assignments and transfers 

are administrative matters and, absent a showing of error or abuse by the employing 

establishment, are not compensable employment factors.17 In a July 16, 2013 statement, S.L., a 

supervisor, related that appellant scored higher than a male coworker in her interview for a 

position with TISS, but that the lower-scoring male coworker was chosen instead. M.D. related, 

however, that management selected another individual for the TISS position because that person 

had not worked in a ground position. He also advised that she and K.F., her supervisor, were 

removed from VIPR during an investigation when she failed to timely inform management that 

K.F. had insufficient rounds in his magazine. Appellant has not submitted sufficient evidence to 

 13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997); 

see also A.K., Docket No. 13-79 (issued April 15, 2013). 

14 20 C.F.R. § 10.117(a); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, 

Chapter 2.800.7(a)(2) (June 2011) (in certain types of claims, such as a stress claim, a statement from the employing 

establishment is imperative to properly develop and adjudicate the claim). 

15 See supra note 4. 

16 See M.D., 59 ECAB 211 (2007); Richard J. Dube, 42 ECAB 916 (1991). 

17 See P.M., Docket No. 14-1625 (issued February 23, 2015); Lori A. Facey, 55 ECAB 217 (2004). 
9

show error or abuse by the employing establishment in failing to select her for the TISS position 

or in removing her from the VIPR position during an investigation. Therefore, she has not 

established a compensable employment factor relating to these two allegations. 

Appellant additionally alleged that in June 2012 H.N. falsely accused her of being late 29 

days out of 30. H.N. also found appellant AWOL for 30 minutes when she was one minute late. 

In response, M.D. related that appellant was from 1 to 17 minutes late 10 times during a 30-day 

period, and that she was found AWOL when she left a meeting early without notifying her 

supervisor. He indicated that she was “put on notice” rather than disciplined for being late. A 

statement regarding her mid-year performance review, however, indicates that on June 8, 2012 

H.N. determined that appellant was 4 to 17 minutes late for the prior 30 days. The employing 

establishment has not addressed the discrepancy between H.N.’s finding that she was late each 

day for the preceding 30 days in her mid-year performance review and M.D.’s finding that she 

was 1 to 17 minutes late 10 times in a 30-day period. In a letter dated December 5, 2012, J.C., a 

union representative, asserted that it appeared that H.N. altered appellant’s timesheet to show 

that she was late 30 days from May 7 through June 6, 2012. The Board finds that the record 

requires further development as to the discrepancies regarding the accusations of tardiness and 

being AWOL and as to the allegations that documentation was intentionally altered to support a 

disciplinary action. On remand OWCP should obtain further information from the employing 

establishment regarding whether H.N. erred in finding that appellant was late each day for a 30-

day period from May 7 through June 6, 2012 and obtain all documentation necessary to make a 

finding as to whether time records were altered by H.N., as alleged in the letter from the union 

representative on December 5, 2012, to support a disciplinary action. 

Appellant has primarily attributed her emotional condition to harassment and 

discrimination by male coworkers and managers for a period of 11 years. She related that in 

2006 she received a favorable EEO settlement based on her allegations of harassment, 

retaliation, and unfair labor practices. After the EEO settlement, appellant continued to 

experience harassment and retaliation necessitating a new EEO complaint. Individuals at her 

work location created a Jeopardy Game Board with categories representing employees. 

Appellant has proven that she was placed on the Jeopardy Game Board under the category of 

Treasure Hunter. She alleges this was because of her prior EEO settlement. Appellant 

maintained that her work partner committed suicide after being identified as a lesbian on the 

game board. She also argued that managers discriminated against her by refusing to allow her to 

attend CrossFit while male coworkers were allowed to attend. 

Harassment and discrimination by supervisors and coworkers, if established as occurring 

and arising from the performance of work duties, can constitute a compensable work factor.18 A 

claimant, however, must substantiate allegations of harassment and discrimination with probative 

and reliable evidence.19 Appellant submitted a copy of the Jeopardy Game Board, which 

included the category of Treasure Hunter. In an August 6, 2013 statement, H.P., a federal air 

marshal instructor, indicated that he was told before he began working at Orlando that 

management discriminated and retaliated against people that were not liked. He related that on 

March 7, 2007 an ASAC angrily informed the office that appellant was untouchable until further 

 18 T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006). 

19 C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006). 
10

notice. H.P. provided a supportive statement that management targeted her because of her EEO 

activity. He confirmed his understanding that appellant had been placed on the Jeopardy Game 

Board by two coworkers. 

In a statement dated May 6, 2014, E.C., a retired federal air marshal, related that 

management treated appellant unfavorably compared with male coworkers, and that M.S. and 

R.C. indicated that she did not belong in law enforcement because she was female. His 

statement further alleged that M.S. disliked appellant because of her prior EEO activity. S.L., a 

supervisor, related in her statement that H.N. and M.S. instructed her to cancel a CrossFit 

workout because appellant was participating with the men. While M.D. maintained that to his 

knowledge appellant was not on the Jeopardy Game Board, he did not specifically address or 

contradict H.P.’s statement that she was on the game board or comment on the supportive 

statements of E.C. or S.L. OWCP’s regulations provide that an employer who has reason to 

disagree with an aspect of the claimant’s allegation should submit a statement that specifically 

describes the factual argument with which it disagrees and provide evidence or argument to 

support that position.20 On remand, OWCP should request that the employing establishment 

review and comment on the statements from E.C., H.P., and S.L. and provide evidence 

supporting its position if it refutes any of the allegations contained in the statements. 

Appellant also submitted a July 13, 2007 EEO settlement document, in which she agreed 

not to discuss the settlement unless “required by a court or government agency.” She informed 

the OWCP hearing representative that she could not provide the settlement without a request by 

OWCP. The hearing representative indicated that she would request a copy from the employing 

establishment by information contained in the transcript. However, the employing establishment 

did not submit the EEO settlement into the record of the case. The Board notes that the type of 

information being sought is within the custody of the employing establishment and is unavailable 

to appellant pursuant to the terms of the settlement.21 On remand, OWCP should obtain a copy 

of the actual settlement from the employing establishment and any other relevant evidence 

regarding her allegations of harassment and retaliation. It should inform the employing 

establishment of the provisions of section 10.117(b) and the likely consequence of its repeated 

failure to submit the requested information upon request by OWCP.22 

Appellant also alleges that B.S. called her a “problem child,” used profanity, asked 

management if she had left to get her in trouble, and threw a ball at her. However, she has not 

submitted any evidence supporting these allegations and therefore she has not established 

compensable employment factors in regard to these allegations. 

Appellant further alleged that M.S., her supervisor from January 2011 until June 2012, 

sexually harassed her. Her allegations include that he called her into a dark room, yelled and spit 

on her, and called her a “bitch.” In a statement dated July 16, 2013, S.L. related that M.S. 

sexually harassed the females in the office and referred to appellant as a “bitch” to the ASAC. 

M.H. related that he witnessed M.S. yell at appellant to come into his office for her performance 

 20 20 C.F.R. § 10.117(a); see also L.B., Docket No. 13-552 (issued November 21, 2013). 

21 See Marco A. Padilla, 51 ECAB 202 (1999). 

22 See Alice F. Harrell, 53 ECAB 713 (2002). 
11

appraisal and shouted at her to shut the door. After the meeting he noted that she was shaking 

and told him that M.S. had yelled at her and frightened her. M.H. noted that he had told R.C. 

about the incident. In a statement dated August 15, 2012, M.S. notified H.N. that during 

appellant’s performance review he was polite and composed, but that appellant became upset 

when he told her that she was AWOL and insubordinate. He maintained that he did not raise his 

voice. M.D. advised that the windows to M.S.’s office were full length so that the room could 

not be dark. He denied that appellant was sexually harassed. M.D., however, did not discuss or 

in any manner refute the statements provided by witnesses M.H. and S.L. On remand, OWCP 

should request that the employing establishment review and discuss the statements of M.H. and 

S.L. and provide any rebuttal evidence from individuals with contemporaneous knowledge of 

appellant’s allegations. Following this and any further development as deemed necessary, 

OWCP shall issue a de novo decision.23 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of 

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

consistent with this decision of the Board.24

Issued: May 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 23 In view of the Board’s disposition of the merits, the issue of whether OWCP properly denied appellant’s 

request for subpoenas is moot. 

24 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.