United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Jackson, MS, Employer 

__________________________________________ 

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Docket No. 15-0411 

Issued: September 10, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 12, 2014 appellant filed a timely appeal from a September 15, 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 the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish an emotional 

condition in the performance of duty. 

FACTUAL HISTORY 

On September 21, 2013 appellant, then a 41-year-old secretary of office automation, filed 

an occupational disease claim alleging that she worked in a hostile environment. She stated that 

she had filed three Equal Employment Opportunity (EEO) complaints against her supervisor 

 1

 5 U.S.C. § 8101 et seq. 
2

Robert Wolak for discrimination and was forced to defend herself against employing 

establishment attorneys. Appellant asserted that she was harassed, bullied and deprived of 

compensation on several occasions. All of these events caused her stress. Appellant became 

aware of her condition and its relationship to her employment on February 1, 2012. She did not 

stop work. 

On September 30, 2013 OWCP asked appellant to submit additional evidence that 

included a detailed description of the work incidents that contributed to her claimed illness. It 

also requested that the employing establishment to comment on appellant’s statements. 

In a January 6, 2012 statement, appellant alleged that on April 15, 2010 a network chief 

information officer visited the employing establishment and advised during a staff meeting that 

everyone who wanted to be cross trained would be permitted to do so. In a February 11, 2013 

statement, she explained that on February 8, 2013 she notified Mr. Wolak that her time card had 

not been posted for the entire pay period, and that this had occurred several times causing errors 

in her time card and pay. Appellant stated that Mr. Wolak later responded that “We’re working 

on it; I got your email!” She allegedly requested that her time card should be posted daily and 

Mr. Wolak responded with what appellant described as a threatening, crazed look in his eyes, 

pointed at her, and stated “I don’t like your insubordination!” Appellant indicated that she had 

two pending EEO complaints against Mr. Wolak and felt her work environment was hostile, 

threatening and intimidating. In a November 5, 2013 statement, she alleged that in October 2007 

Mr. Wolak yelled at her about an e-mail he had instructed her to send. Appellant claimed that on 

July 30, 2013 a payroll technician and supervisor improperly placed her in leave without pay 

status even though she had leave to cover her absence. She noted that she had applied for the 

leave donor program and was approved, but when she returned in September 2013, she had 

nevertheless been placed in leave without pay status for 10 days. This greatly affected 

appellant’s finances. Appellant alleged that she asked to work overtime but was denied. She did 

acknowledge that the payroll error was corrected within two weeks. 

Paulette Rimpson, a supply technician, noted in an undated statement, that on June 14, 

2011 she had overheard a conversation between appellant and Mr. Wolak over coverage of the 

office for lunch. She stated that appellant asked Mr. Wolak what he intended to do and he 

responded “what are you going to do about it?” Appellant replied that it was not her 

responsibility to tell anyone to cover that desk and she was entitled to a lunch break. Mr. Wolak 

spoke to another coworker in the vicinity: “She’s yelling at me, I want you to write a report of 

contact.” A February 11, 2013 statement from Cynthia Culley, a coworker, alleged that on 

February 8, 2013 she observed a man from the same office approach appellant’s desk and point 

his finger at her in a threatening manner. 

In an e-mail dated September 20, 2013, Melody Link, a nurse manager, requested 

permission from Mr. Wolak to have appellant do overtime in her department. Mr. Wolak 

requested that Ms. Link send a formal memorandum requesting the change. He stated that his 

department was funded separately from Ms. Link’s department and he was unaware how funds 

could be transferred to cover this. Mr. Wolak inquired as to whether there was a part-time 

position into which appellant could be placed so she could be paid by Ms. Link’s department. 

In a November 12, 2013 request for reasonable accommodation, appellant stated that for 

many years she worked in a hostile environment of discrimination, harassment, bullying, unclear 
3

work assignments, and compensation deprivation. She noted that she was unable to perform the 

duties of her job. Appellant submitted the employing establishment’s policy regarding 

designation of timekeepers. She also submitted the employing establishment’s policy on EEO 

and unlawful discrimination. 

Appellant also provided several documents pertaining to an EEO complaint. In an 

undated EEO document, she stated that in March or April 2011 Mr. Wolak informed her twice 

that she could not take notes during an unscheduled staff meeting in which others took notes. 

Appellant asserted that on May 27, 2011 the assistant chief information officer announced that 

staff could leave 59 minutes early due to the Memorial Day holiday. She alleged that when she 

tried to confirm early dismissal, Mr. Wolak spoke to her sharply stating “Of course! Why 

wouldn’t it!” Appellant asserted that on June 14, 2011 she informed Mr. Wolak that she was 

going to lunch and inquired as to who would cover the desk and he replied “What are you going 

to do about it!” She indicated Mr. Wolak stated “Want to bet!” and later accused appellant of 

yelling at him. Additionally, on June 16, 2011 appellant learned that Mr. Wolak stated to a male 

coworker that he should never get a wife like her. 

During an April 5, 2013 EEO hearing, Vivian Brandon, a coworker, testified that she was 

present at a meeting in which Mr. Wolak asked appellant not to take notes. She noted that there 

were several incidents in which Mr. Wolak yelled at appellant or made negative comments about 

her. Ms. Brandon indicated that it was a common occurrence, but she could not recall the 

content of the statements or when they occurred. She noted being present in a meeting with Dale 

Nelson, Mr. Wolak’s supervisor, where he indicated that all employees would be able to cross 

train. Ms. Brandon noted appellant questioning Mr. Wolak about her job assignments on several 

occasions but she did not remember if Mr. Wolak responded. She witnessed Mr. Wolak respond 

to appellant in an abrupt manner when she asked questions in 2011. Ms. Brandon noted that she 

did not cross train and she was not aware of any technology specialists who cross trained. She 

noted that the staff meetings were recorded. Ms. Brandon further noted that she observed 

appellant yelling at her coworker including Ms. Stokes. She found that a lot of yelling went on 

at work and was more than she experienced in other jobs. 

During an April 4, 2013 EEO hearing, El Marco McNair, a coworker, testified that he 

recalled an incident where Mr. Wolak got upset, his tone and facial expression changed, when 

appellant informed him of work that needed to be done with time cards. He indicated that the 

environment was tense. Mr. McNair noted experiencing tense moments with Mr. Wolak and 

witnessing tense moments with Mr. Wolak and Tim Langford. He noted Mr. Wolak made a 

comment about appellant “something about I wouldn’t marry her or something like that. I don’t 

know the specifics of how he said it....” Mr. McNair recalled attending meetings in which 

appellant asked questions about the chain of command and Mr. Wolak “blew up” but he was not 

sure if it was directed at appellant or the whole group and he could not say it was hostile. When 

that happened, Mr. Wolak would tell appellant not to record that portion of the meeting. 

Mr. McNair indicated that he never heard Mr. Wolak make racially derogatory statements. 

Appellant also provided medical evidence. In a November 19, 2012 report, Dr. Courtney 

Bagge, a psychologist, noted seeing appellant on March 1 and 13, 2012 for work stress and 

anxiety. She diagnosed major depressive disorder, recurrent, moderate. 
4

In a December 4, 2013 decision, OWCP denied appellant’s claim for an emotional 

condition as the evidence did not support that appellant had established any compensable factors 

of employment. 

On July 21, 2014 appellant requested reconsideration.2

 She submitted a statement from 

Keith Moncure, a coworker, who confirmed that Mr. Wolak raised his voice in a staff meeting 

but he could not remember the content of the statement or when it occurred. Mr. Moncure 

contended that he worked in a hostile work environment, but could not address whether appellant 

had a threatening or tense relationship with Mr. Wolak. Mr. Moncure indicated that in a staff 

meeting management advised that staff could be cross trained and appellant inquired as to 

whether she could cross train. Management’s response was yes, but in what area was unclear. 

He indicated that Mr. Wolak had asked that certain information not be retained from the minutes. 

Mr. Moncure stated that he filed his first EEO complaint against Mr. Wolak in 2007, and that he 

had filed two EEO complaints relating to Mr. Wolak’s preselection of job candidates. 

Appellant submitted e-mails dated December 12, 2007 to Catherine Lutz regarding a final 

determination in an EEO complaint filed against Mr. Wolak. She submitted e-mails dated 

August 12 to December 10, 2013, detailing her leave issues. A November 18, 2013 e-mail to 

Mr. Wolak inquired as to why she was not paid for three hours when she had donated leave. In 

response, Mr. Wolak promised that he would look into the leave matter with the acting chief but 

that in his opinion the agency had used everything that had been donated to appellant. He further 

noted that he did not have authority to approve certain types of absences. 

By report dated March 20, 2014, Dr. Clyde Glenn, a Board-certified psychiatrist, noted 

that appellant should be moved to another work environment as the current environment was the 

source of her stress, anxiety, and depression. 

In a decision dated September 15, 2014, OWCP denied modification of the prior 

decision. It found that appellant had failed to establish any compensable work factors as the 

cause of her claimed condition. 

LEGAL PRECEDENT 

To establish an emotional condition in the performance of duty, a claimant must submit 

the following: (1) medical evidence establishing that he or she has an emotional or psychiatric 

disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused 

or contributed to the condition; and (3) rationalized medical opinion evidence establishing that 

the identified compensable employment factors are causally related to the emotional condition.3

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

somehow related to an employee’s employment. In the case of Lillian Cutler,

4

 the Board 

 2

 Appellant stated that no final decision had been made on her EEO claim but she also indicated that the judge 

found no evidence of discrimination. She did not provide copies of any final decisions or rulings in the matter. 

Appellant did submit copies of the employing establishment’s absence and leave policy. 

3 George H. Clark, 56 ECAB 162 (2004). 

4

 28 ECAB 125 (1976). 
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explained that there are distinctions as to the type of employment situations giving rise to a 

compensable emotional condition arising under FECA. There are situations where an injury or 

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

coverage under FECA.5

 When an employee experiences emotional stress in carrying out his or 

her employment duties, and the medical evidence establishes that the disability resulted from an 

emotional reaction to such situation, the disability is generally regarded as due to an injury 

arising out of and in the course of employment. This is true when the employee’s disability 

results from his or her emotional reaction to a special assignment or other requirement imposed 

by the employing establishment or by the nature of the work.6 Allegations alone by a claimant 

are insufficient to establish a factual basis for an emotional condition claim.7 Where the claimant 

alleges compensable factors of employment, she must substantiate such allegations with 

probative and reliable evidence.8

 Personal perceptions alone are insufficient to establish an 

employment-related emotional condition.9

 On the other hand the disability is not covered where 

it results from such factors as an employee’s fear of a reduction-in-force or his or her frustration 

from not being permitted to work in a particular environment or to hold a particular position.10

ANALYSIS 

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

incidents and conditions at work. OWCP denied her emotional condition claim because she had 

failed to establish any compensable employment factors. The Board must review whether these 

alleged incidents and conditions of employment are covered employment factors under the terms 

of FECA. 

The Board notes that appellant’s allegations do not pertain to her regular or specially 

assigned duties under Cutler.

11 Rather, she has alleged that she was exposed to a hostile work 

environment by her supervisor. 

Appellant made several allegations related to administrative and personnel actions. In 

Thomas D. McEuen,

12 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 employing establishment 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 factual circumstances surrounding the administrative 

 5 See Robert W. Johns, 51 ECAB 137 (1999). 

6 Supra note 4. 

7 J.F., 59 ECAB 331 (2008). 

8 M.D., 59 ECAB 211 (2007). 

9 Roger Williams, 52 ECAB 468 (2001). 

10 See supra note 4. 

11 See supra note 4. 

12 See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991). 
6

or personnel action established error or abuse by the 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.13

 Appellant alleged that on April 15, 2010 a network chief offered other employees an 

opportunity to cross train but that she had never been given the same opportunity. The Board has 

held that an employing establishment’s refusal to give an employee training as requested is an 

administrative matter, which is not covered under FECA unless the refusal constitutes error or 

abuse.14 Ms. Brandon, appellant’s coworker, testified that she was present at the meeting with 

Mr. Nelson who indicated that all employees would be able to cross train. She noted that she did 

not cross train and she was not aware of any technology specialists who cross trained. The 

Board finds that appellant has not offered sufficient evidence to establish error or abuse 

regarding training opportunities. The evidence does not establish that there was an established 

cross training program nor that the employing establishment acted unreasonably. 

Appellant contends that on several occasions her time card had not been posted for an 

entire pay period which caused errors in her pay, that on July 30, 2013 the payroll department 

improperly placed her in leave without pay status even though she had leave to cover the 

absence, and in November 2013 she was not paid for three hours of leave when leave had been 

donated to her. The Board notes that the handling of leave requests and attendance matters are 

generally related to the employment, they are administrative functions of the employing 

establishment and not duties of the employee.15 The Board finds that the employing 

establishment acted reasonably in this administrative matter. As noted, after appellant informed 

Mr. Wolak of the time card errors and that her time card should be posted daily, Mr. Wolak did 

work to resolve the issue. Appellant acknowledged that the payroll errors were corrected within 

two weeks. With regard to the donated leave, Mr. Wolak promised that he would look into the 

leave matter with the acting chief but informed her that the employing establishment believed 

that all the donated leave had been used. Appellant presented no corroborating evidence to 

support that the employing establishment erred in this matter. 

Appellant alleged that in March or April 2011 Mr. Wolak informed her that she could not 

take notes during an unscheduled staff meeting while others were taking notes. She indicated 

that on May 27, 2011 Ms. Stokes announced that staff could leave 59 minutes early due to the 

Memorial Day holiday and when appellant attempted to confirm that she was permitted to depart 

early Mr. Wolak spoke to her sharply stating “Of course! Why wouldn’t it!” Similarly, on 

June 14, 2011 appellant attempted to take a lunch break and inquired of Mr. Wolak as to who 

would cover the desk and he replied “What are you going to do about it!” The Board has found 

that an employee’s complaints concerning the manner in which a supervisor performs his duties 

as a supervisor or the manner in which a supervisor exercises his supervisory discretion fall, as a 

rule, outside the scope of coverage provided by FECA. This principle recognizes that a 

 13 See Richard J. Dube, 42 ECAB 916, 920 (1991). 

14 Lorraine E. Schroeder, 44 ECAB 323, 330 (1992). 

15 See Judy Kahn, 53 ECAB 321 (2002). 
7

supervisor or manager in general must be allowed to perform his duties, that employees will at 

times dislike the actions taken, but that mere disagreement or dislike of a supervisory or 

management action will not be actionable, absent evidence of error or abuse.16 The Board finds 

that appellant has not offered specific evidence to establish error or abuse. She presented no 

specific corroborating evidence, specific to date and time, to show that Mr. Wolak or the 

employing establishment acted unreasonably in these matters. 

Appellant asserted that on September 20, 2013 Ms. Link, a supervisor in another 

department, requested permission to have appellant work overtime in her department and 

Mr. Wolak would not permit it. The Board has held that denials by an employing establishment 

of a request for a different job, promotion or transfer are not compensable factors of employment 

as they do not involve the employee’s ability to perform her regular or specially assigned work 

duties but rather constitute her desire to work in a different position.17 The employing 

establishment has either denied these allegations or explained how it acted reasonably in these 

administrative matters. The record indicates that Mr. Wolak explained that his department was 

funded separately from Ms. Link’s department and he was unaware of how funds could be 

transferred to fund the overtime. He also inquired if Ms. Link could hire appellant in a part-time 

position so appellant could be paid by Ms. Link’s department. Appellant presented no 

corroborating evidence to establish that Mr. Wolak erred or acted abusively with regard to these 

allegations. She has not established administrative error or abuse in the performance of these 

actions and therefore they are not compensable under FECA. 

Appellant alleged that she worked in a hostile environment and was harassed. She noted 

filing three EEO complaints against Mr. Wolak asserting that he retaliated and discriminated 

against her. To the extent that incidents alleged as constituting harassment or a hostile 

environment by a manager are established as occurring and arising from appellant’s performance 

of her regular duties, these could constitute employment factors.18 However, for harassment to 

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

fact occur. Mere perceptions of harassment are not compensable under FECA.19 

The factual evidence fails to support appellant’s claim for harassment as a cause for her 

emotional condition. In the hearing transcript dated April 4, 2013, Mr. McNair recalled an 

incident where Mr. Wolak got upset when appellant informed him of a time card issue and when 

appellant asked a question about the chain of command. However, Mr. McNair was not sure if 

Mr. Wolak was directing his anger at appellant or the whole group and he could not say that the 

situation was hostile. Mr. McNair noted that he never heard Mr. Wolak make derogatory 

statements based on race. He indicated that he could not address whether appellant had a 

threatening or tense relationship with Mr. Wolak. Other witness statements are also not specific 

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

17 Donald W. Bottles, 40 ECAB 349, 353 (1988). See Robert Breeden, 57 ECAB 622 (2006) (an employee’s 

dissatisfaction with being transferred constitutes frustration from not being permitted to work in a particular 

environment or to hold a particular position and is not compensable). 

18 David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991). 

19Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a 

claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence). 
8

as to the time or place of any claimed harassing incidents or lack sufficient context to establish 

disparate treatment. The Board notes that there is insufficient evidence corroborating appellant’s 

charges that Mr. Wolak harassed her. Thus, appellant has not established a compensable 

employment factor under FECA with respect to the claimed harassment. 

To the extent that appellant alleged that Mr. Wolak threatened, yelled and verbally 

abused her, the Board has recognized the compensability of verbal abuse and threats in certain 

circumstances. This does not imply, however, that every statement uttered in the workplace will 

give rise to coverage under FECA.20 The Board finds that the facts of this case do not support 

any specific incidents of verbal abuse. Appellant claimed that in October 2007 Mr. Wolak yelled 

at her regarding an e-mail he instructed her to send but there is no evidence confirming that a 

specific incident occurred at a particular time and place. Appellant submitted a witness 

statement from Ms. Culley who claimed that on February 8, 2013 she witnessed a man approach 

appellant’s desk and pointed his finger at her in a threatening manner. However, Ms. Culley did 

not identify the individual speaking to appellant. Similarly, Ms. Brandon noted several incidents 

in which Mr. Wolak yelled at appellant and made negative comments but she could not recall the 

content of the statements or when they occurred. Ms. Brandon further noted that she also 

observed appellant yelling at coworkers, including Ms. Stokes. She indicated that there was a lot 

of yelling in the workplace.21 Appellant alleged that Mr. Wolak stated to a male coworker that 

he should never get a wife like appellant. Mr. McNair noted that Mr. Wolak made a comment 

stating “something about I wouldn’t marry her or something like that” but he indicated that he 

did not know the specifics of how it was stated or when the exchange took place. The Board 

finds that the facts of the case do not support any specific incidents of verbal abuse or threats. 

Appellant provided no corroborating evidence, or witness statements to establish her allegations 

at a particular time and place.22 There is no corroborating evidence to support that any verbal 

interaction with appellant by Mr. Wolak rises to the level of a compensable employment factor.23

Consequently, appellant has not established her claim for an emotional condition as she 

has not attributed her claimed condition to any compensable employment factors.24 She may 

submit new evidence or argument with a written request for reconsideration to OWCP within one 

year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 

10.607. 

On appeal, appellant reiterates her allegations, asserting that she has established error or 

abuse on the part of the employing establishment. As explained, the Board finds that she has not 

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

21 See Joe M. Hagewood, 56 ECAB 479 (2005) (without a detailed description of the specific statements made, a 

compensable employment factor was not established; the mere fact a supervisor or employee may raise his voice 

during the course of a conversation does not warrant a finding of verbal abuse). 

22 See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where 

appellant did not submit evidence substantiating that such incidents actually occurred). 

23 See Judy L. Kahn, supra note 15. 

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

evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992). 
9

established her claim for an emotional condition as she has not factually established any 

compensable employment factors. 

CONCLUSION 

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

condition in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the September 15, 2014 decision of Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 10, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board