United States Department of Labor

Employees’ Compensation Appeals Board 

___________________________________________

K.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Washington, DC, Employer 

___________________________________________

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Docket No. 15-0418 

Issued: August 19, 2015 

Appearances: Case Submitted on the Record 

Stephen V. Hunt, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 15, 2014 appellant, through his representative, filed a timely appeal from a 

September 18, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employee’ 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 issue is whether appellant has met his burden of proof to establish that he sustained 

an emotional condition in the performance of duty. 

FACTUAL HISTORY 

On December 20, 2013 appellant, then a 67-year-old equal employment opportunity 

(EEO) and alternative dispute resolution specialist, filed an occupational disease claim alleging 

that on October 15, 2012 the employing establishment’s “zero tolerance policy” was violated 

when his coworker humiliated, threatened, bullied, and subjected him to a hostile work 

                                                             1

 5 U.S.C. § 8101 et seq.
2

environment. He alleged that he sustained extreme stress. Appellant explained that his claim 

was not filed earlier, as he expected that the violation would have been investigated internally, 

but that did not occur. He stopped work on October 16, 2012. 

In an October 15, 2012 statement, appellant indicated that on at approximately 12:55 p.m. 

on that day, while he was in the copy room across from his office, the coworker came to his 

office and stated in a loud voice: “I WANT YOU TO KNOW I AM NOT NO MOTHER 

F**KING CAROL OR SHARON, AND WILL NOT PUT UP WITH YOUR BULL**IT. YOU 

KEEP SENDING THESE MOTHER F**KING EMAIL AND I TOLD YOU THIS WAS A 

LAST MINUTE SITUATION.” He indicated that he responded, “Mike, are you kidding?” 

Appellant noted that the coworker walked off toward his office and returned, repeating his 

statement and using profanity. He stated that he told his coworker that he was out of line and 

could not talk to him that way using profanity. Appellant noted that he asked his coworker if he 

“could read?” He related that his coworker then responded: “yes mother f**ker I can read, you 

keep hiding behind e[-]mails.” Appellant alleged that he and his coworker stated nothing else 

and appellant went to his office to send an e-mail to his managers. He indicated that the contents 

of his e-mail were true but were not verbatim as the incident occurred so swiftly. 

In an October 15, 2012 statement, the coworker explained that he had sent an e-mail to 

appellant and another employee invites them to a surprise Bosses Day luncheon for their bosses. 

He explained that he walked down the hallway and into the copier room with appellant. The 

coworker told appellant that they were right down the hall and indicated that they could talk to 

each other without having to go back and forth with e-mails. He explained that he told appellant 

that, even with simple things, appellant found negativity in everything and everyone and 

everything rubbed him the wrong way. The coworker’s statement noted that appellant responded 

to the e-mail and remarked that it was untimely. He explained that he had notified appellant 

about the surprise lunch as soon as possible. The coworker stated that, at that point, he walked 

out of the copier room toward his office. However, he turned around and returned to appellant. 

The coworker admitted that he stated: “as far as that bull**it with you and [Carol Wafford], I 

[am] not [Ms. Wafford], I do n[o]t know what [i]s going on.” He advised that appellant stated: 

“[D]on’t talk to me like that. Don’t use profanity with me.” The coworker stated that he 

apologized and told appellant that he “always felt like you and I were friends and can talk. What 

is it?” The statement reports that appellant stated he “was going to call Carol.” 

In a December 26, 2013 statement, appellant related that on October 15, 2012, the 

coworker stepped toward him with his right fist clenched and his veins bulging from his neck. 

Appellant alleged that the coworker pointed a finger towards him and exclaimed: “I AM 

GOING TO GET YOU.” He noted that he reported the incident to the employing establishment, 

but no communication was received from any employing establishment law enforcement 

personnel. Appellant stated that he was veteran with 38 years of service and was a model 

employee at the employing establishment. Appellant’s job duties included addressing allegations 

of discrimination against the employing establishment and working to achieve amicable dispute 

resolutions at the lowest levels. He related that he frequently expressed a dissenting voice 

against the ineptness of the many managers and that there was an “effort, through conspiracy to 

silence” him. Appellant alleged that the employing establishment ignored the zero tolerance 

policy and rewarded the coworker with a promotion to manager and assigned him to supervise 

appellant. He termed this “a joke.” Appellant argued that everyone should be treated equally 

and fairly. He asserted that, on the date in question, the coworker came to his work area with 
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premeditated intent. Appellant noted that the coworker, although an acting manager at times, 

was not a manager at the time of the incident. He repeated that he was terrified and immediately 

reported the incident to the employing establishment and to the employing establishment police. 

Appellant alleged that the employing establishment engaged in “protectionism of one of their 

crony.” He stated that he sought medical care on October 18, 2012. 

OWCP received a copy of the October 15, 2012 e-mail correspondence pertaining to the 

invitation to attend a Bosses Day Luncheon and the ensuing conversation between appellant and 

the coworker with regard to the timeliness of the invitation. 

An October 15, 2012 employing establishment police incident report revealed that a call 

was made by appellant in regard to the aforementioned incident described by him. Appellant 

noted that he was threatened and or assaulted by his coworker, who denied that he had threatened 

appellant. The coworker denied that he used the words “Mother F**king or Bull**it” toward 

appellant. A threat assessment intake form was also completed and the coworker was instructed 

by management to keep a physical distance from appellant pending the outcome of the 

investigation. Official discussions were recommended for both employees regarding appropriate 

workplace behavior and how to handle conflicts. 

In January 16, 2014 letters, OWCP requested additional factual and medical evidence 

from appellant and the employing establishment was asked to comment on the allegations. 

In a February 5, 2014 response, Dwight David Plybon, an employing establishment 

manager, challenged appellant’s statement. He asserted that appellant had embellished his 

statement. Mr. Plybon noted that the original claim did not mention anything about the coworker 

having his fist clenched, or a vein bulging from his neck, or turning toward appellant, pointing 

his finger and saying “I am going to get you.” He noted that the coworker denied appellant’s 

allegations. Mr. Plybon related that, after the October 15, 2012 incident, appellant used two days 

of sick leave and returned to work on October 18 and continued to work until October 24, 2012. 

He questioned why, despite asserting that he was “overwhelmed and terrified” and “stressed,” 

appellant worked four days before he went out on sick leave and waited over a year to file his 

claim. Furthermore, Mr. Plybon noted that appellant had entered the employing establishment 

12 times after October 24, 2012.2

 He denied that management failed to investigate the incident. 

Mr. Plybon explained that a threat assessment intake form was completed and a threat 

assessment team (TAT) conducted an inquiry into the incident. He noted that they determined 

that there was no credible evidence of a threat on February 5, 2013. Appellant was informed 

that, upon his return to work, management would conduct a conflict resolution meeting with him 

and his coworker. On May 23, 2013 Ms. Wafford again wrote to appellant and explained the 

outcome of the TAT inquiry. Copies of her letters to appellant, the coworker’s statement, and 

the forms were attached. 

By decision dated February 28, 2014, OWCP denied the claim finding that appellant 

failed to establish a compensable employment factor. 

On March 3, 2014 OWCP received an undated statement from appellant. Much of the 

information was repeated. Appellant reiterated that he was involved in a verbal attack/altercation 

                                                             2

 Copies of Mr. Plybon’s access records were provided. 
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over his tasks, duty, and assigned expectations. He argued that, at that time, the coworker, did 

not have supervisory responsibility or authority over him, but expressed the expectation that he 

attend the luncheon. Appellant noted that, after the encounter with his coworker, he voluntarily 

changed his work shift to avoid contact. He reported that, subsequent to the attack, he felt the 

need to seek medical assistance. Appellant argued that his coworker was promoted to a manger 

because of his inappropriate behavior, despite his verbal threat and assault. He stated that his 

claim of threat, intimidation, bullying, and hostile work environment were not investigated, and 

have been virtually ignored. Appellant alleged that he was disappointed, but not surprised that 

management, despite being made aware of their obligation to ensure the safety of “all” 

employees, had ignored the situation at hand. He argued that the verbal altercation on 

October 15, 2012, was an assault intended to cause physical and emotional harm. 

With his statement, appellant submitted a February 28, 2014 report from Dr. Anthony 

Moore, Board-certified in psychiatry and neurology. Dr. Moore stated that on October 18, 2012, 

appellant was “targeted in a bullying incident” by his coworker. He reported the history of the 

incident as related by appellant and diagnosed post-traumatic stress disorder secondary to the 

employment incident and chronic pain and bipolar disorder. 

On March 22, 2014 appellant requested a review of the written record. On May 14, 2014 

appellant’s representative argued that appellant’s post-traumatic disorder was aggravated by the 

work incident. He asserted that the work incident that occurred was a “triggering event” which 

caused a “reawakening” or exacerbation of his symptoms. The representative also asserted that 

appellant’s case was similar to the personal comfort doctrine and alleged that appellant’s 

personal space was invaded. He argued that the police report confirmed that the event occurred. 

The representative argued that the emotional condition was based upon how the 

employee/claimant interpreted the event and based upon the employee’s experiences. 

By decision dated September 18, 2014, OWCP denied modification of its February 28, 

2014 prior decision. 

LEGAL PRECEDENT 

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

related to an employee’s employment. There are situations where an injury or 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 regular or specifically assigned duties or to a requirement imposed by the employment, the 

disability comes within the coverage of FECA. 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.3

Appellant has the burden of establishing by the weight of the reliable, probative, and 

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

                                                             3 See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 

28 ECAB 126 (1976). 
5

adversely affected by employment factors.4

 This burden includes the submission of a detailed 

description of the employment factors or conditions, which appellant believes caused or 

adversely affected the condition or conditions, for which compensation is claimed.5

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 the physician when 

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

factors of employment and may not be considered.6 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 the 

matter establishes the truth of the matter asserted, OWCP must base its decision on an analysis of 

the medical evidence.7

 

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

employment, are administrative functions of the employing establishment rather than the regular 

or specially assigned work duties of the employee and are not covered under FECA.8

 Where the 

evidence demonstrates that the employing establishment either erred or acted abusively in 

discharging its administrative or personnel responsibilities, such action will be considered a 

compensable employment factor.9 A claimant must support his or her allegations with probative 

and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.10 

ANALYSIS 

Appellant alleged that work factors caused an emotional condition. OWCP denied his 

claim on the basis that no compensable factors had been established. The Board must review 

whether the allegations are sufficient to establish compensable factors under FECA. The Board 

finds that appellant has not established a compensable factor of employment. 

Appellant has not attributed his emotional condition to the regular or specially assigned 

duties of his position as an EEO and alternative dispute resolution specialist. Therefore, he has 

not alleged a compensable factor under Cutler.

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                                                             4 Pamela R. Rice, 38 ECAB 838, 841 (1987). 

5 Effie O. Morris, 44 ECAB 470, 473-74 (1993). 

6 See Norma L. Blank, 43 ECAB 384, 389-90 (1992). 

7 Id.

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

9 Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, supra note 3. 

10 Roger Williams, 52 ECAB 468 (2001). 

11 See Lillian Cutler, supra note 3. 
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Appellant also 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 

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

The crux of appellant’s claim stems from an incident in which he alleges that he was 

verbally abused by his coworker on October 15, 2012 because he received late notification 

related to a surprise Bosses Day luncheon. Appellant asserted that the employing establishment 

investigation of this incident was inadequate. He alleged that on October 15, 2012, his coworker 

yelled at him and verbally abused him. At that time, appellant presented a detailed statement and 

noted that on that day, the coworker came to appellant’s office and spoke loudly and profanely 

about the luncheon. He told his coworker that he was out of line and not to use profanity. In his 

statement, the coworker explained that the incident occurred after he sent a last minute e-mail to 

appellant and another coworker to invite them to a surprise luncheon for their bosses. He noted 

that he told appellant that they could talk to each other at the lunch and questioned why appellant 

found negativity in everything. The coworker explained that appellant was told about the 

luncheon as soon as possible. He further noted that he used the word “bullshit” to appellant, but 

otherwise denied using any profanity and stated that he immediately apologized when appellant 

objected to the profanity. In a December 26, 2013 statement, more than a year after the incident, 

appellant asserted that the coworker actually stepped towards him on October 15, 2012 with his 

right fist clenched and his veins bulging from his neck and pointed a finger toward him and 

stated that he was going to “get” appellant. 

The Board has recognized the compensability of verbal abuse in certain circumstances. 

This does not imply, however, that every statement uttered in the workplace will give rise to 

coverage under FECA.14 The Board notes that the only profanity that both parties acknowledge 

is the word “bull**it.” The coworker denied using any other profanity and claims he apologized 

to appellant. Appellant has not provided any corroborating evidence to support his allegation or 

that his coworker threatened to “get” him. The record reflects that a police report was made and 

the employing establishment investigated the incident without finding that appellant’s version of 

greater profanity or threatening demeanor was corroborated. Appellant has not shown that the 

“bull**it” remark, in the context, rose to the level of verbal abuse or otherwise fell within the 

coverage of FECA.15 The Board finds that his emotional reaction to the coworker’s behavior 

                                                             12 See Thomas D. McEuen, supra note 3. 

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

14 See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, 42 ECAB 783 (1991). 

15 See Denise Y. McCollum, 53 ECAB 647 (2002) (where appellant’s supervisor told her that she was full of “piss 

and vinegar,” appellant did not show how this comment, in the context in which it was made, rose to the level of 

verbal abuse or otherwise fell within the coverage of FECA). 
7

must be considered self-generated in that it resulted from his perceptions regarding his 

coworker’s actions.16 

With regard to appellant’s assertions that the employing establishment’s investigation of 

the October 15, 2012 incident was inadequate, the Board notes that investigations are an 

administrative function of the employing establishment. They do not involve an employee’s 

regular or specially assigned employment duties are not considered to be an employment factors 

where the evidence does not disclose error or abuse on the part of the employing establishment.17 

Although appellant has alleged that the employing establishment protected the coworker and 

sought to silence him, he has not submitted any corroborating evidence that the employing 

establishment’s investigation was in error. He did not establish a compensable employment 

factor regarding this administrative matter. 

The Board also notes that appellant alleges that he was passed over for a promotion 

because of comments that the coworker had been protected during the investigation. Denials by 

an employing establishment of a request for a different job, promotion, or transfer are not 

compensable factors of employment absent a showing of error or abuse as they do not involve 

the employee’s ability to perform his or her regular or specially assigned work duties, but rather 

constitute his or her desire to work in a different position.18 There is no evidence to support a 

finding that the actions of the employing establishment were erroneous or abusive. 

Appellant alleged that the actions of the coworker subjected him to a hostile work 

environment. He reports that he was humiliated, threatened, intimidated, and bullied by his 

coworker in violation of the employing establishment’s zero tolerance policy. However, 

appellant has not submitted sufficient evidence to establish harassment or a hostile work 

environment. Mere perceptions of harassment alone are not compensable under FECA.19 

Another coworker in his statement also provided no support for appellant’s assertions that he was 

unfairly treated. The employing establishment and its police investigated the matter and offered 

no basis to support that appellant was harassed by the employing establishment. The Board finds 

that there was no evidence to support a hostile environment or any type of harassment or 

retaliation and that appellant has not submitted sufficient evidence to establish an employment 

factor. 

As appellant has not established a compensable employment factor, it is not necessary to 

address the medical evidence.20

On appeal, appellant’s representative asserted that the employing establishment and 

OWCP made a judgment call on the validity of one statement over another. He also generally 

referred to various events and the perceptions of different individuals. Additionally, the 

                                                             16 See David S. Lee, 56 ECAB 602 (2005). 

17 Beverly A. Spencer, 55 ECAB 501 (2004). 

18 Hasty P. Foreman, 54 ECAB 427 (2003). 

19 Ruthie M. Evans, 41 ECAB 416 (1990). 

20 Garry M. Carlo, 47 ECAB 299 (1996). See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992). 
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representative argued facts not found in the record. It is appellant’s burden to establish his claim. 

He cited to several cases decided by the Board dealing with the issue of verbal abuse and noted 

that in some of those claims, the Board found verbal abuse. These opinions did not help 

appellant establish what is a factual burden. 

Appellant 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. 

CONCLUSION 

Appellant did not meet his burden of proof to establish that he sustained an emotional 

condition in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the September 18, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 19, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board