United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.S., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

STATION, Norfolk, VA. Employer 

__________________________________________ 

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Docket No. 14-754 

Issued: September 2, 2014 

Appearances: Case Submitted on the Record

Laura A. O’Reilly, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On February 20, 2014 appellant, through his attorney, filed a timely appeal of the 

September 6, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) 

denying his emotional condition claim. Pursuant to the Federal Employees’ Compensation Act1

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this 

case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he sustained an 

emotional condition while in the performance of duty. 

On appeal, counsel contends that OWCP’s decisions were based on incorrect findings of 

fact and conclusions of law. She asserts that the unsworn statements of management officials do 

not outweigh appellant’s hearing testimony, which establishes that a December 10, 2012 yelling 

incident occurred as alleged. Counsel further asserts that the hearing representative did not 

consider the history provided by appellant in finding no hostile work environment. She contends 

 1

 5 U.S.C. § 8101 et seq.
2

that the hearing representative incorrectly determined that appellant played an active role in 

creating the December 10, 2012 incident. 

FACTUAL HISTORY 

On December 10, 2012 appellant, then a 44-year-old electrician, filed a traumatic injury 

claim alleging that he suffered from extreme anxiety due to a hostile work environment that date. 

He was sitting in a cubicle belonging to Rachel Scott, waiting to talk to Robert Sanderlin, his 

supervisor, who was in a meeting with Richard S. Banks, a production manager, and Randy B. 

Ives, a superintendent. Appellant alleged that Mr. Banks used profane language and yelled at 

him to get out of the cubicle belonging to Ms. Scott, Mr. Banks’ assistant. He responded that 

Mr. Banks could not tell him where to sit. Appellant stated that Mr. Banks threatened to write 

him up if he did not leave. He got out of Ms. Scott’s chair and told Mr. Banks that he could 

write him up. Appellant became humiliated and shaken when Mr. Banks yelled at him. He felt 

worse after hearing Mr. Banks, Mr. Sanderlin, Mr. Ives and Darren Davis, a superintendent, 

laughing about the incident. Appellant alleged that Mr. Ives told a coworker to stay away from 

appellant because he had been recording people. He stated that he had recorded conversations to 

prove that Mr. Banks and company had discriminated against him and created a hostile 

environment. Following the December 10, 2012 incident, appellant requested leave and left 

work. 

By letter dated January 2, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish his claim. It requested that he submit additional factual and medical 

evidence. OWCP also requested that the employing establishment submit medical evidence if 

appellant was treated at its medical facility. 

In a December 19, 2012 statement, Kellie E. Morrow, an employee, related that on 

December 10, 2012 appellant asked her if he could sit in Ms. Scott’s cubicle to wait for 

Mr. Sanderlin to talk to him about not getting approved for an award. Ms. Morrow stated that 

Mr. Banks came storming out of an office and started yelling profanities at appellant and telling 

him to return to the shop where he belonged. Mr. Banks told appellant that he was sitting in 

someone’s personal space and ordered him to leave or get written up. Ms. Morrow stated that 

appellant walked toward the shops and calmly told Mr. Banks to write him up. She could tell he 

was upset by Mr. Banks’ tone and embarrassed by his outburst. Ms. Morrow related that, once 

the office door was closed, she could hear Mr. Sanderlin, Mr. Banks, Mr. Ives and Mr. Davis 

talking and laughing loudly about the incident. Appellant returned after the meeting adjourned 

and gave Mr. Sanderlin a leave slip. Ms. Morrow stated that she was very nervous because it 

seemed a hostile work environment had been created for no apparent reason. She stated that 

Mr. Banks’ tone of voice was very demeaning and cold. Ms. Morrow had never seen him that 

angry before. 

In a December 17, 2012 progress note, Donna M. Paris, a licensed clinical social worker, 

stated that appellant remained anxious and worried. Appellant was worried about going to work 

to see Mr. Sanderlin about his request for leave. 

In medical records dated April 19 and December 17, 2012 and January 7, 2013, 

Dr. Patricia Y. King, an attending psychiatrist, advised that appellant had major depressive 
3

disorder due to a hostile work environment. She addressed his work capacity and physical 

restrictions. 

By letter dated January 29, 2013, the employing establishment challenged appellant’s 

claim, contending that he had not established that the December 10, 2012 incident occurred as 

alleged. 

In a December 18, 2012 e-mail, Mr. Davis stated that he was in Mr. Banks’ office on 

December 10, 2012. When Mr. Banks saw appellant sitting at Ms. Scott’s desk, he told him to 

wait in the shop. Appellant responded that Mr. Banks could not tell him where to sit. Mr. Banks 

explained to appellant that he was not sitting in his own workstation and that Ms. Scott had 

items/articles of importance that should not be disturbed. He gave appellant a direct order to 

wait in the shop for his supervisor. Mr. Davis stated that appellant mumbled something that was 

inaudible to him. 

In a January 24, 2013 letter, Paul Hodges, a supervisor, related that he was in his office 

on December 10, 2012 when he heard a commotion a few cubicles away. He saw appellant walk 

away and make a profane comment to Mr. Banks. 

In a January 25, 2013 statement, Mr. Sanderlin related that he was in a meeting with all 

the superintendents in Mr. Banks’ office on December 10, 2012 when Mr. Banks asked Mr. Ives 

to step outside his office. Mr. Ives saw appellant sitting in Ms. Scott’s cubical which was located 

next to Mr. Banks’ office. Mr. Banks left his office and told appellant that he could not sit there 

because it was another person’s space and contained personnel belongs. He instructed appellant 

to wait in the shop to talk to Mr. Sanderlin. Appellant refused to leave the cubical and responded 

that Mr. Banks could not tell him where to sit. After Mr. Banks asked appellant to move for the 

third time, he left the room. Mr. Sanderlin stated that he could not see Mr. Banks and appellant, 

but he did not hear Mr. Banks talk loudly or in an inappropriate manner to appellant. 

In an undated letter, Mr. Banks related that on December 10, 2012 he instructed appellant 

not to sit in Ms. Scott’s cubical as it was not assigned to him and it contained sensitive 

information. He refused to leave. Mr. Banks stated that appellant’s demeanor and tone were 

disrespectful, rude and borderline aggressive when appellant responded that he could not tell him 

where to sit. He gave appellant a direct order to leave the cubicle and to please wait for 

Mr. Sanderlin in the shop. Appellant got up and left. While leaving Mr. Sanderlin’s office a few 

minutes later, he called Mr. Banks a profane name. Mr. Banks contended that he was not rude 

and did not display an aggressive posture or tone towards appellant. He simply did not want 

appellant sitting in employees’ work spaces for no reason. 

In a January 29, 2013 e-mail, Mr. Ives stated that he was in Mr. Banks’ office for a 

regular staff meeting with Mr. Sanderlin and Mr. Davis on December 10, 2012. Their 

conversation stopped and Mr. Ives opened the door to see if their conversation was being 

overheard by any employees. Mr. Ives saw appellant sitting in Ms. Scott’s cubicle, which was 

located near Mr. Banks’ office. Mr. Banks, in a nonaggressive tone, instructed appellant not to 

sit there and to go into the shop. Mr. Ives stated that it was very obvious that appellant became 

perturbed when he told Mr. Banks that he could sit where he wanted to sit. Mr. Banks again 

asked appellant to leave and wait in the shop area or he would write him up. In a loud voice, 
4

appellant told Mr. Banks to write him up. He then slowly left the office. Mr. Ives stated that he 

could not believe how Mr. Banks remained so calm because appellant’s voice, attitude and 

demeanor made him mad. He contended that Mr. Banks acted very professionally and appellant 

acted like a jerk. Mr. Ives related that the episode was not loud or involved cursing. He had 

never heard Mr. Banks be loud or verbally abusive towards appellant. Mr. Ives related that 

Mr. Banks was friendly or professional towards appellant. 

In a February 4, 2013 decision, OWCP denied appellant’s claim, finding that the weight 

of the evidence did not establish that the December 10, 2012 incident occurred as alleged. It 

found that the medical evidence did not establish that he sustained a diagnosed medical condition 

causally related to an accepted employment factor. 

On February 11, 2013 appellant requested an oral hearing before an OWCP hearing 

representative and submitted medical evidence. 

In progress notes and a letter dated May 10, 2012 to February 13, 2013, Dr. King advised 

that appellant had anxiety and depression symptoms related to a hostile work environment. He 

also addressed appellant’s disability for work. 

In a January 30, 2013 progress note, Ms. Paris indicated that appellant was off work, but 

continued to receive calls from the employing establishment to come into work to address 

additional paperwork. She stated that he was not looking forward to returning to work. 

At the June 17, 2013 oral hearing, appellant testified that on December 9, 2012 

Ms. Sanderlin advised him that he was not going to receive a spot award for work performance 

because Mr. Banks had decided not to give it to a light-duty employee.2

 On December 10, 2012 

he wanted to talk to Mr. Sanderlin regarding this matter. Appellant reiterated his allegations 

regarding the incident on that date, Mr. Ives’ actions and his reaction to the incident. He testified 

that Mr. Banks discovered that appellant had recorded their conversations over the past two years 

to establish that he was being discriminated against. Appellant stated that he had filed an Equal 

Employment Opportunity (EEO) complaint against Mr. Banks and Mr. Ives which was at the 

hearing stage. 

In a September 6, 2013 decision, an OWCP hearing representative affirmed the 

February 4, 2013 decision. She found that the evidence was sufficient to establish that appellant 

was sitting at a cubicle outside Mr. Banks’ office on December 10, 2012 when directed to leave 

the office and return to the shop. Mr. Banks informed appellant that he should not be sitting in 

someone else’s cubicle. The hearing representative also found that the evidence was insufficient 

to establish that appellant was verbally abused by Mr. Banks. She determined that appellant was 

an abusive party and active participant in the December 10, 2012 incident. The hearing 

representive found that it was not necessary to address the medical evidence as he failed to 

establish a compensable employment factor. 

 2

 The record indicates that appellant had filed prior claims with OWCP. 
5

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 FECA.7 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). 
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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 

Appellant alleged that he sustained an emotional condition as a result of several actions 

by his supervisors. OWCP denied his emotional condition claim on the grounds that he did not 

establish any compensable employment factors. The Board must, thus, initially review whether 

the 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 his regular or 

specially assigned duties under Cutler.

12 Rather, appellant has alleged harassment and 

discrimination and error or abuse in administrative matters on the part of his supervisors. 

Appellant contended that on December 10, 2012 Mr. Banks used profane language and 

yelled at him to get out of Ms. Scott’s cubicle. He further contended that Mr. Banks threatened 

to write him up if he failed to do so. Appellant alleged that Mr. Banks, Mr. Ives, Mr. Sanderlin 

and Mr. Davis laughed about the December 10, 2012 incident. The statement from Ms. Morrow 

indicated that on December 10, 2012 she witnessed Mr. Banks yell profanities at appellant when 

he ordered him to get out of Ms. Scott’s cubicle and to return to the shop. She also witnessed 

him threaten to write appellant up if he failed to do so. Ms. Morrow stated that Mr. Banks’ tone 

of voice was very demeaning and cold. She described appellant’s reaction to this incident and 

stated that she became nervous that Mr. Banks’ actions created a hostile environment. The 

statements of Mr. Banks, Mr. Sanderlin and Mr. Ives related that Mr. Banks did not raise his 

voice and handled the situation in a professional manner. Mr. Ives stated that he had never heard 

Mr. Banks speak loudly or verbally abuse appellant. Mr. Banks, Mr. Ives, Mr. Davis and 

Mr. Hodges related that appellant was rude, disrespectful and nearly aggressive when he loudly 

stated with profane language that Mr. Banks could not tell him where to sit. Mr. Banks also 

stated that appellant called him a profane name as he was leaving Mr. Sanderlin’s office. 

Appellant acknowledged that he used profane language in response to Mr. Banks’ directive. The 

Board has recognized the compensability of physical threats and verbal aggression in certain 

circumstances.13 Regarding verbal aggression, compensability does not imply that every 

statement uttered in the workplace will give rise to coverage under FECA.14 A raised voice in 

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

11 Id.

12 Supra note 5. 

13 See Alton L. White, 42 ECAB 666, 669-70 (1991) (recognizing the compensability of physical threats and 

verbal aggression). 

14 See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, 42 ECAB 783 (1991). 
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the course of a conversation does not, in and of itself, warrant a finding of verbal abuse.15 One 

yelling incident does not constitute a persistent pattern of harassment. Appellant has not shown 

how such an isolated incident would rise to the level of verbal abuse or otherwise fall within the 

coverage of FECA.16

Appellant also contended that he was discriminated against by Mr. Banks, Mr. Ives and 

others. He contended that Mr. Ives told a coworker to stay away from him because he recorded 

people. Appellant stated that he had recorded Mr. Banks to prove that he had discriminated 

against him and created a hostile work environment. However, for harassment or discrimination 

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

discrimination did, in fact, occur. Mere perceptions or feelings of harassment or discrimination 

do not constitute a compensable factor of employment.17 An employee’s charges that he or she 

was harassed or discriminated against, is not determinative of whether or not harassment or 

discrimination occurred.18 To establish entitlement to benefits, a claimant must establish a 

factual basis for the claim by supporting his or her allegations with probative and reliable 

evidence.19 The Board finds that the factual evidence fails to support appellant’s allegation of 

discrimination. Appellant did not submit witness statements from individuals indicating that 

Mr. Banks discriminated against him or that Mr. Ives told employees to stay away from him to 

avoid being recorded. 

Appellant’s allegations regarding Mr. Banks’ instructions that he leave Ms. Scott’s 

cubical and return to his shop and threat of disciplinary action,20 the denial of a performance 

award21 and the filing of a EEO complaint alleging discrimination22 are administrative matters 

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

establishment. The statements of Mr. Banks, Mr. Sanderlin, Mr. Ives, Mr. Davis and 

Mr. Hodges, as discussed above, establish that Mr. Banks did not err in the exercise of his 

supervisory duties by directing appellant to leave Ms. Scott’s cubical and to return to the shop or 

threatening the use of disciplinary action. There is no evidence of record regarding Mr. Banks’ 

decision not to give appellant a performance award. Although appellant filed an EEO complaint 

 15 Karen K. Levene, 54 ECAB 671 (2003). 

16 See, e.g., Alfred Arts, 45 ECAB 530, 543-44 (1994) and cases cited therein (finding that the employee’s 

reaction to coworkers comments such as you might be able to do something useful and here he comes was selfgenerated and stemmed from general job dissatisfaction). Compare Abe E. Scott, 45 ECAB 164, 173 (1993) and 

cases cited therein (a supervisor’s calling an employee by the epithet ape was a compensable employment factor). 

17 J.C., 58 ECAB 594 (2007); Robert G. Burns, 57 ECAB 657 (2006); Lorraine E. Schroeder, 44 ECAB 

323 (1992). 

18 See Ronald K. Jablanski, 56 ECAB 616 (2005); William P. George, 43 ECAB 1159 (1992). 

19 See G.S., Docket No. 09-764 (issued December 18, 2009); C.S., 58 ECAB 137 (2006); Frank A. McDowell, 44 

ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990). 

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

21 See Dinna M. Ramirez, 48 ECAB 308, 313 (1997); Michael Thomas Plante, 44 ECAB 510, 516 (1993). 

22 Michael A. Salvato, 53 ECB 666, 668 (2002). 
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alleging discrimination regarding the actions of Mr. Banks and Mr. Ives, the record does not 

contain a formal finding of error or abuse to establish these allegations of error or abuse in an 

administrative matter. As there is insufficient evidence that the employing establishment acted 

unreasonably in the above-stated administrative matters, 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.23

On appeal, appellant’s attorney contended that OWCP’s decisions were based on 

incorrect findings of fact and conclusions of law. She asserted that the unsworn statements of 

management officials did not outweigh appellant’s hearing testimony which established that a 

December 10, 2012 yelling incident occurred as alleged. Counsel further asserted that an OWCP 

hearing representative did not consider the history provided by appellant in finding against a 

hostile work environment. She contended that the hearing representative incorrectly determined 

that appellant played an active role in creating the December 10, 2012 incident. The Board finds 

that appellant has offered no support for her argument and, for the reasons explained above, he 

failed to establish an emotional condition while in the performance of duty. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish that he 

sustained an emotional condition while in the performance of duty. 

 23 Karen K. Levene, 54 ECAB 671 (2003). 
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ORDER 

IT IS HEREBY ORDERED THAT the September 6, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 2, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board