United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.C., Appellant 

and 

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE, 

Waltham, MA, Employer 

__________________________________________ 

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Docket No. 16-0755 

Issued: December 13, 2016 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 7, 2016 appellant filed a timely appeal from a January 28, 2016 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 to consider the merits of this case. 

ISSUE 

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

condition in the performance of duty. 

On appeal appellant alleges that the evidence submitted establishes that his emotional 

condition was caused by compensable work factors. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 5, 2014 appellant, then a 55-year-old compliance investigator, filed an 

occupational disease claim (Form CA-2) alleging that on June 20, 2014 he first realized that his 

stress, inability to concentrate, short-term memory loss, and recurrence of severe depression 

were caused by his supervisor’s harassment. He explained that he experienced retaliation for his 

Equal Employment Opportunity (EEO) activity and whistle blowing. Appellant did not stop 

work. 

By letter dated September 8, 2014, OWCP requested that appellant provide factual and 

medical information to substantiate his claim. Appellant was afforded 30 days to provide the 

medical and factual evidence requested. 

Appellant clarified his claim and submitted evidence regarding his specific allegations of 

harassment, retaliation, and error in handling of administrative matters. Appellant alleged 

wrongdoing on the part of the employing establishment by failing to offer him a permanent 

position with the civil rights office following a detail and improperly handling of his concerns 

over the transfer of nonworking or damaged equipment. He also alleged the employing 

establishment denied his request to attend an Infragard meeting, and to have a guest speaker at 

his presentation, for a contact list, for recognition for his suggestion, and denied him the 

opportunity to serve on an employing establishment safety committee by refusing to form the 

committee. Appellant also alleged abuse regarding leave issues, grievances, and requests for 

equipment. 

In support of his claim appellant provided an undated affidavit from an EEO complaint. 

According to appellant, coworker M.B. had also filed an EEO complaint, and thereafter was 

detailed to an EEO office with a promise of permanent position. At the end of the detail, 

however, M.B. returned to his prior position where he had been subjected to harassment. 

Appellant alleged that this was similar to his experience because he had also been detailed to the 

EEO office, made a promise of a permanent job, but then returned to his prior position at the end 

of his detail. 

Appellant submitted e-mail correspondence from V.R., an employing establishment 

employee relations specialist, from a period of February 5 to April 25, 2012 over a grievance, 

leave issues, and the denial of a government computer and blackberry. 

A September 5, 2013 report reflected items that had been transferred to appellant, but 

appellant alleged were either inoperable, incorrect size, or damaged. 

In a September 12, 2013 e-mail, J.B., a regional director of the employing establishment, 

advised appellant that he would not be held accountable for any dents or scratches on the motor 

vehicle assigned to him, but the motor vehicle was not to be repaired at this time. 

In statements dated April 22 and 24, 2012, September 16 and November 12, 2013, 

January 15, 20, and July 24, 2014, appellant discussed work incidents he believed caused his 

emotional condition. Citing to the “No Fear Act,” he alleged abuse of authority, 
3

mismanagement, and failure to follow directives by J.B., D.D., a supervisor, and T.C., an 

investigator. 

Appellant related that upon his return to work on September 11, 2013 T.C. requested that 

he sign a report to accept the transfer of a General Services Administration (GSA) vehicle to 

him. He stated he checked the automobile’s condition prior to signing the report and discovered 

scratches of various depths and lengths. Appellant discussed the damages to the automobile with 

T.C. who informed appellant that he had not reported the damage to GSA. He documented the 

damage on the transfer of property form and added photos. Appellant gave the form to his 

supervisor, D.D. D.D. told appellant that she considered the damage to be normal wear and tear. 

Appellant informed D.D. that he nonetheless had notified GSA regarding the damage and was 

waiting for further instruction from GSA. 

Appellant further alleged that in a September 12, 2013 telephone conversation with J.L., 

he was instructed to obtain a police report and SF91 form, and e-mail them to her. He contacted 

E.G. of the GSA Accident Management Center who provided instructions on completing the 

SF91 allegedly told appellant that he had followed the proper procedures in reporting the 

damages to the automobile. Appellant alleged that J.B. had prohibited him from continuing with 

instructions given by E.G. regarding the government automobile damage. 

In a July 26, 2012 settlement agreement and August 8, 2012 addendum, the employing 

establishment agreed to detail appellant to the safety office effective September 2, 2012 for six 

months, and thereafter for six months to the Civil Rights Division. Appellant also received a 

lump-sum amount of $5,000.00. 

The employing establishment, in a letter dated September 12, 2013, responded that a term 

of the August 8, 2012 settlement agreement had not been met, regarding a close-out document 

dated December 23, 2010. The employing establishment was unable to respond to the remaining 

allegations because they were outside the four corners of the agreement. 

Appellant alleged that on October 23, 2013 he filed an informal grievance with D.D. 

alleging harassment and ongoing retaliation by J.B. for having not been properly recognized for a 

suggestion of appellant’s which had been implemented. He believed that he was entitled to an 

award or compensation for his suggestion. 

Appellant filed a formal grievance on November 12, 2013 alleging that on October 29, 

2013 he had been subjected to harassment and interference by D.D. for destroying his contact 

information while he was away on leave or detail and not providing him an updated contact list 

on his return to the office. He further alleged bullying, reprisal, and abuse of authority by D.D. 

and T.C. for micromanaging and excessively monitoring his work, and providing unwarranted 

criticism. 

OWCP received a May 12, 2014 letter of caution from J.E., Director Compliance and 

Investigations, for failure to follow instructions provided by his supervisor, D.D., and for failing 

to perform his assigned duties as he had been instructed. The letter also alleged that appellant 

exhibited discourteous or unprofessional conduct toward his coworkers and supervisor, and that 
4

he made disrespectful and irresponsible statements. The letter of caution provided examples and 

dates of each allegation. 

Appellant submitted e-mail correspondence acknowledging that guest speaker B.L. did 

not accompany appellant to his diversity presentation as requested. 

In a July 27, 2014 complaint affidavit, appellant reiterated allegations of harassment, 

discrimination, abuse, and reprisal. Next, he alleged harassment and discrimination due to the 

employing establishment’s denial of his request to attend an Infragard meeting; the employing 

establishment instructing him not to report government vehicle damage, the failure of the 

employing establishment to recognize or award his idea, the employing establishment denying 

his opportunity to serve on a safety committee by refusing to form the committee; and the 

employing establishment’s failure to offer him a permanent position with its civil rights staff 

after his detail ended. He related that he had previously filed an EEO complaint, which was 

settled. Appellant also explained that he was a witness for a complaint involving coworker, 

M.B.’s EEO complaint. 

Appellant contended that Dr. Eliot’s denial of his request to attend the Infrared meeting 

was reprisal for the EEO complaint he had filed, and he further alleged that the letter of caution 

he had received was abuse. Appellant alleged that the failure to form the safety committee was a 

violation of the settlement agreement as he claimed he had been verbally promised. 

In correspondence dated July 1 and August 1, 2014, the employing establishment 

Division Chief of their Employment Complaints Division responded to appellant’s request to 

amend his complaint and advised him which allegations had been accepted for investigation. 

In a July 29, 2014 progress notes, Vicki E. Beggs, Ph.D., a clinical psychologist, 

diagnosed depression, work problems, and obesity. 

In an August 14, 2014 report Stanley J. Alexander, Ph.D. and licensed psychologist, 

diagnosed depression, acute stress disorder, and anxiety. Appellant attributed his condition to 

unrelenting stress at work and an intolerable work situation since 2010. Dr. Alexander 

recommended a medical leave of absence for the period September 7 to November 21, 2014. 

On August 29, 2014 appellant filed a grievance alleging that he had been subjected to a 

hostile work environment based on targeting by his supervisor due to being under psychiatric 

care. 

By decision dated March 26, 2015, OWCP denied appellant’s emotional condition claim 

as it found that appellant had not established any compensable work factors. It found that there 

was no evidence showing that appellant had been subjected to harassment or discrimination and 

there was no evidence of administrative error or abuse by the employing establishment. 

Subsequent to the denial of his claim, OWCP received a September 23, 2014 letter of 

reprimand to appellant from V.R. for failure to follow instructions from his supervisors, and 

failure to comply with employing establishment regulations and rules. 
5

It further received a September 30, 2014 letter to appellant from A.D., Attorney, 

Complaints Examining Unit of the U.S. Office of Special Counsel, which informed appellant that 

it had denied his allegations of harassment, reprisal, and whistleblowing involving D.D., J.B., 

and J.C. She informed him of her appeal rights. 

Dr. Alexander, in letters dated December 10, 2014, February 17, January 19 and 

March 26, 2015, requested an extension of appellant’s medical leave due to the intractability of 

his depressive disorder symptoms. In a January 5, 2015 letter, Dr. Alexander opined that 

appellant’s intractable depression and stress were due to what appellant perceived was 

harassment by the employing establishment in not pursuing alternative dispute resolution or 

mediation to address his complaints. He also opined that being in a courtroom with an 

adversarial attorney would be too stressful for appellant and he would be unable to adequately 

represent himself. 

In a form dated April 2, 2015, appellant requested a telephonic hearing before an OWCP 

hearing representative, which was held on November 23, 2015. 

In an April 15, 2015 report, Dr. Alexander opined that appellant’s depression had been 

aggravated by the EEO process and the employing establishment’s delay in responding to 

appellant’s request for alternative dispute resolution or mediation on his complaints. 

On May 4, 2015 OWCP received an undated partial affidavit, which only included odd 

numbered pages, from M.B., attesting to having met appellant when they both had been detailed 

to the civil rights office and that he was aware that appellant had not been offered a permanent 

position following the completion of the detail with the civil rights office. 

By decision dated January 28, 2016, an OWCP hearing representative affirmed OWCP’s 

March 26, 2015 decision which had denied appellant’s emotional condition claim as he had 

failed to establish any compensable work factors. 

LEGAL PRECEDENT 

To establish a claim that he sustained an emotional condition in the performance of duty, 

an employee must submit the following: (1) medical evidence establishing that he has an 

emotional or psychiatric disorder; (2) factual evidence identifying employment factors or 

incidents alleged to have caused or contributed to his condition; and (3) rationalized medical 

opinion evidence establishing that the identified compensable employment factors are causally 

related to his emotional condition.2

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

somehow related to an employee’s employment.3

 There are situations where an injury or an 

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

 2 V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990). 

3 L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006). 
6

concept or coverage of workers’ compensation.4 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 reduction-in-force or his or her frustration from not being permitted to work 

in a particular environment or to hold a particular position.6

 

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.7

 If a claimant does implicate a factor of 

employment, OWCP should then determine whether the evidence of record substantiates that 

factor.8

 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.9

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.10 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.11 

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.12

For harassment or discrimination to give rise to a compensable disability, there must be 

evidence which establishes that the acts alleged or implicated by the employee did, in fact, 

 4 A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005). 

5

 5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

6 J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001). 

7 D.L., 58 ECAB 217 (2006); Jerald R. Gray, 57 ECAB 611 (2006). 

8 K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005). 

9 Robert Breeden, supra note 3. 

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

ECAB 556 (1991). 

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

12 Ruth S. Johnson, 46 ECAB 237 (1994). 
7

occur.13 Mere perceptions of harassment or discrimination are not compensable under FECA.14 

A claimant must substantiate allegations of harassment or discrimination with probative and 

reliable evidence.15 Unsubstantiated allegations of harassment or discrimination are not 

determinative of whether such harassment or discrimination occurred.16 A claimant must 

establish a factual basis for his or her allegations of harassment or discrimination with probative 

and reliable evidence.17 

ANALYSIS 

Appellant alleged an emotional condition as the result of various employment incidents. 

OWCP denied his claim because he had failed to establish any compensable employment factors. 

The Board must initially review whether the alleged employment incidents are covered 

employment factors under FECA. The Board notes that appellant’s allegations do not pertain to 

his regular or specially assigned duties under Cutler.

18 Appellant’s allegations pertain to alleged 

error and abuse in personnel or administrative matters and harassment and discrimination on the 

part of his supervisors and a coworker. The Board finds that appellant has not established any 

compensable factors of employment. 

Appellant alleged error and abuse on the part of the employing establishment by failing to 

offer him a permanent position with the civil rights office following a detail, by improperly 

handling his concerns over the transfer of nonworking or damaged equipment, for denying his 

request to attend an Infragard meeting, to have a guest speaker B.L. at his presentation; and to be 

provided an updated contact list. He also claimed error when he had not been rewarded for the 

implementation of one of his suggestions and when he was denied an opportunity to serve on the 

safety committee. 

A review of the settlement agreement and addendum do not support appellant’s 

contention that he was promised a permanent position with the civil rights office. The agreement 

stated that appellant would be detailed six months to the safety office and then for six months 

with the civil rights office. Appellant submitted an affidavit from M.B., but it is incomplete and 

did not support appellant’s allegation. The fact that both appellant and M.B. were detailed as 

 13 K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 3. 

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

15 J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 3. 

16 G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C. 

Owens, 54 ECAB 684 (2003). 

17 Robert Breeden; supra note 3; Beverly R. Jones, 55 ECAB 411 (2004). 

18 Lillian Cutler, supra note 5. 
8

part of their settlement agreements, and did not receive a permanent position at the end of their 

details, does not establish error and abuse.19 

The allegations with respect to the handling of the transfer of a government vehicle and 

contradictory instructions regarding damage reports, the denial of appellant’s request to attend an 

Infragard meeting, and to have a guest speaker at his presentation, and the denial of appellant’s 

request to form a new committee all pertain to the assignment and management of work which is 

an administrative function of the employing establishment and not a duty of the employee.20

Appellant submitted no other evidence corroborating his allegations of error in the 

employing establishment’s handling of the vehicle damage reports, denial of his request to attend 

a meeting, denial of his request for a guest speaker, and denial of a contact list.21 He submitted 

e-mail correspondence from D.D. informing him that having a guest speaker at his diversity 

presentation was not approved. There is no evidence in the record supporting that these actions 

of the employing establishment were abusive or erroneous.22 

Appellant also alleged abuse by the employing establishment claiming that he had not 

been properly recognized for a suggestion, that D.D. micromanaged his work and gave him a 

poor midyear performance appraisal, that J.E. improperly issued him a letter of caution on 

May 12, 2014, and that V.R. improperly issued a September 23, 2014 letter of reprimand. The 

handling of disciplinary actions and leave requests, as well as monitoring performance are 

administrative functions of a supervisor.23 The manner in which a supervisor exercises his or her 

discretion generally falls outside FECA’s coverage. This principle recognizes that supervisors 

must be allowed to perform their duties and at times employees will disagree with their 

supervisor’s actions. Mere dislike or disagreement with certain supervisory actions will not be 

compensable absent error or abuse on the part of the supervisor.24 There is no credible evidence 

of any error or abuse on the part of the employing establishment. While appellant contended that 

he did nothing to warrant either the letter of reprimand or letter of warning, that the allegations 

were false, and the allegations were made to discredit him, he has provided no corroborating 

evidence to support his contentions.25 Thus, appellant has not established any error and abuse by 

the employing establishment. 

 19 Cf. The Board has found that where the evidence demonstrates that the employing establishment either erred or 

acted abusively in discharging its personnel responsibilities, such action could be considered a compensable 

employment factor. See J.B., Docket No. 15-0986 (issued September 23, 2016). 

20 See G.S., supra note 16; Lori A. Facey, 55 ECAB 217 (2004). 

21 See S.D., Docket No. 14-0701 (issued October 2, 2015). To establish a compensable factor of employment, 

appellant must provide corroborating evidence to establish an allegation of error or abuse on the part of the 

employing establishment. 

22 Supra note 11. 

23 Donney T. Drennon-Gala, 56 ECAB 469 (2005); Beverly R. Jones, 55 ECAB 411 (2004); Charles D. Edwards, 

55 ECAB 258 (2004). 

24 Linda J. Edwards-Delgado, 55 ECAB 401 (2004). 

25 Supra note 21. 
9

For the above reasons, appellant has not established any compensable work factors under 

FECA with respect to administrative or personnel matters. 

Appellant also alleged harassment, discrimination, reprisal and bullying due to actions of 

his supervisors and a coworker. He reported being bullied, humiliated, and intimidated, by his 

coworker and supervisor in violation of the employing establishment’s zero tolerance policy. 

However, appellant has again submitted no evidence to establish his claims. Mere perceptions of 

harassment alone are not compensable under FECA.26 Appellant did not submit any witness 

statements in support of his claim. He submitted copies of grievances and EEO complaints, but 

the Board has held that EEO complaints and grievances, by themselves, do not establish 

workplace harassment or unfair treatment.27

As appellant has failed to establish a compensable work factor, the Board will not review 

the medical evidence of record.28

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 

The Board finds that appellant has failed to meet his burden of proof to establish an 

emotional condition in the performance of duty. 

 26 G.S., supra note 16; V.W., 58 ECAB 428 (2007); Robert G. Burns, 57 ECAB 657 (2006). 

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

28 See L.K., Docket No. 08-849 (issued June 23, 2009); V.W., supra note 26; Alberta Dukes, 56 ECAB 247 

(2005); Margaret S. Krzycki, 43 ECAB 496 (1992). 
10

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated January 28, 2016 is affirmed. 

Issued: December 13, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board