United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

DEPARTMENT OF TRANSPORTATOIN, 

FEDERAL AVIATION ADMINISTRATION, 

Jacksonville, FL, Employer 

__________________________________________ 

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Docket No. 16-0917 

Issued: May 8, 2017 

Appearances: Case Submitted on the Record

Jennifer Raymond, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 1, 2016 appellant, through counsel, filed a timely appeal from a January 22, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

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

emotional condition in the performance of duty. 

On appeal counsel contends that appellant has established compensable factors of 

employment and that his condition is causally related to those factors. 

FACTUAL HISTORY 

This case has previously been before the Board.3

 The facts as presented in the prior 

Board decision are incorporated herein by reference. The relevant facts are as follows. 

Appellant, then a 47-year-old supervisor air traffic control specialist, filed an 

occupational disease claim (Form CA-2) on January 31, 2013 alleging that his post-traumatic 

stress disorder had been aggravated by his excessive workload and stress from his job duties. He 

first realized that his post-traumatic stress disorder was employment related on September 16, 

2012 and he stopped work on September 24, 2012. 

In support of his claim, appellant submitted a report from Dr. Naomi I. Jacobs, a licensed 

clinical psychologist, who noted appellant’s concern of hostility towards Hispanic employees 

and attempts to fire him. Dr. Jacobs opined that appellant suffered from an aggravation of posttraumatic stress disorder stemming from a June 5, 2012 incident. 

In a June 25, 2013 decision, OWCP denied appellant’s claim because he failed to 

establish any compensable employment factors, which an OWCP hearing representative affirmed 

in a November 13, 2013 decision.4

 Appellant appealed to the Board, and by decision dated 

November 14, 2014, the Board affirmed OWCP’s November 13, 2013 decision denying his 

emotional condition claim.5 The Board found that appellant failed to establish any compensable 

employment factors. 

The Board found that the following alleged events were not established compensable 

employment factors: (a) appellant’s computer was confiscated on June 5, 2012 by R.G. and 

R.C.; (b) appellant was not given a reason for confiscation of his computer, nor was he allowed 

to copy files or work from the confiscated computer; (d) appellant was wrongly accused of 

running a personal business from his personal computer; (e) the employing establishment failed 

to verify whether a business existed in appellant’s name prior to confiscating his computer; (f) 

appellant’s privacy was violated by a request for his eBay user name; (g) appellant was harassed 

as part of an organized effort to eliminate Hispanics from employing establishment management; 

 3

 Docket No. 14-0854 (issued November 14, 2014). 

4

 The hearing representative noted that appellant had filed two previous claims for stress and post-traumatic stress 

disorder. She noted that under OWCP File No. xxxxxx327 he alleged stress due to overwork with an injury date of 

May 26, 2000. Under OWCP File No. xxxxxx656 appellant alleged post-traumatic stress disorder due to an 

excessive workload with an injury date of June 5, 2012. Neither claim has been accepted by OWCP. 

5 Supra note 3. 
3

(h) appellant’s supervisors were ordered to fire him with no investigation; and (i) appellant was 

assigned an excessive workload and increased responsibility as he was required to manage staff 

on and off the clock and also manage air traffic. 

On October 28, 2015 appellant, through counsel, requested reconsideration. In support of 

the request, counsel provided argument and submitted additional evidence. 

In a December 29, 2011 e-mail G.O., acting as Director of the National Hispanic 

Coalition of Federal Aviation Employees, expressed concern regarding reports of harassment and 

discrimination toward Hispanic employees. He stated that the derogatory Hispanic comments 

made by two individuals at a December 8, 2011 meeting were abusive, degrading and 

inflammatory. G.O. alleged that the individuals who made the inappropriate comments were not 

held accountable. He alleged direct and indirect harassment of Hispanic employees at all levels 

including allegations that Hispanics were only in their jobs due to their minority status. G.O. 

questioned how appellant could be investigated and threatened with removal based on a false 

accusation in an e-mail by a disrespectful employee and no factual basis. He alleged 

discrimination in the selection of subordinate white males for supervisory positions instead of a 

higher placed Hispanics. 

The record contains e-mail correspondence between P.G., R.G., S.A., and G.O. regarding 

the choice of replacement for appellant and racist remarks directed at Hispanic employees made 

during a December 8, 2011 meeting. 

In an undated and unsigned statement, appellant alleged a hostile work environment due 

to the discrimination and abuse aimed at Hispanic employees at the employing establishment. In 

support of this allegation, he referred to the filing of Equal Employment Opportunity (EEO) 

complaints by L.O., a manager; G.O., a subordinate supervisor; and A.I., a subordinate 

supervisor. According to appellant the chaos and abuse during this period impacted him 

emotionally and was a direct cause of his anxiety and September 16, 2012 loss of focus. He 

related that his treating physician diagnosed post-traumatic stress disorder due to the employing 

establishment chaos and abuse. 

On October 17, 2015 appellant provided a narrative statement regarding alleged abuse 

and harassment he incurred along with other Hispanic employees at work. He generally alleged 

that during the period April 2010 to June 6, 2012 he was informed that he and other Hispanic 

employees would be denied promotions by the employing establishment. More specifically 

appellant alleged that he was initially informed that he would be denied promotion to the 

position of Traffic Management Officer (TMO). After he was promoted to the TMO position, he 

alleged that he was subjected to hostile treatment and offensive statements and hostile treatment 

due to his race, including racist comments made during a meeting on December 8, 2011. 

Appellant alleged that the stress from increased pressure of trying to prove himself capable of 

performing the duties of the TMO position, while under discriminatory conditions, was 

overwhelming. He further alleged that he was subjected to an employing establishment 

investigation of his laptop after complaining about supervisors and coworkers at the employing 

establishment, and that it was difficult for him to work under the stress of the investigation. 

Appellant alleged that other Hispanic coworkers were also harassed and investigated at this same 

time. 
4

In an October 20, 2015 statement, G.O. related that appellant had been a wonderful 

manager, but noted that appellant had been under significant stress due to his managerial 

responsibilities. He noted that appellant became burnt-out due to the stress of his job and the 

24-hour on-call responsibilities, six days a week. G.O. noted that appellant missed work and 

sought medical care due to the effects of the stress on his health. 

In a second statement dated October 20, 2015, G.O. described a December 8, 2011 allhands meeting where disparaging remarks were made about Hispanic managers without any 

correction by management. He stated that C.S. made a comment regarding promotion favoritism 

by P.G. G.O. also referred to Spanish as “the lingo.” He related that he and A.I. were appalled 

by C.S.’s comments, but D.R., M.C., and V.D. appeared in agreement. According to G.O. and 

M.C. then made a comment that L.O. would get the next promotion on a FLM bid as she spoke 

Spanish. G.O. related that the Hispanic managers at this meeting had been deeply offended by 

the meeting comments. Upper management had been alerted to the concerns about the meeting 

statements, but nothing was done. Following this meeting, both he and appellant felt that they 

were held to a different standard and felt the stress-of-their jobs. 

In a statement dated October 21, 2015, J.G. alleged discrimination and a hostile work 

environment toward Hispanic employees by the employing establishment. He noted that during 

the summer of 2011 appellant had been promoted to the position of TMO which he described as 

a high stress and very demanding job. At the time of appellant’s promotion, J.G. stated that 

people were unhappy with the selection and K.C. made a comment about the number of 

Hispanics in leadership positions. He also related that several supervisors left as they did not 

want to work for appellant and had not been selected for the position. Due to the shortage of 

supervisors and the reason for their leaving put a lot of stress on appellant. J.G. stated that, after 

appellant was promoted, his decisions were questioned and there were constant complaints. At 

no time, however, was appellant ever found to have done anything wrong in his decisions. 

According to J.G. appellant was instructed to make any needed changes with the result that the 

routing changes improved the operation, but made the command center unhappy. He related 

things changed at the employing establishment in October 2011 following the retirement 

announcement of M.M., Air Traffic Manager, and the promotion of his subordinate manager to 

M.M.’s position. According to J.G. this was the start of the disrespectful behavior towards 

Hispanic managers and employees. 

In November 2011 G.K., whom he described as a disgruntled employee, filed an EEO 

complaint against appellant for inappropriate comments, which was dismissed as meritless after 

an investigation. J.G. related that he had been told that in a December 2011 meeting that C.S. 

made racial comments about Hispanics including that speaking Spanish was the only reason for 

their promotions. Prior to M.M.’s retirement, J.G. stated that M.M. came into his office during a 

conversation with appellant and that they were told that R.B. wanted appellant removed from his 

position due to K.C. stating that appellant had threatened the supervisors. He stated that R.G. did 

not give appellant any support and had no traffic management background. On June 6, 2012 

appellant informed him that his computer had been taken by R.B. without any explanation. He 

related that he believed appellant’s computer was taken to check for e-mails from J.G. and his 

brother. According to J.G. appellant felt micromanaged, questioned, and concerned about how 

to defend himself. J.G. concluded that since December 8, 2011 there have been personal attacks 

and unwarranted scrutiny on the Hispanic employees. 
5

By decision dated January 22, 2016, OWCP denied modification of its June 23, 2015 

denial of the claim. It found that the evidence of record failed to substantiate appellant’s claims 

of overwork and harassment. Specifically, OWCP found that the evidence submitted was 

insufficient to establish: (a) any changes in appellant’s work duties; (b) appellant’s allegation of 

overwork based on his concern about work being done correctly and working a shift for another 

manager; (c) appellant’s allegation of accumulated stress from his position; and (d) that 

statements appellant had provided substantiated his allegations of overwork or harassment based 

on ethnicity. 

LEGAL PRECEDENT 

To establish a claim for an emotional condition in the performance of duty, an employee 

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 his or her condition; and (3) rationalized medical opinion evidence 

establishing that the identified compensable employment factors are causally related to his or her 

emotional condition.6

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

somehow related to an employee’s employment.7 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.8

 Where the disability results from an 

employee’s emotional reaction to his regular or specially assigned duties or to a requirement 

imposed by the employing establishment the disability comes within the coverage of FECA.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 a frustration from not being permitted to work in a particular 

environment or to hold a particular position.10 

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.11 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.12 In determining whether the employing establishment has erred or acted abusively, 

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

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

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

9 Supra note 2; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976). 

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

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

ECAB 556 (1991). 

12 See William H. Fortner, 49 ECAB 324 (1998). 
6

the Board will examine the factual evidence of record to determine whether the employing 

establishment acted reasonably.13

The Board has held that the manner in which a supervisor exercises his discretion falls 

outside the coverage of FECA. This principal recognizes that a supervisor or manager must be 

allowed to perform his or her duties and that employees will, at times, disagree with actions 

taken. Mere disagreement with or dislike of actions taken by a supervisor or manager will not be 

compensable absent evidence establishing error or abuse.14 Although the handling of leave 

requests and attendance matters are generally related to employment, they are administrative 

matters and not a duty of the employee.15 

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

evidence which establishes that FECA’s alleged or implicated by the employee did, in fact, 

occur.16 Mere perceptions of harassment or discrimination are not compensable under FECA.17 

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

reliable evidence.18 Unsubstantiated allegations of harassment or discrimination are not 

determinative of whether such harassment or discrimination occurred.19 A claimant must 

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

and reliable evidence.20 

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.21 If a claimant does implicate a factor of 

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

factor.22 When the matter asserted is a compensable factor of employment and the evidence of 

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

14 S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401 (2004). 

15 C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, 57 ECAB 611 (2006). 

16 K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 7. 

17 M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006). 

18 J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 7. 

19 G.S., Docket No. 09-0764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); 

Penelope C. Owens, 54 ECAB 684 (2003). 

20 Robert Breeden, supra note 7; Beverly R. Jones, 55 ECAB 411 (2004). 

21 D.L., 58 ECAB 217 (2006); Jeral R. Gray, supra note 15. 

22 K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005). 
7

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

the medical evidence.23

ANALYSIS 

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

employment incidents and conditions. OWCP denied his emotional condition claim finding that 

he failed to establish any compensable work factors. The Board must, therefore, initially review 

whether these alleged incidents and conditions of employment are covered employment factors 

under FECA. 

In the prior appeal, the Board found that appellant’s allegations of stress from increased 

scrutiny and an excessive workload were not substantiated by the evidence of record. The Board 

also found that his allegations of overwork were nonspecific and general and unsupported by the 

evidence. The Board concluded that appellant only provided general allegations of harassment 

and discrimination based on his Hispanic origin. Appellant did not provide specific allegations 

or instances of discrimination or evidence of a hostile work environment. The Board further 

found that he failed to submit any corroborating evidence that the removal of his computer and 

an interrogation on August 15, 2012 were unreasonable or erroneous. 

Appellant submitted additional evidence in support of his claim following the Board’s 

prior decision. 

The Board finds that appellant has not established a compensable factor of employment 

with regard to overwork. Appellant generally alleged that he was overworked. However, he 

provided insufficient corroborating evidence to establish this allegation. 

While the record contains allegations that appellant was on-call 24/7, the record does not 

substantiate that, as a supervisor, he qualified for overtime. He submitted no factual evidence 

substantiating this allegation, such as earnings and leave statements, time records, or daily work 

records. Appellant did submit statements from J.G., his supervisor, and G.O., a person he 

supervised, relating that appellant was overworked due to understaffing. Neither G.O. nor J.G., 

however, provided specific details or instances where appellant supporting their statement that he 

was overworked. Both G.O. and J.G. provided generalized statements without any citation to the 

specific work duties appellant performed or the dates they stated that he filled in for 

subordinates. In addition, there is no factual evidence corroborating their general allegation 

regarding understaffing. As with all allegations, overwork must be established on a factual basis 

to be a compensable employment factor.24 Because appellant has not submitted any evidence 

corroborating this, overwork cannot be deemed compensable factors of employment. 

The Board also finds that appellant failed to establish that his supervisors or coworkers 

verbally abused him based on his race or ethnicity or created a hostile work environment. As 

 23 Robert Breeden, supra note 7. 

24 K.S., Docket No. 15-1426 (issued December 29, 2015); Robert Breeden, 57 ECAB 622 (2006); Sherry L. 

McFall, 51 ECAB 436 (2000). 
8

previously noted, mere perceptions of harassment or discrimination are not compensable under 

FECA.25 A claimant must substantiate allegations of harassment or discrimination with 

probative and reliable evidence.26 

Appellant provided general allegations of harassment or discrimination based on his 

Hispanic heritage. He described dealing with Hispanic managers who had filed EEO complaints 

increased his stress level. However, appellant did not provide specific details regarding his 

interaction with the individuals involved or any dates. He also alleged that D.R. informed him 

that he would not be chosen for an open higher position since a Hispanic person occupied the 

number two position in the front office. However, the evidence of record establishes that 

appellant was promoted to the TMO position. 

Appellant further alleged that B.B., R.G., and R.B. were all involved in an attempt to get 

him fired. The Board notes that appellant provided no corroborating evidence or witness 

statements to establish that these individuals were colluding to get him fired. 

The record also contains a statement by G.O. who alleged that the employing 

establishment discriminated against Hispanics. He provided no information regarding any 

specific incident involving appellant. Moreover, G.O.’s statement regarding discrimination was 

general in nature with no details regarding any specific incidents regarding appellant or any other 

Hispanic employee. Appellant did not provide evidence to substantiate his allegations of 

harassment or discrimination.27 

Appellant alleged that he was subjected to a hostile work environment based on his 

Hispanic ethnicity and the hostile treatment of Hispanic employees. He contended that the 

harassment and resentment of Hispanics began following his promotion to TMO. The perception 

of harassment or mistreatment is not sufficient to establish a compensable work factor.28 There 

must be probative and reliable evidence in support of the allegation.29 The evidence of record 

does not contain probative and reliable evidence sufficient to establish harassment or a hostile 

work environment. Although appellant alleged that EEO complaints had been filed by several 

Hispanic employees, the record contains no findings by the EEO Commission or other 

administrative agencies on this issue.30 The witness statements and the documents from his 

supervisor and subordinates made allegations of a hostile work environment towards Hispanics, 

but do not provide specific examples of harassment involving appellant. These statements by 

J.G., G.O., S.A., and R.G. concern a replacement for appellant and deal with the racial remarks 

 25 Supra note 17. 

26 Supra note 18. 

27 See G.S., supra note 19; Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must 

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

28 G.S., supra note 19; J.C., 58 ECAB 594 (2007); Robert G. Burns, supra note 17. 

29 J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 7. 

30 Such evidence, while not determinative, may constitute substantial evidence regarding a compensable work 

factor. See Walter Asberry, Jr., 36 ECAB 686 (1985). 
9

made at the December 8, 2011 meeting describe incidents they have had with C.S. and D.R., but 

do not mention any incidents pertaining to appellant. J.G. and G.O. also provided further details 

regarding a December 8, 2011 meeting where they stated racist remarks were made about 

Hispanic employees and general allegations of a hostile work environment for Hispanic 

employees. However, their statements are insufficient as they are general perceptions by G.O. 

and J.G. without describing in detail specific incidents involving appellant. They merely note 

that they have witnessed hostile behavior towards Hispanics. The Board has long held that mere 

perceptions of harassment or discrimination are not compensable.31 Thus, appellant has not 

established a compensable factor with respect to a hostile work environment. 

On appeal counsel argues that the evidence of record establishes that appellant was 

overworked. Counsel also argues that all elements of entitlement under FECA have been met 

and thus, OWCP erred in denying his emotional condition claim. As found above, appellant 

failed to establish any compensable factor of employment with respect to his allegations. He 

submitted no supporting factual evidence confirmation regarding his allegation that he was 

overworked and thus, he has failed to establish any compensable factors of employment. 

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 not met his burden of proof to establish that he 

sustained an emotional condition in the performance of duty 

 31 L.S., 58 ECAB 249 (2006). 
10

ORDER 

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

Compensation Programs dated January 22, 2016 is affirmed. 

Issued: May 8, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board