United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.M., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Kansas City, MO, Employer 

__________________________________________ 

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Docket No. 16-1695 

Issued: June 27, 2017 

Appearances: Case Submitted on the Record

Melford V. McCormick, J.D., for the appellant1

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 August 23, 2016 appellant, through her representative, filed a timely appeal from a 

July 27, 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 over 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 her burden of proof to establish an emotional 

condition in the performance of duty causally related to factors of her federal employment. 

On appeal appellant’s representative asserts that the wrong legal standard was applied, 

noting that two witnesses saw the claimed incidents. 

FACTUAL HISTORY 

On November 10, 2014 appellant, then a 38-year-old tax examiner, filed an occupational 

disease claim (Form CA-2) alleging that working in a hostile workplace caused health 

conditions. She stated that she first became aware of the condition on May 21, 2012 and its 

relationship to her federal employment on May 5, 2014. 

By letter dated December 29, 2014, OWCP informed appellant of the evidence needed to 

support her claim. 

In a January 12, 2015 response, appellant alleged that: (1) in 2011 her manager M.C. 

grabbed her arm to prevent her from making a copy of a signed absent-without-leave (AWOL) 

memorandum, and continued to harass and retaliate until she was transferred; (2) in 2013, while 

on the nightshift, Managers C.J. and K.B. denied her requests for a transfer to the dayshift in 

retaliation for Equal Employment Opportunity (EEO) activity; (3) in 2014 she requested Family 

and Medical Leave Act (FMLA) leave, and while on leave was continually charged with AWOL 

by Managers D.E. and L.S., which caused financial hardship; and, (4) C.G., the union president, 

interfered with an EEO investigation. 

In a letter dated April 30, 2015, OWCP asked the employing establishment to respond to 

appellant’s claim. 

The record contains copious evidence regarding appellant’s allegations. An August 4, 

2011 report of investigation by the employing establishment’s Office of the Inspector General 

(OIG) covering March 9 through July 19, 2011 noted appellant’s allegation that M.C. grabbed 

her arm and pushed her while she was in Supervisor M.C.’s cubicle discussing an AWOL 

memorandum. M.C. agreed that she and appellant were discussing an AWOL memorandum, but 

denied that she touched appellant. A witness, L.R., described an incident that occurred on or 

about March 9, 2011 when M.C. became upset with appellant because she had been talking with 

a new employee. L.R. indicated that M.C. began berating appellant, and then placed her hands 

on appellant and gently pushed her away. The employing establishment noted, in a 

September 21, 2011 letter, that it had closed the investigation with no action. M.C. had been 

cautioned to create and sustain a positive workplace. A September 18, 2012 report indicated that 

the OIG investigation was closed and noted that appellant had filed an EEO complaint. 

Regarding appellant’s 2013 request for a hardship transfer from the nightshift to the 

dayshift included a May 16, 2013 memorandum to appellant from C.J., senior manager, indicated 

that no position was available on the dayshift at that time and that appellant’s name had been 
3

placed on a list for consideration when a position became open. C.J. noted that appellant had 

permanently transferred to the dayshift under a new division. 

In a grievance resolution signed on October 16, 2012, 20 hours of sick leave were 

restored to appellant and 8 hours of AWOL was changed to 8 hours of FMLA. The employing 

establishment was to respond to appellant’s request for a transfer and secure a new position for 

her. Neither party admitted to wrongdoing. A second grievance settlement agreement dated 

October 9, 2014 indicated that 62 hours of AWOL would be changed to appropriate leave. The 

agreement provided that it did not constitute an admission of wrongdoing on the part of the 

employing establishment. A February 13, 2015 report regarding this indicated that, at the time 

appellant requested 480 hours of FMLA in May 2014, it exceeded the 168 hours that had been 

approved, and that it was not until June 9, 2014 that sufficient medical documentation was 

received to support the additional hours. At that time the AWOL was changed to annual leave, 

sick leave, leave bank, and leave transfer hours. 

Evidence regarding interaction with C.G., who was president of the union local, 

described an October 22, 2014 event when appellant alleged that C.G. approached her desk with 

an envelope, telling her to sign it, and he shoved the envelope at her, and then on October 24, 

2014 L.S., a manager, told appellant that she needed to meet with her and C.G., but C.G. 

requested another union representative. A management inquiry dated January 22, 2015 indicated 

that no evidence was found that a physical assault occurred. 

The record also contains additional evidence regarding EEO claims and grievances filed,3

and appellant’s performance appraisals. 

In a January 12, 2015 statement, C.D., a coworker, advised that, while she and appellant 

were cordially speaking to each other on September 10, 2014, L.S. came and commented: 

“ladies we have a lot of work to do.” She also indicated that she knew that C.G. became 

aggressive when he asked appellant to sign some papers and threw them at her. 

Medical evidence relevant to the claim included a June 1, 2012 report in which Daniel J. 

Keyser, Ph.D., a clinical psychologist, indicated that appellant was under his care for an anxiety 

disorder, depression, and an extremely high stress level. In a June 9, 2014 letter, Dr. Keyser 

indicated that appellant was under his care for work-related stress and depression. He advised 

that she be on medical leave from May 5 through August 31, 2014. On an attending physician’s 

report (Form CA-20), dated December 9, 2014, Dr. Keyser diagnosed anxiety and depression. 

On January 5, 2015 he related that he began treating appellant on May 21, 2012 for anxiety and 

depression due to a hostile work environment. Dr. Keyser maintained that conditions had not 

changed, and appellant still experienced work-related anxiety and depression caused by the 

stressors of the hostile environment. On April 20, 2015 he related that appellant was having 

sleep disturbances and physical symptoms such as muscle spasms, headaches, abdominal pain, 

chest pain, and digestive problems. Dr. Keyser advised that she was unable to perform her 

regular work duties. 

 3

 No additional settlement agreements or final decisions are found in the case record before the Board. 
4

By decision dated November 18, 2015, OWCP found that appellant had not established 

any compensable factors of employment and denied the claim. It specifically found that the 

claimed assault by supervisor M.C. did not occur. 

Appellant timely requested a hearing with OWCP’s Branch of Hearings and Review. She 

submitted evidence previously of record. D.M., a coworker, provided an April 19, 2011 

statement in which she opined that M.C. was rude and unfair. Appellant submitted additional 

reports from Dr. Keyser. Her representative also submitted additional evidence alleging 

continued harassment into 2016. 

At the hearing held on June 10, 2016, the hearing representative explained that no 

incidents after November 10, 2014 would be considered. Appellant’s representative maintained 

that harassment was shown by the EEO reversal of leave without pay. Appellant testified 

regarding the March 2011 event with M.C., and subsequent transfers, indicating that her next 

team supervisor’s wife was a friend of M.C., that the third supervisor was very rude, and that 

L.S. micromanaged and was very controlling. She also maintained that she had inappropriately 

been charged AWOL, that her hardship request was improperly denied, and that she had won 

several EEO claims. 

By decision dated July 27, 2016, an OWCP hearing representative affirmed the 

November 18, 2015 decision. 

LEGAL PRECEDENT 

To establish her claim that she sustained an emotional condition in the performance of 

duty, appellant must submit the following: (1) medical evidence establishing that she has an 

emotional or stress-related disorder; (2) factual evidence identifying employment factors or 

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

opinion evidence establishing that the identified compensable employment factors are causally 

related to her stress-related condition.4

 If a claimant does implicate a factor of employment, 

OWCP should then determine whether the evidence of record substantiates that factor.5 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.6

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

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

7

 the Board 

explained that there are distinctions as to the type of employment situations giving rise to a 

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

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

 4 Leslie C. Moore, 52 ECAB 132 (2000). 

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

6 Id.

7

 28 ECAB 125 (1976). 
5

coverage under FECA.8

 When an employee experiences emotional stress in carrying out his or 

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

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

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

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

by the employing establishment or by the nature of the work.9 Allegations alone by a claimant 

are insufficient to establish a factual basis for an emotional condition claim.10 Where the 

claimant alleges compensable factors of employment, he or she must substantiate such 

allegations with probative and reliable evidence.11 Personal perceptions alone are insufficient to 

establish an employment-related emotional condition.12

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.13 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.14 

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

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

fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of 

whether such harassment or discrimination occurred. A claimant must establish a factual basis 

for his or her allegations that the harassment occurred with probative and reliable evidence.15 

With regard to emotional claims arising under FECA, the term “harassment” as applied by the 

Board is not the equivalent of “harassment” as defined or implemented by other agencies, such 

as the EEO, which is charged with statutory authority to investigate and evaluate such matters in 

the workplace. Rather, in evaluating claims for workers’ compensation under FECA, the term 

“harassment” is synonymous, as generally defined, with a persistent disturbance, torment or 

persecution, i.e., mistreatment by co-employees or coworkers. Mere perceptions and feelings of 

harassment will not support an award of compensation.16 

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

9 Supra note 7. 

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

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

12 Roger Williams, 52 ECAB 468 (2001). 

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

14 Kim Nguyen, 53 ECAB 127 (2001). 

15 James E. Norris, 52 ECAB 93 (2000). 

16 Beverly R. Jones, 55 ECAB 411 (2004). 
6

Physical contact arising in the course of employment, if substantiated by the evidence of 

record, may support an award of compensation if the medical evidence establishes that a 

condition was thereby caused or aggravated.17

ANALYSIS 

The Board finds this case is not in posture for decision. 

Appellant has not alleged that her emotional condition was due to any specific job duties. 

Rather, she has alleged that she was harassed and retaliated against and worked in a hostile work 

environment, that M.C. inappropriately touched her, that management inappropriately denied 

FMLA and placed her on AWOL, that she was inappropriately denied a hardship request, and 

that C.G., the union president, interfered with an EEO investigation. 

As a general rule, a claimant’s reaction to administrative or personnel matters falls 

outside the scope of FECA.18 The Board has long held that disputes regarding leave19 and the 

inability to obtain a transfer20 are administrative functions of the employer and, absent error or 

abuse, are not compensable.21 Regarding appellant’s allegation that her hardship application to 

change from the nightshift to the dayshift was inappropriately denied, Manager C.J. explained 

that appellant had been placed on a waiting list for the next available dayshift position, but, in the 

meantime, had transferred to a different dayshift position. There is no evidence of error or abuse 

in this administrative matter. 

Appellant also alleged that she was inappropriately denied FMLA and placed on AWOL. 

Generally, actions of the employing establishment in matters involving the use of leave are not 

considered compensable factors of employment as they are administrative functions of the 

employer and not duties of the employee. Approving or denying a leave request is an 

administrative function of a supervisor.22 The employing establishment explained that in 

May 2014, when appellant requested 480 hours of FMLA, she had only been approved for 168 

hours. When additional medical evidence was received in June 2014, the AWOL was changed 

to annual leave, sick leave, leave bank, and leave transfer hours. Although the record contains 

two settlement agreements dated August 2012 and October 2014 regarding restored leave, each 

indicated that the employing establishment was not in error. There is no evidence of error or 

abuse in this administrative matter. 

Regarding appellant’s perception that she was harassed and retaliated against by 

employing establishment management, generally, complaints about the manner in which a 

 17 Alton L. White, 42 ECAB 666 (1991). 

18 Carolyn S. Philpott, 51 ECAB 175 (1999). 

19 Jose L. Gonzalez-Garced, 46 ECAB 559 (1995). 

20 Alberta Kinloch-Wright, 48 ECAB 459 (1997). 

21 Supra note 13. 

22 David C. Lindsey, Jr., 56 ECAB 263 (2005). 
7

supervisor performs his or her duties or the manner in which a supervisor exercises his or her 

discretion fall, as a rule, outside the scope of coverage provided by FECA. This principle 

recognizes that a supervisor or manager in general must be allowed to perform his or her duties, 

and employees will, at times, dislike the actions taken. Here again, as the record contains no 

evidence that any employing establishment supervisor or manager treated appellant in a 

disrespectful manner, error or abuse in discharging management duties has not been established, 

and this allegation is not compensable.23 

Perceptions of harassment or discrimination are not compensable under FECA,24 and 

unsubstantiated allegations of harassment or discrimination are not determinative of whether 

such harassment or discrimination occurred. A claimant must establish a factual basis for his or 

her allegations with probative and reliable evidence.25 As noted, the August and October 2012 

settlement agreements regarding restored leave were resolved with no admission of error. 

Although appellant submitted several statements from coworkers, these statements are 

insufficient to meet appellant’s burden of proof. C.D. merely described a comment made by 

Manager L.S., and D.M. merely opined that Manager M.C. was unfair. While these generally 

supported appellant’s contentions, neither substantiated the type of harassment contemplated 

under FECA. Appellant, thus, submitted insufficient evidence to show a persistent disturbance, 

torment, or persecution, i.e., mistreatment by employing establishment management.26 She, 

therefore, has not established a factual basis for her claim of harassment by probative and 

reliable evidence.27

Moreover, with regard to appellant’s allegation regarding union president C.G., 

interfering with an EEO investigation, the Board has held that union activities are personal in 

nature and are not considered to be within the course of employment.28 While there is a 

recognized exception to the general rule, in that employees performing representational functions 

which entitle them to official time are in the performance of duty, the incident claimed in the 

case at hand was with regard to C.G., the union president, representing appellant regarding a 

grievance she had filed.29 Thus, it does not fall within the exception. 

With regard to appellant’s allegation that M.C. inappropriately touched her on March 9, 

2011, the Board finds that, as in the case Alton L. White, although there is some discrepancy as to 

the actual nature and extent of the physical contact between appellant and Manager M.C., the 

evidence establishes that there was some physical contact.30 It is not a question of whether the 

 23 Id.

24 Supra note 15. 

25 Id. 

26 Supra note 16. 

27 See Robert Breeden, 57 ECAB 622 (2006). 

28 Jimmy E. Norred, 36 ECAB 726 (1985). 

29 See L.D., Docket No. 15-0706 (issued May 9, 2016). 

30 Supra note 17. 
8

physical contact rose to the level of abuse. It is simply a question of whether physical contact 

arising in the course of employment is substantiated by the evidence of record.31 Appellant 

alleged that on March 9, 2011, while she was in M.C.’s cubicle discussing an AWOL 

memorandum, M.C. grabbed her arm and pushed her. M.C. agreed that she and appellant were 

discussing an AWOL memorandum, but denied that she touched appellant. L.R., a coworker, 

informed the OIG that she witnessed an incident that occurred on or about March 9, 2011 when 

M.C. became upset with appellant regarding her talking with a new employee and began berating 

appellant. L.R. witnessed M.C. place her hands on appellant and, albeit gently, push her away. 

Thus the record establishes that there was physical contact between appellant and M.C. A 

compensable employment factor has, therefore, been established.32

In denying appellant’s claim, OWCP did not review the medical opinion evidence 

submitted on the issue of causal relationship. The Board will, therefore, set aside OWCP’s 

July 27, 2016 decision and remand the case for a review of the medical opinion evidence. After 

such further development as may be necessary, OWCP shall issue a de novo decision on 

appellant’s emotional injury claim. 

CONCLUSION 

The Board finds this case is not in posture for decision. 

 31 D.S., Docket No. 15-0585 (issued July 11, 2016). 

32 Id. 
9

ORDER 

IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this opinion of the Board. 

Issued: June 27, 2017 

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