United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.H., Appellant

and

U.S. POSTAL SERVICE, RICHLAND 

STATION, Dallas, TX, Employer

__________________________________________

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Docket No. 17-1203

Issued: January 9, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 May 9, 20171appellant filed a timely appeal from a November 10, 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 the case.

ISSUE

The issue is whether appellant has met her burden of proof to establish that she developed 

an emotional condition in the performance of duty.

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from November 10, 2016, the date of OWCP’s last decision was 

May 9, 2017. Since using May 10, 2017, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the 

U.S. Postal Service postmark is May 9, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 12, 2015 appellant, then a 28-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that she developed post-traumatic stress disorder and mental 

stress on December 6, 2014. The employing establishment advised that appellant stopped work

on December 31, 2014 and had not returned.

In a narrative statement, appellant asserted that on December 6, 2014 she received a text 

message from S.W., her supervisor. She reported that the text read, “Well at least I tried, one 

day you might say what the hell I’m gonna give him some.” Appellant alleged that this message 

made her uncomfortable, caused her stress, and exacerbated her gastrointestinal issues. She felt 

weak and vomited for a few days and then sought medical attention. Appellant’s physician 

informed her that her stress and anxiety were causing her stomach symptoms. Appellant 

reported the sexual harassment to her station manager, J.S., on December 18, 2014 when she 

returned to work. She also worked on December 26 and 30, 2014. Appellant indicated that S.W.

appeared at her duty station after her return to work.

Appellant’s supervisor, J.S., controverted appellant’s claim on January 20, 2015 and 

asserted that she filed the claim due to pending corrective action and because she was a 

disgruntled employee. The employing establishment noted that an internal investigation was 

being conducted regarding appellant’s allegations of sexual harassment, but was still pending. 

In a letter dated February 12, 2015, OWCP requested additional factual and medical 

evidence from appellant. It also requested additional information from the employing 

establishment on that same date.

Appellant provided a statement from a coworker, C.T., alleging that S.W. had made 

unwanted sexual advances toward her. She also submitted a report by Dr. Jerry Franz, an

occupational medicine physician, who diagnosed anxiety, depression, and stress due to 

appellant’s work duties.

In a decision dated April 1, 2015, OWCP denied appellant’s emotional condition claim,

finding that she had not substantiated a compensable factor of employment as causing or 

contributing to her diagnosed condition. 

Appellant requested reconsideration on November 30, 2015. She provided her Equal 

Employment Opportunity (EEO) investigative file and an affidavit. The EEO materials included 

appellant’s review of text messages with S.W. beginning with a breakfast invitation on 

October 14, 2014 which she declined. Appellant denied providing S.W. with her telephone 

number. She applied for and received a position as a 204B and S.W. began training her. This 

interaction began professionally, but S.W. later began to make suggestive comments after the last 

carrier left for the day. He continued to contact appellant directly, through calls and texts, for 

dates, sex, oral sex, as well as offering her money. Appellant declined S.W.’s requests and 

informed him that she had a boyfriend. S.W. invited her to his house on November 17, 2014 and 

again asked for sex on December 6, 2014. Appellant alleged that S.W. sexually harassed her 

from October through December 2014. She alleged that she was afraid of S.W. because he had 

been a Marine and “knew how to put people down.” S.W. informed her of his physical 

altercations at the workplace and that he brought guns to work. He insinuated that he struggled 
3

with post-traumatic stress disorder which caused him to explode with coworkers. S.W. informed 

appellant that he had software which enabled him to gain access to personal information 

including home addresses. He told appellant that supervisors, J.S., and S.O., spread rumors that 

he and appellant were having a sexual relationship. Appellant stopped working as a 204B 

because she was uncomfortable with S.W. A coworker informed her of similar harassment by 

S.W.

Appellant noted on December 18, 2014 that S.O., a female supervisor, instructed her to 

report for an attendance-related predisciplinary interview. She asked that supervisors S.O. and 

J.S. stop spreading rumors concerning her relationship with S.W. Both denied knowledge of the 

rumors. Appellant then informed the supervisors of S.W.’s sexual harassment of her and that she 

had documentation. On that same date J.S. instructed appellant to go home after she confronted 

him and S.W. about the harassment, alleging that she had instigated a verbal altercation. J.S. 

asserted that S.W. was pending removal from the employing establishment. Appellant claimed 

that J.S. retaliated against her because of her harassment complaint and that the employing 

establishment investigator, R.D., was alleged to have had a sexual relationship with J.S. She

noted that she had no further contact with R.D. after the initial interview. J.S. denied that 

appellant’s discipline was retaliation for EEO activity or based on discrimination.

Appellant submitted a series of text messages, purportedly from S.W., originating at

telephone number xxx-xxx-4151, which began with a breakfast invitation on October 14, 2014 

which appellant refused noting that she would like to “keep things professional.” In her EEO 

investigative affidavit appellant provided the dates for the texts she submitted. In a 

November 14, 2014 text, S.W. noted, “Plus you would look a whole lot sexier in different 

outfits.” He texted on November 15, 2014, “Please don’t get upset. But I’m attracted to you 

respectfully. I truly enjoy speaking with you. I’m afraid of one thing but I still like our 

conversations.” S.W. indicated that he did not want to threaten appellant, but that they could be 

“buds” and “platonic.” Appellant noted that she did not talk to coworkers of the opposite sex 

outside of work and that she did not want things to be awkward. S.W. replied that she would not 

feel odd as his personality would not allow it. He asked, “Let’s just keep it fun ok?” S.W. then 

asked if appellant was interested in females. He noted, “I’m not complaining or changing, you 

still what you are to me.” S.W. added, “Beautiful” and then apologized. Appellant assured him 

that she was not mad on Sunday, November 16, 2014. 

In a text dated November 17, 2014, S.W. informed appellant that it was okay if they 

dated, providing he was her type. Appellant asked that he be specific about dating. S.W. noted 

that he did not want to offend appellant or chase her away. Appellant replied that they were 

“cool.”

In texts dated November 19, 2014, appellant apologized for missing S.W.’s call and he 

replied, “Just mistreat me.” She indicated that she was shaking her head and laughing out loud. 

In November 24, 2016 texts, S.W. directed appellant to call him if she needed or wanted him.

Appellant indicated that she was working. On November 25, 2014 S.W. noted that he was at a 

restaurant alone wanting appellant to discuss work. Appellant indicated that she needed more 

training with S.W. In a November 28, 2014 text, S.W. noted that it was fun working with 

appellant and that he almost felt he was working with his baby sister and “at time with America’s 

next top model who’s full of drama.” S.W. noted on November 29, 2014 that he knew appellant 

had a boyfriend, “but I still want some of you.” Appellant replied that he was a trip and 
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‘laugh[ed] out loud’. S.W. noted that appellant could treat him badly, but that he still wanted her 

respectfully. Appellant replied that she would not do that and ‘laugh out loud.’ S.W. informed 

appellant that he had a “huge crush” on her and that he hoped she would “want me sorry mean 

need me tonight.” S.W. then noted, “Haha you did need me.” Appellant noted that she needed 

him “just for that” and that she closed by herself. He noted that he had lost appellant from this 

day forward. Appellant told him to hush. 

On Monday, December 1, 2014 S.W. texted that appellant would miss him when he was 

gone. In a series of texts dated December 5, 2014, at 8:24 p.m., S.W. asked if appellant wanted 

him to close, and noted that he would behave. Appellant replied that he could, but that J.S. was 

still there. At 8:46 p.m. S.W. noted that he was “here waiting for you to be alone.” Appellant 

asked if that were true and S.W. noted that a carrier just came back at 8:56 p.m. In her affidavit, 

appellant noted her belief that S.W. was parked outside the employing establishment watching 

during the course of the December 5, 2014 text messages. At 9:14 p.m. he asked if J.S. was still 

at work and appellant replied in the affirmative. S.W. noted, “Damn, he’s blocking.” He 

indicated that he was going to stay until 9:35 p.m. and that he wanted to hold appellant for five 

seconds adding, “That’s like a whole day.” S.W. then texted, “What do you think? We should 

meet somewhere once you leave and just keep it moving?” Appellant replied at 9:37 p.m., “It’s 

up to you. J.S. just left. You don’t need no hug do you? LOL.” On December 6, 2014 S.W. 

texted “You looked so sexy in those jeans. Last chance to sleep with you....” Appellant replied, 

“Thank [you]. That’s not going to happen, sir.” S.W. texted, “Well at least I tried. One day you 

might say what the hell I’m gonna give him some.”

Appellant also described conversations with S.W. alleging that he suggested that they get 

married. She asserted that he told her all the “sexual things” he could do to her and what she 

could do for him. S.W. allegedly informed appellant that she could live in one of his properties 

rent free and that he wanted her to have his babies. In a voicemail he noted that appellant was 

welcome at his home anytime of the day or night. S.W. suggested that he could make people at 

the employing establishment miserable.

Supervisor S.W. completed an EEO interview on December 23, 2014 and admitted 

asking appellant for breakfast which she declined. He did not recall asking appellant for sex on 

December 6, 2014. S.W. denied e-mailing, texting, or calling employees for sex. He indicated 

that he made comments that a person was sexy if they looked nice. S.W. noted that he did ask 

appellant out, but that she told him she had a boyfriend. He did not believe that she had a 

boyfriend and thought she was just telling him that. S.W. agreed that he offered for appellant to 

come by his house “so that she could use his washer and dryer.” He opined that he and appellant 

were friends and that she never seemed bothered by him. S.W. alleged that he was respectful to 

appellant. He also asserted that appellant had talked about her personal life and that she told him 

she “liked talking to him.”

The EEO investigator confirmed that the text messages to appellant were from S.W. 

Appellant submitted interviews with C.T., who also alleged that S.W. sexually harassed 

her and T.C., another coworker, who noted that S.W. wanted to be friends and, when she told 

him she was married with a child, asked for her number. She refused, but later found he 

attempted to determine her route.
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By decision dated February 26, 2016, OWCP denied modification of its April 2, 2015 

decision. It reviewed the additional evidence submitted and found that appellant had not 

substantiated a compensable factor of employment regarding harassment as there was no final 

decision to show that the employing establishment was at fault related to the alleged sexual 

harassment. OWCP noted that there was no proof that the text messages came from S.W. It also 

found no error or abuse on the part of the employing establishment.

On August 16, 2016 appellant requested reconsideration. She disputed the allegation that 

the text messages did not come from S.W. and provided a telephone number xxx-xxx-4151, from 

an internet site which was attributed to S.W. and correlated to the number on the texts that 

appellant received. Appellant also provided an e-mail address from the employing 

establishment’s counsel dated January 28, 2015 which apologized for appellant’s subjection to 

“unwanted advances from [S.W.] and requested any additional information besides the texts and 

her statement in regard to “pending, potential discipline for [S.W.].” Appellant asserted 

that S.W. told her how he had avoided a previous sexual harassment case by using the accuser’s 

words against her. She noted that EEO had not issued a final decision. 

By decision dated November 10, 2016, OWCP reviewed the merits of appellant’s claim, 

but denied modification of its prior decisions.

LEGAL PRECEDENT

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,

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the Board 

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

compensable emotional condition arising under FECA.4 There are situations where an injury or 

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

coverage under FECA.5 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.6 In contrast, a disabling condition 

resulting from an employee’s feelings of job insecurity per se is insufficient to constitute a 

personal injury sustained in the performance of duty within the meaning of FECA. Thus 

disability is not covered when it results from an employee’s fear of a reduction-in-force. Nor is 

disability covered when it results from such factors as an employee’s frustration in not being 

permitted to work in a particular environment or to hold a particular position.7 

 

3 28 ECAB 125 (1976).

4 5 U.S.C. §§ 8101-8193.

5 See Robert W. Johns, 51 ECAB 136 (1999).

6 Supra note 3.

7

Id.
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.8 Where the evidence 

demonstrates that the employing establishment either erred or acted abusively in discharging its 

administrative or personnel responsibilities, such action will be considered a compensable 

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

evidence. Personal perceptions alone are insufficient to establish an employment-related 

emotional condition.10

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 of 

harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of 

harassment or discrimination are not determinative of whether such harassment or discrimination 

occurred. 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.11

ANALYSIS

The Board finds this case not in posture for decision.

Appellant has attributed her emotional condition to a variety of factors, but not to 

difficulties in carrying out her employment duties. She, therefore, has not implicated a 

compensable factor of employment under Cutler.12

In Thomas D. McEuen,13 the Board held that an employee’s emotional reaction to 

administrative actions or personnel matters taken by the employing establishment is not covered 

under FECA as such matters pertain to procedures and requirements of the employing 

establishment and do not bear a direct relation to the work required of the employee. The Board 

noted, however, that coverage under FECA would attach if the facts surrounding the 

administrative or personnel action established error or abuse by employing establishment 

superiors in dealing with the claimant. Absent evidence of such error or abuse, the resulting 

emotional condition must be considered self-generated, and not employment generated. In 

determining whether the employing establishment erred or acted abusively, the Board has 

examined whether the employing establishment acted reasonably.14 

 

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

9 Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 

ECAB 566 (1991). 

10 Roger Williams, 52 ECAB 468 (2001).

11 Alice M. Washington, 46 ECAB 382 (1994); E.C., Docket No. 15-1743 (issued September 8, 2016).

12 Supra note 3.

13 Supra note 9.

14 See Richard J. Dube, 42 ECAB 916, 920 (1991).
7

Appellant has attributed her emotional condition to administrative actions of the 

employing establishment which she asserted were erroneous. She alleged that she was 

improperly subjected to discipline on December 14, 2014 when supervisor J.S. sent her home for 

refusing to obey instructions and instigating a verbal altercation. Disciplinary actions are 

considered administrative actions.15 Appellant did not provide any independent or probative 

evidence to establish that the J.S. erred or was abusive in issuing the discipline.16 Therefore she 

has not established a compensable factor in this regard.

Appellant also alleged that S.W. sexually harassed her from October through 

December 2014. In support of this allegation, appellant submitted a series of text messages 

purportedly from S.W. OWCP initially discounted these texts finding that there was no basis for 

determining that the texts came from S.W. and also asserting that there was no final adverse EEO 

decision or determination from the employing establishment investigation establishing sexual 

harassment through the texts. 

The Board finds that the record supports that the submitted text messages were from S.W. 

The EEO investigator accepted that the texts were from S.W., appellant supplied evidence that 

this telephone number was that of S.W., and there is no contrary evidence from the employing 

establishment or S.W.17 The Board further notes the issue is not whether the claimant has 

established harassment under standards applied by the EEO. Rather, the issue is whether the 

claimant, under FECA, has submitted evidence sufficient to establish an injury arising in the 

performance of duty. To establish entitlement to benefits, the claimant must establish a factual 

basis for the claim by supporting allegations with probative and reliable evidence.18

The Board notes that OWCP had allotted time for the employing establishment to 

respond to appellant’s allegations. However, no response was received. Nevertheless, OWCP 

found that appellant had not established any compensable factors of employment. 

OWCP procedures provide: 

“If an employing [establishment] fails to respond to a request for comments on 

the claimant’s allegations, the [claims examiner] may usually accept the 

claimant’s statements as factual. However, acceptance of the claimant’s 

statements as factual is not automatic in the absence of a reply from the 

[employing establishment], especially in instances where performance of duty is 

questionable. The Board has consistently held that allegations unsupported by 

probative evidence are not established. James E. Norris, 52 ECAB 93 (1999); 

Michael Ewanichak, 48 ECAB 364 (1997). The [claims examiner] should 

 

15 L.R., Docket No. 14-1990 (issued January 17, 2015).

16 E.C., Docket No. 15-1743 (issued September 8, 2016).

1717 See C.V., Docket No. 16-0699 (issued November 4, 2016) (the Board accepted the texts without requiring a 

substantiating source and with no contrary evidence).

18 Kathleen A. Donati, 53 ECAB 759 (2003); Martha L. Cook, 47 ECAB 226, 231 (1995); D.K., Docket No. 08-

0157 (issued April 24, 2008).
8

consider the totality of the evidence and evaluate any inconsistencies prior to 

making a determination.”

19

Based on appellant’s EEO affidavit, the January 20, 2015 letter from J.S., and the e-mail 

from the employing establishment’s attorney, the Board concludes that the employing 

establishment conducted an investigation into appellant’s allegations. Appellant averred that 

once she presented the evidence and interviewed with the employing establishment official, she 

did not hear anything further from the employing establishment. The Board finds that it is 

unable to make an informed decision in this case as the employing establishment did not respond 

to the request for comment made by OWCP in the February 12, 2015 development letter. 

Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a 

disinterested arbiter but, rather, shares responsibility in the development of the evidence, 

particularly when such evidence is of the character normally obtained from the employing 

establishment or other government source.20 Since appellant’s allegations indicate that the 

employing establishment would have in its possession evidence relevant to appellant’s sexual 

harassment allegations, (i.e., findings of the Postal Inspection Service’s investigation) OWCP 

should obtain a response from the employing establishment to the allegations of sexual 

harassment and any relevant evidence or argument.21

This issue of the case will, accordingly, be remanded to OWCP for further development 

of the evidence regarding appellant’s allegations of sexual harassment. It shall request that the 

employing establishment provide a detailed statement and relevant evidence and/or argument 

regarding appellant’s allegations. Following this and any necessary further development, OWCP 

shall issue a de novo decision regarding whether appellant has established any compensable 

factors of employment regarding sexual harassment and, consequently, sustained an injury in the 

performance of duty.

CONCLUSION

The Board finds that appellant has not established any compensable factors of 

employment relative to administrative or personnel matters. The Board further finds that the 

case is not in posture for decision with regard to whether appellant has established a 

compensable factor of employment as to allegations of sexual harassment. The case is remanded 

for further evidentiary development as to whether appellant has sustained an injury in the

performance of duty.

 

19 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(d)(1) 

(June 2011).

20 See K.W., Docket No 1.5-1535 (issued September 23, 2016) (remanding the case for further development by 

OWCP when the employing establishment did not provide an investigative memorandum in an emotional condition 

claim based on sexual harassment).

21 Id.; see 20 C.F.R. § 10.117(a), which provides, the employing establishment who has reason to disagree with 

any aspect of the claimant’s report shall submit a statement to OWCP that specifically describes the factual 

allegation or argument with which it disagrees and provide evidence or argument to support its position. The 

employing establishment may include supporting documents such as witness statements, medical reports or records, 

or any other relevant information.
9

ORDER

IT IS HEREBY ORDERED THAT the November 10, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision.

Issued: January 9, 2018

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