United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.G., Appellant

and

ENVIRONMENTAL PROTECTION AGENCY, 

REGION VI, Dallas, TX, Employer

__________________________________________

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Docket No. 17-1102

Issued: December 28, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 24, 2017 appellant filed a timely appeal from a March 27, 2017 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 over 

the merits of this case.

ISSUE

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

while in the performance of duty, as alleged.

FACTUAL HISTORY

On February 3, 2017 appellant, a then 41-year-old branch secretary, filed an occupational 

disease claim (Form CA-2) alleging that she sustained an emotional condition while in the 

performance of duty. She stated that the harassing, bullying, intimidating, and disparate treatment 

 

1 5 U.S.C. § 8101 et seq.
2

from her managers was causing her stress and aggravating her myalgia. Appellant advised that 

she had an ongoing Equal Employment Opportunity (EEO) case. She indicated that she first 

became aware of her emotional condition and related it to her federal employment on 

December 29, 2016. Appellant did not stop work.

In support of her claim, appellant submitted leave bank forms and a December 30, 2016 

e-mail message to her temporary supervisor, M.O., indicating that she had been experiencing 

stress, scrutiny, and harassment at work and attempted to work from home, but was unable to use 

her reasonable accommodation and forced to take medical leave until January 9, 2017.

In an August 18, 2016 report, Dr. Suzanne Slonim, a Board-certified radiologist, advised 

that appellant had uterine fibroids causing severe pelvic pain and anemia. After treatment of the 

fibroids, appellant would have severe pain, nausea, fever, and require narcotic medication. 

Dr. Slonim opined that appellant would be disabled from work for one week and may require a 

second week of working from home. After two weeks, appellant would be capable of returning to 

full-time work. On August 31, 2016 Dr. Slonim indicated on a prescription note that appellant 

underwent a “medical procedure” on August 26, 2016. She advised that appellant would be on 

restricted activity and unable to return to work until September 12, 2016. 

In reports dated December 5 and 12, 2016, Dr. Sumana Gangi, a Board-certified 

endocrinologist, indicated that appellant was seen for a medical condition and then released to 

work on December 6 and 13, 2016, respectively. In an October 21, 2016 report, he indicated that 

appellant was very stressed from work and had undergone a procedure for fibroids. Appellant had 

broken out in a rash on her face, gained 11 pounds, and presented with intermittent fatigue. 

Dr. Gangi noted that she denied weight loss, myalgia, and joint pains. 

In an e-mail message dated December 27, 2016, M.O. stated that she had reviewed 

appellant’s request to telework until January 9, 2017 and had serious concerns that it would inhibit 

her ability to perform several of the nonportable essential functions of her job, such as acting as 

the initial contact for the organization, processing and coding mail, answering telephones, 

preparing, printing, and mailing correspondence, and making copies, among other duties. 

Appellant submitted documentation related to her EEO case, including a statement of 

claims that her previous supervisor, J.S., had failed to provide an adequate reasonable 

accommodation since December 2015, placed additional restrictions on her use of telework on 

March 21, 2016, excluded her from social activities on April 1, 2016, excluded her from knowing 

about work-related information on April 5, 2016, approved an ineffective interim accommodation 

that required her to request episodic flexiplace each time she needed to telework due to her health 

issues on March 29, 2016, questioned what she would be working on while teleworking on 

March 31, 2016, and required her to take leave when portable work was available on 

June 10, 2016. 

In a December 16, 2016 e-mail correspondence, appellant indicated that she was working 

on an affidavit that needed to be completed by Tuesday, December 20, 2016 and M.O. replied that 

she was happy to grant her official time to review her work product during work hours, but could 

not grant her comp time to do this work over the weekend. The supervisor further indicated that 

if appellant did not feel that she could accomplish the work product review in addition to her other 
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duties during working hours and still meet the December 20, 2016 deadline, she could either 

request an extension or they could discuss which of her work duties they could de-prioritize on 

Monday and Tuesday in order to meet her deadline. 

In a December 27, 2016 e-mail message, M.O. stated that appellant had requested up to 10 

hours to review the affidavit over the weekend of December 17 to 18, 2016 so she assumed she 

had the affidavit to review. She indicated that they had a conversation on Monday, December 19, 

2016 about work priorities and appellant told her that they were focusing on her core work duties 

on Monday and planned to work on the affidavit review on Tuesday. Then appellant left work 

early on Tuesday and took leave for the rest of the week. M.O. stated that once appellant received 

the affidavit, she would be happy to give appellant the time she needed to review it, stating “Just 

let me know ahead of time so I know what you [a]re working on.” On December 27, 2016 

appellant replied that she was not approved to work on the EEO that weekend so she only took 

one hour to work on the investigation because she did not have M.O.’s approval. M.O. stated that 

when she disapproved appellant’s request for comp time, she told her that she would be happy to 

grant her official time during work hours. She further indicated that if there was some work that 

appellant still needed to do on the EEO matter, she was willing to grant appellant official time to 

work on it while she was teleworking that week.

In a December 28, 2016 e-mail message, appellant stated that per her doctor’s letter 

previously submitted to M.O. regarding her reasonable accommodation due to her serious health 

issues related to her disabilities to work from home because she should not operate a vehicle, she 

would be submitting a leave request from December 28, 2016 to January 9, 2017 due to serious 

health issues and stress-related issues because of continued harassment and bullying type of 

behavior from previous and current managers. 

In a second December 28, 2016 e-mail message, appellant stated that she had worked for 

the employing establishment since December 1, 2014 after which she was transferred from another 

agency as a Schedule A disabled employee. After one year of employment, she requested 

reasonable accommodation because her health issues had changed and she participated in

mediation because the agency failed to provide an adequate accommodation and disregarded the 

deadlines to respond to the reasonable accommodation. After the mediation, she was transferred 

to another division because her medical conditions were getting worse. Appellant reiterated that 

she was dealing with harassing, intimidating, bullying, and disparate treatment and discriminating 

behavior from her supervisors and filed a formal EEO complaint. 

On December 29, 2016 Dr. Valerie Peterson, a Board-certified family practitioner, 

diagnosed severe anxiety and stress. She reported that appellant was not able to focus or multitask at work and advised that she needed to be at home. Dr. Peterson opined that appellant would 

be capable of returning to the workplace on January 9, 2017. 

In a supervisory statement dated February 1, 2017, M.O. indicated that she became 

appellant’s temporary supervisor on October 31, 2016 and approved her telework requests, time 

and leave, and assisted with prioritizing her assignments and working as the go-between of her 

and her supervisor of record. She stated that she had approved appellant’s leave request for 

December 28, 2016 to January 9, 2017. On Friday, December 16, 2016 appellant requested to 

work over the weekend of December 17 to 18, 2016, which were her regular days off. She 
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requested to be compensated via compensatory time during this time period and the purpose of the 

request was to review a work product related to her EEO complaint. Being unaware of any policy, 

rule, or regulation that permitted such a request, M.O. denied appellant’s request and offered her 

the alternative of using more official time during her regular tour of duty. Appellant then asked if 

she could be approved to work official time on Monday, December 19, 2016 to review the work 

product and M.O. approved her request. 

By development letter dated February 22, 2017, OWCP advised appellant of the 

deficiencies of her claim and afforded her 30 days to submit additional evidence and respond to 

its inquiries. 

In response, appellant submitted a position description and resubmitted e-mail 

correspondence dated December 16 to 28, 2016. 

Appellant further submitted a December 28, 2016 e-mail to M.O. stating the following, “I 

will not go back and forward with you on anymore issues you are very intimidating to me.” 

In a January 26, 2017 e-mail message, M.O. stated that she was following up to their 

discussion last Thursday, January 19, 2017 where appellant offered to withdraw her EEO 

complaints in exchange for a grade increase to GS-11 doing special assistant-type work for her in 

the Air Enforcement branch in addition to continuing to do her administrative Water Enforcement 

branch work. The supervisor informed appellant that she had been advised to tell her that because 

she was in a formal process, any negotiations about a settlement must be done within the 

parameters of that process.

In an undated statement, M.O. indicated that appellant reported December 29, 2016 as the 

date she first became aware of her emotional condition and that time period was actually a time of 

reduced work demands due to the fact that most of the branch employees for whom appellant 

provided administrative support were out of the office on holiday leave. Appellant had been 

granted a reasonable accommodation to enable her to work from home during periodic and 

unplanned flare-ups of a physical condition which M.O. supported. The supervisor stated that 

during the time period in question there was no staffing shortage and workload decreased due to 

the number of staff on holiday leave. Appellant’s performance for the fiscal year 2016 and prior 

met or exceeded expectations. Since she was placed under M.O.’s temporary supervision appellant 

was counseled regarding behavioral concerns and professional demeanor in the workplace after 

reports that she had been unprofessional with an employee at the Cincinnati Human Resources 

Shared Service Center office. In January 2017, M.O. met with appellant to gather the facts around 

a meeting she had with senior management to discuss work projects that she was not assigned to. 

Appellant attended a meeting she had not been authorized nor asked to attend and M.O. wanted to 

understand how that workplace issue came to pass. The supervisor noted that the meeting took 

place in January 2017 after she originally asked appellant for a discussion in December 2016. 

By decision dated March 27, 2017, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish an emotional condition arising from a compensable 

factor of employment. It found that appellant alleged the following employment factors: (1) that 

she was not able to focus at work due to work-related stress relating to her EEO complaints; (2) she 

had been off and on leave for long periods of time due to these injuries; and (3) behavior from her 
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managers was causing stress, which was aggravating her myalgia. OWCP found that the alleged 

incidents did not occur because appellant was off work due to her personal-related medical 

condition. It further found no evidence to establish harassment, bullying, or intimidation by the 

employing establishment. OWCP noted that the e-mail correspondence between appellant and her 

supervisor who requested information regarding work product while teleworking was within the 

realm of administrative procedures.

LEGAL PRECEDENT

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

somehow related to an employee’s employment. There are situations where an injury or an illness 

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

coverage of workers compensation. Where the disability results from an employee’s emotional 

reaction to his or her regular or specially assigned duties or to a requirement imposed by the 

employment, the disability comes within the coverage of FECA.2 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.3

To the extent that disputes and incidents alleged as constituting harassment by coworkers 

are established as occurring and arising from a claimant’s performance of his or her regular duties, 

these could constitute employment factors.4 However, for harassment to give rise to a 

compensable disability under FECA there must be evidence that harassment did, in fact, occur. 

Mere perceptions of harassment are not compensable under FECA.5

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.6 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.7 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.8

 

2 5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3 See Gregorio E. Conde, 52 ECAB 410 (2001).

4 See David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

5 See Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

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

ECAB 556 (1991).

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

8 See Ruth S. Johnson, 46 ECAB 237 (1994).
6

A claimant has the burden of establishing by the weight of the reliable, probative and 

substantial evidence that the condition for which he or she claims compensation was caused or 

adversely affected by employment factors.9 This burden includes the submission of a detailed 

description of the employment factors or conditions, which believes caused or adversely affected 

a condition for which compensation is claimed and a rationalized medical opinion relating the 

claimed condition to compensable employment factors.10

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.11 If a claimant does implicate a factor of employment, OWCP should then 

determine whether the evidence of record substantiates that factor. When the matter asserted is a 

compensable factor of employment and the evidence of record establishes the truth of the matter 

asserted, OWCP must base its decision on an analysis of the medical evidence.12

ANALYSIS

Appellant alleged that she sustained an emotional condition as a result of a number of 

employment incidents and conditions. OWCP denied her emotional condition claim on the 

grounds that she did not establish any compensable employment factors. The Board must, thus, 

initially review whether these alleged incidents and conditions of employment are covered 

employment factors under the terms of FECA. The Board notes that appellant’s allegations do not 

pertain to her regular or specially assigned duties under Cutler.

13

 Rather, she has alleged that she 

was not able to focus at work due to work-related stress relating to her EEO complaints, she had 

been off and on leave for long periods of time due to these injuries, and behavior from her 

managers was causing stress, which was aggravating her myalgia.

The Board has long held that grievances and EEO complaints by themselves do not 

establish that workplace harassment or unfair treatment occurred.14 The Board finds that the 

employing establishment’s report of investigation of appellant’s previous supervisor, J.S., is not a 

finding of harassment. In the absence of such a finding, the evidence of record is insufficient to 

discharge appellant’s burden of proof to substantiate her allegations of harassment in the 

workplace.

 

9 See Pamela R. Rice, 38 ECAB 838, 841 (1987).

10 See Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11 See Dennis J. Balogh, 52 ECAB 232 (2001).

12 Id.

13 See Lillian Cutler, supra note 2.

14 See Parley A. Clement, 48 ECAB 302 (1997).
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For harassment to give rise to compensability under FECA there must be evidence that 

harassment did, in fact, occur. Mere perceptions of harassment are not compensable under 

FECA.15 The Board has recognized the compensability of verbal altercations or abuse when 

sufficiently detailed by the claimant and supported by the record. This does not imply, however, 

that every statement uttered in the workplace will give rise to compensability.16 In this case, 

OWCP found that appellant was not subjected to any harassment and did not submit any evidence 

substantiating her allegations. Specifically, there is no evidence substantiating any derogatory 

remarks made by M.O. to appellant. On the contrary, the record establishes that M.O. had a 

conversation with appellant on December 19, 2016 about work priorities and appellant told her 

that they were focusing on her core work duties on Monday and planned to work on the EEO 

affidavit review on Tuesday. M.O. further indicated that if there was some work that she still 

needed to do on the EEO matter, she was willing to grant appellant official time to work on it while 

she was teleworking that week. However, appellant left work early on Tuesday and took leave for 

the rest of the week.

The record does not contain witness statements corroborating appellant’s narrative 

statements regarding the allegedly harassing, bullying, or intimidating behavior. The evidence of 

record, therefore, is insufficient to establish that any of the alleged incidents rose to the level of 

verbal abuse or otherwise constituted a compensable work factor.17 The Board finds no evidence 

substantiating appellant’s contention that she was harassed by M.O.

Because appellant has not presented sufficient evidence that she was harassed by her 

supervisors, she has failed to identify a compensable work factor.18 Thus, she has not met her

burden of proof to establish a claim.19

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 her burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

 

15 See supra note 5.

16 See David C. Lindsey, 56 ECAB 263 (2005). The mere fact that a supervisor or employee may raise his or her 

voice during the course of an argument does not warrant a finding of verbal abuse. Joe M. Hagewood, 56 ECAB 

479 (2005).

17 See J.J., Docket No. 07-2014 (issued January 24, 2008).

18 See H.C., Docket No. 12-457 (issued October 19, 2012).

19 As appellant has not established a compensable employment factor, the Board need not address the medical 

evidence of record. Marlon Vera, 54 ECAB 834 (2003).
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ORDER

IT IS HEREBY ORDERED THAT the March 27, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 28, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board