United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chapel Hill, NC, Employer

__________________________________________

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Docket No. 18-0507

Issued: November 26, 2018

Appearances: Case Submitted on the Record

Dr. Peter J. Smith, 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 January 12, 2018 appellant, through her representative, filed a timely appeal from a

July 24, 2017 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.

3

 

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.

3 The Board notes that appellant submitted additional evidence on appeal. However, section 501.2(c)(1) of the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

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

condition in the performance of duty.

FACTUAL HISTORY

On September 29, 2015 appellant, then a 54-year-old postal clerk, filed an occupational 

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

of her federal employment.4 She noted that she first became aware of her claimed condition on 

August 20, 2014 and realized that it was caused or aggravated by her federal employment on 

September 10, 2014.

5

 On the reverse side of the claim form, appellant’s supervisor, K.P., related 

that appellant’s claim involved an incident which occurred on August 4, 2014. K.P. explained that 

she was not at work on August 4, 2014, but was instructed by her immediate supervisor, T.L., the 

officer-in-charge, to present appellant a letter of warning regarding an incident which occurred 

that day. 

By development letter dated February 9, 2016, OWCP informed appellant that further 

factual and medical evidence was necessary to establish her claim. It provided her a questionnaire 

for her completion regarding the factual circumstances of her alleged injury. OWCP afforded 

appellant 30 days to submit the necessary evidence. 

Appellant subsequently submitted a September 29, 2015 statement, she related that she 

received a letter of warning on August 20, 2014 for an August 4, 2014 incident when she failed to 

call for clerk backup at the window, which caused the employing establishment to have a wait in 

line time failure.

6

 She alleged that she was harshly criticized and threatened by management for 

her failure to act. Appellant noted that other employing establishment employees and a 204 B 

supervisor were present at the time, but none of them took action to remedy the situation. She 

alleged that the experience was psychologically and physically distressing to her. After appellant 

received the letter of warning, she learned that she was the only sales clerk working on Saturday, 

October 11, 2014. She followed the instructions previously given to her in the August 20, 2014

letter of warning and requested help at the window. Appellant alleged that S.C., the officer-incharge, publically scolded her in front of customers for calling for help as she should have known 

that there were no other clerks available that morning. Sometime later that day, S.C. apologized 

to her for publically scolding her. Appellant contended that there were numerous times when the 

lobby line was long and other coworkers and supervisors were present, but no one called for help. 

 

4 The record reflects that appellant has five other claims before OWCP. Under OWCP File No. xxxxxx692, OWCP 

denied an August 18, 2001 claim for an emotional condition with the finding that appellant had not established a 

compensable factor of employment. The other claims pertain to orthopedic conditions. 

5 The dates provided were typed. A handwritten “5” was written over the year so that it read 2015. In a February 22, 

2016 statement, appellant asserted that the correct date of injury was August 20, 2014, not 2015. She indicated that 

her supervisor, K.P. had changed the date of injury on her CA-2 form because of her August 20, 2015 statement. 

Appellant asserted that the letter of warning was dated August 19, 2014. In an undated handwritten statement, 

Supervisor K.P., stated that appellant’s “accident actually occurred in 2014 not 2015.” The record contains copies of 

the original Form CA-2 noting typed date of injury as August 20, 2014.

6

In a February 22, 2016 statement, appellant asserted that the letter of warning was dated August 19, 2014. The 

record contains an August 19, 2014 letter of warning. 
3

She alleged that she was the only person singled out by management for failing to perform this 

duty.

In a February 28, 2016 statement, K.P., appellant’s immediate supervisor, again related 

that she was on leave the day that the incident occurred, but her acting supervisor, T.L., told her to 

present appellant a letter of warning for not requesting assistance from the supervisor/postmaster. 

She related that she was told that there was a very long wait time for customers, and that there 

were two clerks on the window and an acting supervisor, who was directing customers in the lobby. 

K.P. also noted that appellant had a heavy accent and hearing problems, so management had to 

speak loudly to get her attention. She noted that appellant had since undergone medical treatment 

for her hearing loss and was seeking counseling through the Employee Assistance Program to help 

overcome her anxiety. K.P. stated that appellant was a sensitive individual who felt that everyone 

in management was against her, even after a situation had been resolved. 

On March 15, 2016 appellant responded to OWCP’s development questionnaire. She 

indicated that, as a result of a grievance, management had reduced the letter of warning to an 

official discussion. Appellant also noted that she had filed an Equal Employment Opportunity 

(EEO) complaint, but no final decision had been issued. 

OWCP also received a copy of the August 19, 2014 letter of warning which charged 

appellant with unacceptable performance/failure to follow instructions. It noted that between 

12:15 p.m. and 12:45 p.m. on August 4, 2014, appellant failed to call for clerk back-up at the 

window. OWCP advised that “this disregard for not calling for another clerk to come help you at 

the window caused [the employing establishment] to have a wait time in line failure. By grievance 

settlement dated September 9, 2014, the employing establishment agreed to rescind the letter of 

warning issued to appellant for unacceptable performance/failure to follow instruction and reduce 

it to an official discussion. 

In September 29, 2015 reports, Dr. Smith diagnosed appellant with anxiety disorder and 

major depressive disorder, recurrent. He indicated that he started treating appellant on 

September 10, 2014 for the increasing and unrelenting psychological distress caused by the verbal 

and administrative harassment directed at appellant by the employing establishment over the past 

year. Dr. Smith provided a narrative description of the August 20, 2014 letter of warning and the 

events of October 11, 2014 and opined that these experiences fueled appellant’s occupational 

disease. He also discussed other events occurring in August 2015 in which appellant felt sick or 

stressed, punished, or threatened from the employing establishment, or from customer’s outbursts. 

In an October 5, 2015 letter, Angela Purcell, a physician assistant, indicated that appellant 

had been a patient since 2007. She opined that the events which occurred at work were the etiology

of appellant’s emotional distress, hardship, and mental trauma.

In a March 10, 2016 letter, Dr. Smith opined that appellant’s condition was directly caused 

by the events that occurred at work. He alleged that appellant was treated differently by local 

employing establishment administration than her peers. Dr. Smith also noted his and appellant’s 

frustration with the claims process. 
4

By decision dated August 5, 2016, OWCP denied appellant’s claim. It found that she had 

not established a compensable factor of employment and, thus, had not established an emotional 

condition in the performance of duty. 

On August 26, 2016 OWCP received appellant’s August 25, 2016 request for an oral 

hearing before an OWCP hearing representative. 

In a September 3, 2016 letter, appellant indicated that she was enclosing 21 attachments 

detailing allegations of abuse by the employing establishment. A summary identified the

attachments as items A through U and offered an explanation of each attachment. Appellant 

alleged that on August 22, 2016, Supervisor S.S. chastised her about a clock malfunction that 

affected the entire office. She noted the letter of warning and alleged that the employing 

establishment was chronically understaffed. Appellant argued that the supervisors had lied to the 

EEO investigators, citing testimony from Supervisor K.P. She cited two other days where long 

lobby lines resulted in no discipline. Appellant argued that S.C. was aware of her letter of warning 

when she publically and harshly yelled at and humiliated her in front of customers when she called 

for help in October, which created a hostile environment. Two dates around the holidays in 

2014/2015 were noted to have long lines due to understaffing. Other statements discussed alleged 

violations of employing establishment policy for which no one was disciplined.

A telephonic hearing was held on April 20, 2017. Appellant indicated that the correct date 

of injury was August 20, 2014, when she received the letter of warning. She alleged that the letter 

of warning was unjustly issued and acknowledged that it was subsequently reduced to a discussion 

following a grievance. Dr. Smith noted that numerous documents had been submitted which 

outlined various work factors he felt caused appellant’s emotional condition. He also offered 

argument regarding harassment. 

Testimony surrounding the circumstances of the August 4, 2014 incident, which led to the 

letter of warning, was received. Dr. Smith indicated that he had requested copies of reports which 

he felt were alluded to in the warning letter. He cited employment manuals and contract language 

which he felt the employing establishment had violated or ignored. Dr. Smith also argued that the 

employing establishment was not forthcoming with information which would establish their case. 

He indicated that the letter of warning was the triggering event for appellant’s emotional injuries 

and that there was an “avalanche of events” which followed, which contributed to her condition. 

Dr. Smith noted that the letter of warning contained a “threat of termination.” He alleged that the 

employing establishment made false statements to the EEO investigator. 

Dr. Smith presented several arguments suggesting that the letter of warning was based on 

a mystery shopper experience. This was based on his interpretation of the warning letter and the 

performance goal time. Dr. Smith indicated that the labor manuals prohibited the use of such 

shopping experiences in the disciplinary processes. He also argued that appellant experienced

disparate treatment as he had no evidence that any other employee had been disciplined regarding 

the wait time matter and that plenty of opportunities for such discipline existed. Dr. Smith also 

argued that the perceived delays by the employing establishment relative to the claims process and 

the EEO process contributed to appellant’s conditions.

Subsequent to the hearing, OWCP received over 300 pages of argument and evidence in 

support of appellant’s claim. This included copies of appellant’s statements and numerous letters 
5

from Dr. Smith to the Equal Employment Opportunity Commission (EEOC), the postmaster 

general, and OWCP’s program director. A May 21, 2015 EEO decision reversed a December 11, 

2014 EEO final decision which dismissed appellant’s formal complaint of unlawful employment 

discrimination pertaining to the August 20, 2014 letter of warning. The decision found that even 

though the letter of warning had been reduced to a formal discussion, appellant had requested 

compensatory damages as a remedy. Accordingly, the formal complaint was remanded to the 

employing establishment for further processing of appellant’s complaint. The submitted portions 

of the EEO complaint, including the employing establishment investigative findings, found no 

error or abuse. Copies of mystery shopper scores unrelated to appellant’s incident were submitted 

along with handwritten and typed journal entries from appellant, which recorded her impressions 

of incidents at work between August 15 and November 9, 2014.

Dr. Smith also provided a statement wherein he argued that the issuance of the letter of 

warning was unreasonable. He also offered additional argument regarding the mystery shopper 

program and the wait time in line standard. Dr. Smith cited a recent incident in which appellant 

filed a new EEOC complaint. He argued that, while there was no direct admission of error or 

abuse by the employing establishment, culpability could be inferred from their comments and 

actions. Dr. Smith contended that S.C.’s apology was an admission of error or abuse. He also 

argued that asking an employee to submit documents to the officer-in-charge demonstrated a 

pattern of abuse by the direct supervisor. Dr. Smith also offered his analysis of the EEO 

investigative findings. 

By decision dated July 24, 2017, an OWCP’s hearing representative affirmed the August 5, 

2016 decision, finding that no compensable employment factor had been established. He noted 

that, while appellant and Dr. Smith had a conflicting impression of the work environment, the facts 

were not established by a preponderance of the evidence. 

LEGAL PRECEDENT

A claimant has the burden of proof to establish 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 factors of her federal employment.7 To establish an emotional condition in 

the performance of duty, the claimant must submit the following: (1) medical evidence 

establishing an emotional condition; (2) factual evidence identifying employment factors or 

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

opinion evidence establishing that the identified compensable employment factors are causally 

related to the emotional condition.8

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,

9

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 

 

7 Pamela R. Rice, 38 ECAB 838 (1987).

8 George H. Clark, 56 ECAB 162 (2004).

9 28 ECAB 125 (1976).
6

connection with the employment, but nevertheless does not come within coverage under FECA.10 

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.11 Allegations alone by a claimant are insufficient to establish a factual basis 

for an emotional condition claim.12 Where the claimant alleges compensable factors of 

employment, he or she must substantiate such allegations with probative and reliable evidence.13 

Personal perceptions alone are insufficient to establish an employment-related emotional 

condition.14 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.15

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.16 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.17 

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.18

For harassment or discrimination to give rise to a compensable disability under FECA, 

there must be probative and reliable evidence that the claimed harassment or discrimination did in 

fact occur.19 Mere perceptions of harassment, retaliation or discrimination are not compensable 

under FECA.20

 

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

11 Supra note 9.

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

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

14 Roger Williams, 52 ECAB 468 (2001).

15 See supra note 9.

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

ECAB 556 (1991).

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

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

19 Marlon Vera, 54 ECAB 834 (2003).

20 Kim Nguyen, 53 ECAB 127 (2001).
7

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. 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.22

ANALYSIS

The Board finds that appellant has not established that she sustained an emotional condition 

in the performance of duty. 

The Board notes that appellant’s allegations do not pertain to her regular or specially 

assigned duties under Lillian Cutler.

23

 Rather, appellant has alleged error and abuse in 

administrative matters and harassment and discrimination on the part of her managers.

Appellant’s contentions regarding the disciplinary actions relate to personnel matters 

which are not compensable absent a showing of error or abuse on the part of the employing 

establishment.24 She alleged that she was unfairly issued a letter of warning on August 19, 2014

for an August 4, 2014 incident when she failed to call for clerk backup at the window, which 

caused the employing establishment to have a wait in line time failure. The letter of warning was 

reduced to an official discussion. The Board has found that an employee’s complaints concerning 

the manner in which a supervisor performs his or her duties as a supervisor, or the manner in which 

a supervisor exercises his or her supervisory 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 that employees will at times dislike the actions taken, but 

mere disagreement or dislike of a supervisory or management action will not be actionable, absent 

evidence of error or abuse.25 Despite appellant’s allegations of error and criticism of the EEO 

investigation, she has presented no corroborating evidence to support that the employing 

establishment erred or acted abusively with regard to the letter of warning. There is also no 

evidence that the employing establishment had lied about the basis for the letter of warning. 

Although the employing establishment reduced the letter of warning to a discussion based on a 

grievance agreement, the Board has held that the mere fact that personnel actions are later modified 

or rescinded does not, in and of itself, establish error or abuse on the part of the employing 

 

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

22 Id.

23 See supra note 9.

24 See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41 

ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).

25 See Marguerite J. Toland, 52 ECAB 294 (2001).
8

establishment.26 There is no admission of error, fault, or legal violation on the part of the

employing establishment in the EEOC documents submitted and no final EEOC decision has been 

issued. The Board thus finds that appellant has not established a compensable employment factor 

with regard to the above-noted administrative and personnel matters.

Appellant also complained of frustration with regard to the employing establishment’s 

handling of her EEO and FECA claims. However, this is an administrative matter and not 

compensable absent a showing of error or abuse on the part of the employing establishment.27 She 

did not submit probative evidence establishing error or abuse regarding the above-noted 

administrative matters. Thus the Board finds that she has not established a compensable factor in 

this regard.

Appellant also alleged harassment by management. She contended that management’s 

request that she submit documents to the officer in charge constituted harassment. The Board finds 

that the factual evidence of record is insufficient to establish that appellant was harassed or singled 

out by management. Absent corroborating evidence, this allegation alone does not demonstrate a 

pattern of abuse by management. As noted, mere disagreement or dislike of a supervisory or 

management action will not be actionable, absent evidence of error or abuse.

28

 While appellant 

also asserted other allegations of harassment, such as an August 22, 2016 time clock malfunction, 

she provided no factual evidence in support of her allegations. As there is no factual evidence to 

support her allegations of harassment, she has not established a compensable factor of employment 

with respect to these allegations.29

Regarding appellant’s allegation that she was publically scolded/verbally abused by S.C. 

on October 11, 2014 in front of employing establishment customers, the Board has generally held 

that being spoken to in a raised or harsh voice does not of itself constitute verbal abuse or 

harassment.30 She did not submit any evidence such as witness statements to corroborate her 

allegation of verbal abuse. Furthermore, the record reflects that at the time appellant had problems 

with her hearing and management had to be loud to get her attention. In Carolyn S. Philpott31 the 

Board found that a loud discussion between a supervisor and the claimant on the workroom floor 

was not error or abuse. The Board noted that, despite the claimant’s arguments that her supervisor 

should have spoken or reprimanded her in private, there was no evidence that the supervisor’s 

remarks were unwarranted. Furthermore, the Board noted that the fact that the supervisor raised 

his voice during the course of conversation did not amount to verbal abuse as there was no evidence 

that he belittled the claimant. The Board finds that appellant has not established error or abuse

merely because S.C. raised her voice on October 11, 2014 in the work area. To establish error or 

 

26 Paul L. Stewart, 54 ECAB 824 (2003).

27 Supra note 17.

28 See supra note 26.

29 Supra note 19.

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

31 51 ECAB 175, 179 (1999); Karen K. Levene, 54 ECAB 671 (2003); J.C., Docket No. 14-0299 (issued 

October 16, 2014).
9

abuse by her supervisor in reprimanding her, she must prove more than a raised voice.32 While 

appellant acknowledged that S.C. later apologized to her, the Board has held that an apology does 

not support an admission of fault or wrongful actions.33 Thus, the Board finds that appellant has 

not established a compensable employment factor with respect to this allegation.

Because appellant has not substantiated a compensable factor of employment as the cause 

of her emotional condition, the Board will not address the medical evidence.34

On appeal, appellant’s representative provided his interpretations of the evidence and 

reiterated arguments previously made. However, as appellant has not established a compensable 

factor of employment, she has not met her burden of proof. 

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.

 

32 M.H., Docket No. 12-0130 (issued December 4, 2012); J.R., Docket No. 11-0334 (issued October 26, 2011); J.S.,

Docket No. 09-0442 (issued September 15, 2009); David C. Lindsey, 56 ECAB 263 (2005).

33 M.R., Docket No. 11-0980 (issued August 15, 2012).

34 Karen K. Levene, 54 ECAB 671 (2003).
10

ORDER

IT IS HEREBY ORDERED THAT the July 24, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: November 26, 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