United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.O., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. COAST GUARD, Washington, DC, 

Employer

__________________________________________

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Docket No. 20-1271

Issued: March 9, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 16, 2020 appellant filed a timely appeal from an April 1, 2020 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 has met her burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

FACTUAL HISTORY

On June 11, 2019 appellant, then a 50-year-old paralegal specialist, filed an occupational 

disease claim (Form CA-2) alleging that she sustained several conditions due to work-related 

 

1 5 U.S.C. § 8101 et seq.
2

stress, including bipolar disorder, hypertension, incontinence/flatulence, elevated cholesterol, and 

diabetes. She indicated that she started working as a paralegal specialist for the employing

establishment on October 20, 2014. Appellant maintained that her supervisor, L.M., created a 

stressful and hostile work environment as time progressed, and indicated that there were Equal 

Employment Opportunity Commission (EEOC) issues. She asserted that L.M. did not like the 

way she communicated and asked her if she would quit her job. Appellant noted that she first 

became aware of her claimed conditions on October 20, 2014 and first realized their relation to her 

federal employment on July 31, 2018. She stopped work on July 17, 2017. 

In a June 10, 2019 statement, appellant further discussed her claimed employment-related 

conditions and again claimed that her work environment aggravated her health. She maintained 

that L.M. intentionally exposed her to a hostile work environment and asked if she was going to 

quit “due to circumstances surrounding my employment.” Appellant indicated that, due to 

workplace stress, she had to go on leave under the Family and Medical Leave Act (FMLA) in 

July 2018 and then had to file for disability retirement in July/August 2018.

Appellant submitted medical evidence in support of her claim, including reports of

Dr. Huong T. Dang, a Board-certified psychiatrist, and Dr. Oladapo Olarinde, a Board-certified 

family practitioner. In an August 7, 2018 report, Dr. Dang indicated that appellant reported 

experiencing stress in dealing with her supervisor. She discussed appellant’s medical history and 

diagnosed, inter alia, unspecified bipolar and related disorder, and depressive disorder with 

psychotic features. Appellant also submitted time and attendance summary reports from July and 

September 2018. 

In a June 25, 2019 development letter, OWCP requested that appellant submit additional 

factual and medical evidence in support of her claim, including a physician’s opinion supported 

by a medical explanation regarding the cause of her claimed emotional condition. It provided a 

questionnaire for her completion, which posed questions regarding her claimed employment 

factors. OWCP afforded appellant 30 days to respond. 

In response, appellant submitted on July 2, 2019, answers to the questionnaire provided by 

OWCP. She asserted that L.M. treated her differently on purpose due to her race and that the 

harassment was continuous in nature. Appellant asserted that L.M. retaliated against her for filing 

an EEOC complaint in 2016.

Appellant submitted documents relating to the EEOC complaint she filed in 2016. In 

connection with this claim, she claimed that in October 2015 she was improperly instructed not to 

take sick leave for the rest of the year and that in December 2015 she was denied compensatory 

time. Appellant also alleged that on December 24, 2015, L.M. accused her of “gaming the system”

when she tried to change her schedule and that on February 15, 2016 she wrongly did not receive 

holiday pay. She further claimed that on March 1, 2016 she was approved for reasonable 

accommodation that did not address her needs and that on March 30, 2016 L.M. called her 

“stupid.” Appellant alleged that on September 8, 2016 she was given an improper verbal 

reprimand when L.M. asked her if she was going to quit her job and that on an unspecified date 

her work duties were wrongly reduced and her work was delegated to another employee.
3

Appellant submitted an April 16, 2019 final EEOC decision, which addressed her appeal 

of a September 28, 2017 final EEOC decision denying her claims of discrimination. In this 

decision, an EEOC official addressed each of her above-noted claims and found that it had been 

properly determined in the prior decision dated September 28, 2017 that the employing 

establishment did not subject her to discrimination or other wrongdoing. The official found that 

the employing establishment provided reasonable accommodation to appellant for her bipolar 

disorder by allowing her to change her schedule and that it appropriately handled matters relating 

to sick leave, holiday pay, and compensatory time. Appellant noted that L.M. explained that she 

reassigned some of appellant’s tasks to another employee because the work schedule of that 

employee made it more suitable for appellant to perform those tasks. The official indicated that 

the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after 

appellant improperly sent out a draft in portable document format (PDF), but that she indicated 

she might have stated that it would be stupid to put a draft into PDF. She noted that it was 

confirmed that L.M. told appellant that she was “gaming the system” on December 24, 2015 when 

appellant attempted to change her schedule in the middle of a pay period to get more holiday time. 

The official noted it was established that on September 8, 2016 L.M told appellant that she should 

be careful about what she stated to people. In addition, it was established that L.M. asked appellant 

whether she intended to quit and that, when appellant stated that she did not, L.M. responded by 

saying, “Good.” The official noted that L.M. advised that she was not angry when she made these 

statements, but rather wished to provide constructive criticism at a time when appellant was having 

difficulties communicating with coworkers. She concluded that, when considering L.M.’s 

comments and actions in context, it had not been shown that L.M. subjected appellant to 

discrimination or created a retaliatory or hostile work environment.2

By decision July 31, 2019, OWCP denied appellant’s claim for an employment-related 

emotional condition. It determined that she had not established a compensable employment factor. 

On August 5, 2019 appellant requested a hearing before a representative of OWCP’s 

Branch of Hearings and Review. During the hearing held on January 16, 2020, she testified that 

there was no person that witnessed or overheard L.M. calling appellant stupid on March 30, 2016. 

Appellant explained that she was attempting to send a document and did not realize that it was a 

PDF document. She testified that L.M. threw a stapler at her on October 20, 2014 and explained 

that L.M.’s actions against appellant progressively worsened and that her statements to appellant

became intolerable. Appellant indicated that L.M. asked her whether she was going to quit and 

asserted that her working conditions caused or worsened her medical conditions. She explained 

that she had appealed the EEOC decision denying her complaint, but asserted that the ruling was 

not in her favor because her complaints were not understood. 

After the hearing, additional documents were added to the case record, including the 

employing establishment’s January 24, 2020 proposed removal due to appellant’s excessive 

absences, a February 14, 2018 notice of response deadline, August 4, 2016 and January 9, 2017

affidavits that L.M. produced in conjunction with appellant’s EEOC complaints, and August 10, 

2016 and January 13, 2017 statements appellant produced in response to L.M.’s EEOC affidavits.

 

2 Appellant also submitted additional medical evidence in support of her claim. 
4

In her August 4, 2016 affidavit, L.M. indicated that she provided reasonable 

accommodation to appellant by approving appellant’s request regarding telework days. She noted 

that the human resources office advised her that she could not approve appellant’s request to 

change appellant’s schedule on short notice in order to receive pay for federal holidays. L.M. 

indicated that in December 2015 appellant sent out a draft document as a PDF document despite 

the fact that such documents are normally sent out in Microsoft Word format. She noted that she 

had a conversation with appellant, who indicated that she had intentionally sent the document as a 

PDF document because she thought it was a good idea. L.M. reported that she did not call 

appellant stupid, but might have stated that it would be stupid to send the draft in the wrong format. 

With regard to appellant’s allegation that she was accused of “gaming the system” with respect to 

her request to change her work schedule, L.M. explained that she told appellant that it would be 

improper and gaming the system, to change her schedule in the middle of a pay period in order to 

receive pay for a holiday. She noted that appellant did not have any accrued sick leave and owed 

advanced sick leave. Therefore, L.M. denied appellant’s request for additional advanced sick 

leave. She indicated that appellant was advised that she could not take additional advanced sick 

leave unless the FMLA covered it. L.M. explained that she had taken similar action towards 

another similarly situated employee.

In an August 10, 2016 affidavit produced in response to L.M.’s August 4, 2016 affidavit,

appellant contested L.M.’s assertion that it was reasonable to deny appellant’s request to change 

her workdays to reflect that a given week had a holiday. She claimed that L.M. did, in fact, call 

her stupid with respect to the matter involving the PDF document, and expressed her belief that 

L.M. was accusing her of theft when she stated that she was gaming the system. Appellant also 

generally contested L.M.’s assertions that she had properly handled matters relating to leave usage

and work assignments. 

In her January 9, 2017 affidavit, L.M. indicated that she recalled meetings with appellant

on September 8 and 15, 2016. She explained that she previously had a discussion with appellant

and another paralegal and needed to follow-up with appellant regarding a September 8, 2016 

e-mail that appellant sent about ineffective communication with the other paralegal. L.M. 

indicated that she discussed the problems with appellant, but was not angry during the meeting. 

She noted that during the second meeting on September 15, 2016 she advised appellant that she 

needed to be careful about what she stated to people and consider their points of view. L.M. 

indicated that this comment was made in the context of the other paralegal having felt that appellant 

made various accusations against her. She also noted that, during this meeting, she asked appellant

if she was considering quitting because of the communication issues and overlapping schedule 

problems among the clerks. When appellant indicated that she was not quitting, L.M. noted that 

she replied, “Good.” She explained that the following week after the progress review, appellant

told her that she felt that the discussion regarding quitting constituted constructive discharge and 

that she felt that she was hostile. L.M. noted that she apologized to appellant and told appellant

that she was trying to speak openly and plainly. She discussed the assignment of work and 

explained that all assignments were properly made given the work start times for the various clerks 

as well as the fact that appellant did not work well with one of the attorneys. L.M. also explained 

that appellant had been cordial towards her and indicated that she, as the supervisor, had remained 

cordial towards appellant. She indicated that she did not recall telling appellant that a certain work 

assignment was none of her business. L.M. indicated that appellant’s manner of speaking was at 
5

times vague and imprecise and she noted that had asked appellant to choose her words more 

thoughtfully.

In a January 13, 2017 statement, appellant asserted that L.M. did, in fact, tell appellant that

a work assignment involving redaction of information was none of her business. She restated her 

belief that L.M. unfairly reprimanded her during the September 15, 2016 meeting and that she 

made improper comments about her communication skills. 

The case record was also supplemented to include the original September 28, 2017 final 

EEOC decision on appellant’s complaint. In this decision, an EEOC official determined that the 

full evidentiary record did not establish that L.M. subjected appellant to discrimination or created 

a retaliatory or hostile work environment. She found that the employing establishment provided 

reasonable accommodation to appellant for appellant’s bipolar disorder and appropriately handled 

matters relating to sick leave, holiday pay, and compensatory time. The official noted that L.M. 

explained that she reassigned some of appellant’s tasks to another employee because the work 

schedule of that employee made it more suitable for her to perform those tasks. She indicated that 

the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after 

appellant improperly sent out a draft in PDF, but that L.M. had indicated that she might have stated

that it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M. 

told appellant that she was gaming the system, and that she should be careful about what she stated

to people. In addition, the EEOC decision established that L.M. asked appellant whether she 

intended to quit and that, when appellant stated that she did not, L.M. responded by saying, 

“Good.” The official concluded that, when considering L.M.’s comments and actions in context,

no improper actions were committed. 

By decision dated April 1, 2020, OWCP’s hearing representative affirmed the July 31, 

2019 decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.4 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

To establish an emotional condition in the performance of duty, a claimant must submit: 

(1) factual evidence identifying an employment factor or incident alleged to have caused or 

contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or 

 

3 Supra note 1.

4 A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

5 20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued 

October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
6

she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion 

evidence establishing that the accepted compensable employment factors are causally related to 

the diagnosed emotional condition.6

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

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

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

description of the employment factors or conditions which he or she 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, it must base its decision on an analysis of the medical evidence.12

 

6 See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014); 

Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

7 Lillian Cutler, 28 ECAB 125 (1976).

8 A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

9 B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

10 P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11 See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

12 Id.
7

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

Appellant alleged that she sustained an emotional condition due to various incidents and 

conditions at work. Therefore, the Board must initially review whether these alleged incidents and 

conditions are covered employment factors under the terms of FECA. The Board notes that 

appellant’s claim does not directly relate to her regular or specially assigned duties under Lillian 

Cutler.

13

 Rather, appellant claimed that her supervisor, L.M., committed error and abuse with 

respect to various administrative/personnel matters. She also claimed that L.M. subjected her to 

harassment and discrimination.

With respect to administrative or personnel matters, appellant claimed that L.M. 

mishandled matters related to sick leave, holiday pay, compensatory pay, reasonable 

accommodation requests, and the assignment of work tasks. The Board has held that 

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.14 However, the Board has also 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.15 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.16

The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted documents from an 

EEOC claim she filed in 2016, which concerned some of these matters, but the communications 

did not show that the employing establishment committed error or abuse with respect to these 

matters. In fact, the case record contains a September 28, 2017 final EEOC decision, which 

discusses many of these administrative matters and finds that L.M. did not engage in any 

wrongdoing. The case record also contains an April 16, 2019 final EEOC decision, which affirmed

the findings of the September 28, 2017 decision. These decisions provide a great deal of detail 

from L.M’s affidavits (produced in conjunction with the EEOC proceedings and contained in the 

present case record) in which she provided reasoning for her handling of various administrative/

personnel matters. Appellant has not otherwise presented evidence, such as another final decision

of an administrative body, to show that L.M. or other managers committed error or abuse with 

respect to administrative or personnel matters.

17

 Although appellant expressed dissatisfaction with 

 

13 See Lillian Cutler, supra note 7.

14 T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 

41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).

15 M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

16 J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

17 See generally M.R., Docket No. 18-0304 (issued November 13, 2018). 
8

the actions of L.M., the Board has held that mere dislike or disagreement with certain supervisory 

actions will not be compensable absent error or abuse on the part of the supervisor.18 She has not 

substantiated error or abuse committed by L.M. or other managers in the above-noted matters and, 

therefore, she has not established a compensable employment factor with respect to administrative 

or personnel matters.

Appellant also alleged harassment and discrimination by L.M. and claimed that she created 

a stressful hostile work environment. She asserted that L.M. treated her differently on purpose 

due to her race and retaliated against her for filing an EEOC complaint in 2016. Appellant also

asserted that L.M. made comments and engaged in actions that rose to the level of harassment and 

discrimination. For example, she alleged that L.M. called her stupid with respect to her production 

of a PDF document, effectively threatened her job security by asking her whether she intended to 

quit, and told her that a given work assignment was none of her business. To the extent that 

disputes and incidents alleged as constituting harassment are established as occurring and arising 

from an employee’s performance of his or her regular duties, these could constitute employment 

factors.19 The Board has held that unfounded perceptions of harassment do not constitute an 

employment factor.20 Mere perceptions are not compensable under FECA and harassment can 

constitute a factor of employment if it is shown that the incidents constituting the claimed 

harassment actually occurred.21 

The Board notes that many of appellant’s claimed instances of harassment/discrimination 

were extensively discussed in the aforementioned September 28, 2017 and April 16, 2019 final 

EEOC decisions. It had been determined in these decisions that L.M. did not subject appellant to 

discriminatory, retaliatory, or otherwise improper actions, and that L.M. did not create a hostile 

work environment. For example, it was determined that there was insufficient evidence to 

establish appellant’s allegations that L.M. called her stupid or told her that a given work 

assignment was none of her business. Moreover, there was insufficient evidence to show that L.M. 

threatened appellant’s job when she asked appellant if she intended to quit her job. Rather, she

explained that she asked the question due to concern for appellant’s welfare and had, in fact, 

responded, “Good,” when appellant indicated that she did not wish to quit. Similarly, L.M. 

acknowledged that she told appellant that she had to be careful about what she stated to other 

people and that she had to choose her words carefully, but she explained that she intended to 

provide appellant with benevolent advice rather than to punish her. Appellant has not submitted 

sufficient documentary evidence to show that L.M. subjected her to harassment or 

discrimination.22 As noted, she submitted final EEOC decisions, but these decisions do not support 

her claims of wrongdoing by L.M. or other managers. Although it has been established that L.M. 

made certain comments described above, appellant has not established that these isolated 

 

18 T.C., Docket No. 16-0755 (issued December 13, 2016).

19 D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

20 See F.K., Docket No. 17-0179 (issued July 11, 2017). 

21 See id.

22 See B.S., Docket No. 19-0378 (issued July 10, 2018).
9

comments rose to the level of harassment or discrimination.23 Appellant also has not submitted 

sufficient evidence to establish her harassment/discrimination claims that were not discussed in 

the final EEOC decisions, such as her claim that L.M. threw a stapler at her. Therefore, she has 

not established a compensable employment factor with respect to the claimed harassment and 

discrimination.

On appeal, appellant, argues that her emotional condition claim should have been accepted 

because she established compensable employment factors and the evidence of record establishes 

that she is disabled. However, the Board has explained that she has not established a compensable 

employment factor. As the Board finds that appellant has not established a compensable 

employment factor, it is not necessary to consider the medical evidence of record.24 

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 that she 

sustained an emotional condition in the performance of duty, as alleged.

 

23 See generally C.T., Docket No. 08-2160 (issued May 7, 2009) (finding that some statements may be considered 

abusive and constitute a compensable factor of employment, but that not every statement uttered in the workplace will 

be covered by FECA). The Board notes that L.M. indicated that she might have stated in appellant’s presence that it 

would be stupid to put a draft into PDF. However, it has not been established that such a comment was actually made 

or that it would rise to the level of harassment or discrimination even if it had been made.

24 See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical 

evidence of record if a claimant has not established any compensable employment factors). See also Margaret S. 

Krzycki, 43 ECAB 496, 502-03 (1992).
10

ORDER

IT IS HEREBY ORDERED THAT the April 1, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board