United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.F., Appellant

and

U.S. POSTAL SERVICE, MURRELLS INLET 

POST OFFICE, Murrells Inlet, SC, Employer

__________________________________________

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Docket No. 20-1118

Issued: September 2, 2022

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 8, 2020 appellant, through counsel, filed a timely appeal from an April 9, 2020 

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, following the April9, 2020 decision, appellant submitted additional evidence to OWCP.

However, 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 that she sustained 

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

FACTUAL HISTORY

On August 28, 2017 appellant, then a 47-year-old customer service supervisor, filed an 

occupational disease claim (Form CA-2) alleging that she sustained panic attacks, stress, and 

aggravation of preexisting fibromyalgia due to factors of her federal employment including being 

harassed and threatened by S.H., a custodian at her workplace. She claimed that S.H.’s harassment 

commenced in February 2017 and that he killed her dog with poison in July 2017. Appellant 

claimed that on August 17, 2017 S.H. directly threatened her safety in the presence of A.G., the 

postmaster who served as her supervisor. She asserted that she first became aware of her claimed 

injury on August 17, 2017 and first realized its relation to her federal employment on 

August 22, 2017. Appellant stopped work on August 28, 2017.

In an accompanying statement, appellant asserted that, in early-February, S.H. called 

another custodian “a thief” for taking extended breaks and hiding from management to avoid work, 

and S.H. became offended and hostile when she responded that his talking to people all day instead 

of working brought about the same result and was like the pot calling the kettle black. Appellant 

indicated that, at that time, she and S.H. “were enemies” and “were now at war.” She asserted that 

S.H. openly declared that he was crazy and possessed a letter that proved it and allowed him to 

“do anything he wants.” Appellant claimed that S.H. had post-traumatic stress disorder (PTSD) 

from his service in the Marines 30 years prior and made statements on the workplace floor such as 

“killing is therapeutic for me.” According to his own reports, S.H. considered himself to be a selfappointed vigilante, patrolled his neighborhood fully armed, and pulled his gun on those who 

approached houses where he suspected illegal drugs were sold. Appellant claimed that when she 

approached S.H. on March 4, 2017 to arrange a meeting with management, S.H. made false 

accusations against her and threatened to have her fired, arrested, and thrown in jail. 

Approximately one week later, two management officials advised her about an investigation into 

five claims S.H. made against her, only one of which directly involved the relationship between 

her and S.H. Appellant alleged that on March 4, 2017 S.H. told her to “have fun in jail” and she 

acknowledged that it was inappropriate for her to respond to S.H.’s comment by making a profane 

comment to him, a comment for which she received a letter of warning on March 30, 2017. She 

asserted that S.H. continued to spread unfounded rumors and lies throughout the office regarding 

her “personal professional integrity” without wrongdoing being found. Appellant advised that 

S.H. filed an Equal Employment Opportunity (EEO) claim in which he made five new charges 

that she persecuted him on the basis of age, gender, and medical condition. She asserted that 

several of the charges were proven to be outright lies and that management officials, including 

A.G., J.A., and A.C., ignored her right to have S.H. investigated for harassing her. Appellant 

advised that, in July 2017, her family’s pet Labrador retriever had to be put down after suffering 

acute liver failure due to toxic ingestion. While acknowledging that she did not have proof, she 

filed a police report indicating she was certain that S.H. poisoned and killed her dog.

Appellant further claimed that, in August 2017, S.H. filed four more charges against her

and she claimed that a management official advised her that S.H., as a disabled veteran, was 
3

“virtually untouchable,” and that all Vietnam veterans were “really crazy and violent.” She

asserted that, in connection with these charges, S.H. asked coworkers to produce negative 

statements about her, and that S.H. continued this activity even after A.G. stated that it was creating 

a hostile work environment and an “us [versus] them mentality” against management. Appellant

advised that S.H. then filed a baselessEEO claim alleging she sexually harassed him. She asserted 

that, during an interview regarding this claim on August 17, 2017, A.G. asked S.H. if he had 

anything he wanted to add and S.H. responded that “he was afraid that he would wake up in a 

[Department of Veterans Affairs] hospital and they would be telling him that he had done horrible 

things.” Appellant advised that she learned of S.H.’s comments during an interview with A.G. 

and she became very upset and concerned for the safety of herself and her family.

In an October 23, 2017 development letter, OWCP notified appellant of the deficiencies of 

her claim. It advised her of the type of evidence needed and provided a questionnaire for her 

completion. In a separate development letter of even date, OWCP requested that the employing 

establishment provide comments from a knowledgeable supervisor regarding appellant’s 

allegations. It afforded both parties 30 days to respond.

In a November 22, 2017 statement, received by OWCP on that date, appellant responded

to the questionnaire provided to her on October 23, 2017. She repeated a number of her earlier 

claims regarding S.H.’s actions and argued that the employing establishment violated procedural 

rules by not fully responding to her requests to investigate S.H. Appellant noted, “I am currently 

suffering from stress and anxiety caused by the [the employing establishment’s] ignoring my 

repeated assertions that I am being required to perform as the direct supervisor of an emotionally 

disturbed employee, in a hostile work environment, in which I am increasingly afraid for my 

personal safety, and the safety of my family.”

Appellant also submitted an undated six-page statement, received by OWCP on 

November 22, 2017, in which she repeated a number of her earlier claims regarding S.H.’s actions. 

She alleged that, on March 4, 2017, S.H., falsely accused her of falsifying documents regarding 

accountable mail items, and she generally indicated that appellant made numerous derogatory 

statements about various ethnic groups. Appellant submitted several letters and e-mails, dated 

between April and July 2017, in which she requested that the employing establishment investigate 

S.H. These documents contain descriptions of S.H.’s claimed actions, which are similar to those 

contained in other documents of record.

In a November 21, 2017 letter, C.J., a manager of health and resource management for the 

employing establishment, provided the employing establishment’s response to OWCP’s 

October 23, 2017 request for information. He indicated that the employing establishment 

investigated the events of March 4, 2017 and that, as a result, both appellant and S.H. were 

disciplined. C.J. noted that another investigation was concluded on August 17, 2017 in response 

to an e-mail from an employee claiming a hostile work environment and resulted in a 

recommendation that appellant attend employee engagement training. He advised that a third 

investigation was conducted in response to a postmaster sending home an employee who made a 

statement “understood as threatening.” C.J. indicated, “The investigation inquiry led to no action 

taken against employee other than a few days of missed work and no threat perceived by employees 

in office, with the exception of [appellant].”
4

C.J. attached a March 14, 2017 document regarding the investigation into the events of 

March 4, 2017, which was signed by two postmasters for the employing establishment. The 

postmasters indicated that the investigation established that appellant made a profane comment to 

S.H. on March 4, 2017. They noted that other allegations made against appellant by an unnamed 

complainant, including a claim of committing health insurance fraud, had not been substantiated 

by the investigation.

Both appellant and the employing establishment submitted additional documents to 

OWCP. In a March 9, 2017 statement produced in conjunction with an employing establishment 

investigation, S.H. acknowledged that on March 4, 2017 he accused appellant of falsifying route 

delivery documents, and committing health insurance fraud. He indicated that appellant responded 

to his accusations by making a profane comment to him.

In an August 15, 2017 e-mail, K.W., a subordinate of appellant, criticized appellant’s 

performance as her supervisor. She asserted that appellant failed to adequately address the use of 

profanity in the workplace and, on one occasion, used stereotypical language to describe workmen 

who made repairs at the workplace. K.W. noted that, during a meeting with her subordinates, 

appellant admitted that she had used profanity in the workplace on occasion.

In an August 17, 2017 memorandum, D.M., a labor relations specialist for the employing 

establishment, indicated that concerns had been raised regarding appellant’s performance as a 

supervisor. D.M. indicated that C.H., a subordinate of appellant, had indicated that S.H. “seems 

to have it out for [appellant].”

In an undated statement, E.H., a labor relations specialist for the employing establishment,

discussed an August 29, 2017 meeting attended by himself, appellant, S.H., and E.A., a

management official. E.H. advised that, during this meeting, S.H. indicated that A.G. had asked 

him at the end of an August 17, 2017 interview whether he had anything to add and S.H. noted 

that he said that “he was afraid he would wake up in a [Department of Veterans Affairs] hospital 

and they would be telling him horrible things.” S.H. then indicated that A.G. misunderstood his 

comment and wrongly thought that he had said that “he was afraid he would wake up in a 

[Department of Veterans Affairs] hospital and they would be telling him that he had done horrible 

things.” E.H. noted that S.H. claimed that he told appellant to “have fun in jail.” E.H. indicated 

that he was present at a management interview with C.H. on August 30, 2017 at which time C.H. 

expressed her belief that S.H. disrespected appellant. E.H. noted that he also was present at the 

management interview with A.G. on August 30, 2017 at which time A.G. indicated that he issued 

letters of warning to both appellant and S.H. regarding their exchange of comments on 

March 4, 2017.4 At this meeting, A.G. indicated that S.H. said that he “would hate to wake up in 

[a Department of Veterans Affairs hospital] being told that he ... did some horrible things.” A.G. 

then noted that he instructed S.H. to go home “because he felt like what he said was a threat to 

someone’s safety.”

4 E.H. noted that A.G. stated that it had been established during the investigation into the events of March 4, 2017 

that appellant responded to S.H.’s statements with a profane comment. A.G. indicated that he did not personally 

witness the exchange.
5

In a November 29, 2017 e-mail, C.J. advised that an investigation did not find credible 

evidence that S.H. threatened appellant in August 2017. In a November 29, 2017 e-mail, A.G. 

responded to C.J. and indicated that he had “reason to doubt the extent” of appellant’s claim. He 

advised that there was no “credible threat” made by S.H. against appellant. In an undated 

statement, R.A., a coworker of appellant, indicated that he witnessed appellant making a profane 

comment to S.H. on March 4, 2017.

Appellant also submitted medical evidence, as well as copies of leave requests and 

reasonable accommodation requests.

By decision dated January 25, 2018, OWCP denied appellant’s emotional condition claim, 

finding that she failed to establish any compensable employment factors. In particular, it found 

that appellant had not established that the various interactions she described as having with S.H. 

constituted employment factors.

On February 1, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. Following a preliminary review, by 

decision dated a June 1, 2018, OWCP’s hearing representative set aside the January 25, 2018 

decision and remanded the case to OWCP for further development of the factual evidence. She

indicated that, on remand, OWCP should provide the employing establishment with a copy of 

appellant’s November 22, 2017 statement and her undated six-page statement. The hearing 

representative further directed OWCP to obtain comments from knowledgeable employing 

establishment officials regarding the claims appellant made in these documents.

On remand, OWCP provided appellant’s statements to the employing establishment and 

requested that knowledgeable management officials comment on appellant’s allegations.5 In a 

July 20, 2018 statement, C.J. indicated that during the interview A.G. conducted on August 17, 

2017, S.H. indicated, “I’m afraid of waking up in the [Department of Veterans Affairs] Hospital 

[and] them telling me horrible things.” He noted that, the next day, appellant claimed that S.H. 

made a threatening statement and A.G. sent S.H. home on the same day. C.J. indicated that on 

August 21, 2017 management reached a consensus that S.H. was wrongly sent home as it had not 

been established that he made a threat, and S.H. returned to work the next day. He maintained that 

the employing establishment fully addressed appellant’s concerns regarding the matter. C.J.

acknowledged that supervisors and subordinates can have “personality conflicts” but asserted that 

“personal conflicts” are not compensable work factors.

In a January 19, 2018 EEO decision, the employing establishment dismissed appellant’s 

complaint against it for discrimination based on sex and retaliation. In a May 23, 2018 EEO 

Commission decision, it was determined that appellant filed a viable sex discrimination complaint

that required further investigation/processing and should not have been dismissed by the 

employing establishment. The claim was remanded to the employing establishment for continued 

processing.

5 OWCP also provided copies of other documents of record, including a more legible copy of S.H.’s March9, 2017 

statement.
6

By decision dated October 2, 2018, OWCP denied appellant’s emotional condition claim, 

finding that she failed to establish any compensable employment factors. It concluded, therefore, 

that the requirements had not been met to establish an injury as defined by FECA.

On October 10, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on March 20, 2019.

Appellant submitted an undated 14-page statement, received by OWCP on April 18, 2019,

in which she provided claims regarding S.H.’s behavior that were similar to those provided in prior 

statements. She claimed that in early-2018 the employing establishment wrongly dismissed her 

complaint against management. Appellant also submitted statements from management officials,

which praised her work performance, as well as additional medical evidence in support of her 

claim.

In a March 15, 2019 statement, C.H. indicated that S.H. had made announcements that 

“killing was therapeutic for him and otherwise he didn’t know what would happen.” She advised 

that, when S.H. was “having issues” with appellant, she feared for appellant’s and her own safety 

because she was friends with appellant. C.H. indicated, “[h]is attitude towards [appellant] was 

hateful, violent and disrespectful of her position.”

By decision dated June 10, 2019, OWCP’s hearing representative set aside the October 2, 

2018 decision and remanded the case to OWCP for further development of the factual evidence. 

The hearing representative indicated that, on remand, OWCP should address appellant’s 14-page 

statement and address whether the May 23, 2018 EEOC decision establishes an employment 

factor.

On remand OWCP solicited additional statements from the employing establishment. In a 

July 23, 2019 statement, C.J. maintained that appellant misquoted S.H.’s August 17, 2017 

statement that he was “afraid of waking up in the [Department of Veterans Affairs hospital] and 

them telling me horrible things” when she asserted that S.H. declared that he was “afraid [he] was 

going to wake up in the [Department of Veterans Affairs hospital] and be told he had done 

something terrible.” He advised that management concluded that S.H. did not make a viable threat.

On August 26, 2019 OWCP received an undated statement in which appellant asserted that 

C.H.’s March 15, 2019 statement supported her claims about S.H. Appellant asserted that 

management did not adequately conduct investigations into her claims, noting that S.H. refused to 

meet with investigators regarding the third investigation regarding the events of August 2017. She 

indicated that she agreed that S.H. had declared, “I don’t want to wake up in a [Department of 

Veterans Affairs] hospital with them telling me horrible things.” Appellant advised that she still 

considered this to be a threatening statement and indicated that three management officials 

considered the statement to be enough of a threat to send S.H. home from work.

In an August 29, 2019 statement, C.H. indicated that S.H. had repeatedly and openly made 

statements on the workroom floor that were violent and inappropriate, including that killing was 

therapeutic for him, that he was crazy and had a license to do whatever he wanted, that he had 

PTSD and was very unstable and dangerous, and that people should not “poke the bear.” She also 

asserted that S.H. made statements in the workplace about his hatred for certain ethnic groups, 
7

constantly talked about his personal gun arsenal, and bragged about his armed stakeouts in his 

neighborhood to look for any wrongdoing. C.H. indicated that appellant wore a t-shirt in the 

workplace that, in effect, said, “I’m stressed and therefore I have to go kill something.” She 

asserted that A.G. knew that S.H. was capable of being dangerous.

By decision dated September 23, 2019, OWCP denied appellant’s emotional condition 

claim, finding that she failed to establish any compensable employment factors.

On October 18, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on February 5, 2020.

Appellant subsequently submitted additional documents. In a January 29, 2020 statement, 

she provided further details regarding her claimed employment factors and the medical treatment 

she received.

In a March 10, 2020 statement, C.J. referenced counsel’s hearing testimony and asserted 

that it was appellant who contributed to a hostile work environment through her actions in the 

workplace. He indicated that appellant did not appear to have been intimidated by S.H. as she, on 

at least one occasion, directedprofane language towards him and, on another occasion, approached 

him in a tractor shed containing tools. C.J. asserted that, at some point, appellant’s personal 

relationship with S.H. soured. In an April 1, 2020 statement, appellant challenged C.J.’s 

description of her actions. She asserted that she never had a personal relationship with S.H., but 

had worked with him for five years.

By decision dated April 9, 2020, OWCP’s hearing representative affirmed the 

September 23, 2019 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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.7 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. 8

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 

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

6

5 U.S.C. § 8101 et seq.

 

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

8

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April10, 2019); see T.O.,Docket No. 18-1012 (issued 

October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
8

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

the diagnosed emotional condition.9

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. 10 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.11

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.12 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.13

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.14 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.15

ANALYSIS

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

9

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).

 

10 Lillian Cutler, 28 ECAB 125 (1976).

 

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

 

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

 

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

 

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

 

15 Id.
9

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

employment incidents and work conditions. OWCP denied her emotional condition claim finding 

that she had not established a compensable employment factor. The Board must, therefore, 

initially review whether these alleged incidents are covered employment factors under the terms 

of FECA.16 Appellant claimed that management committed error and abuse with respect to 

administrative/personnel matters and that she was subjected to harassment and discrimination. In 

addition, elements of appellant’s claims of harassment and discrimination could also be 

characterized as alleged employment factors under the principles of Lillian Cutler,

17 in that they 

stemmed from her supervisory relationship with S.H.

With respect to administrative or personnel matters, appellant claimed that management 

officials did not adequately support her in connection with her dealings with her subordinate, S.H. 

Appellant asserted that S.H. filed an EEO claim in which he made five charges that she persecuted 

him on the basis of age, gender, and medical condition. She claimed that several of the charges 

were proven to be outright lies and that management officials, including A.G., her immediate 

supervisor, ignored her right to have S.H. investigated for harassing her. Appellant further claimed 

that, in August 2017, S.H. filed four more charges against her and she alleged that a management 

official advised her that S.H., as a disabled veteran, was “virtually untouchable” and that all 

Vietnam veterans were “really crazy and violent.” She claimed that in early-2018 the employing 

establishment improperly dismissed her complaint regarding wrongdoing by management.

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.18 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.19 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.20

The Board finds that appellant has submitted sufficient evidence to establish a compensable 

employment factor with respect to her claim that in early-2018 the employing establishment 

improperly dismissed her complaint regarding wrongdoing by management. In a January 19, 2018

EEO decision, appellant’s complaint against the employing establishment for discrimination based 

on sex and retaliation was dismissed. However, in a May 23, 2018 EEOC decision, it was 

determined that appellant filed a viable sex discrimination complaint that required further 

investigation/processing and should not have been dismissed by the employing establishment. The 

16 Y.W., Docket No. 19-1877 (issued April30, 2020); Dennis J. Balogh, 52 ECAB 232 (2001).

 

17 See supra note 10.

 

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

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

 

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

 

20 J.W.,Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).
10

claim was remanded to the employing establishment for continued processing. The Board finds 

that this evidence supports a finding of error/abuse by the employing establishment with respect 

to this administrative/personnel matter.

With respect to the other above-mentioned claims regarding administrative/personnel 

matters, the Board finds that appellant has not submitted sufficient evidence to establish a 

compensable employment factor. Appellant submitted e-mails and memoranda, which concerned 

some of these administrative/personnel matters, but the communications did not show that the 

employing establishment committed error or abuse with respect to these matters. There is no 

indication that appellant obtained a final determination from an administrative body showing that 

the employing establishment committed error or abuse with respect to such matters. Appellant has 

not substantiated error or abuse committed by the employing establishment in the above -noted 

additional matters and, therefore, she has not established a compensable employment factor with 

respect to administrative or personnel matters, other than the above-noted dismissal of her 

complaint in early-2018. 

Appellant also alleged that S.H. subjected her to harassment and discrimination. She 

asserted that S.H. called another custodian “a thief” for taking extended breaks and hiding from 

management to avoid work, and that S.H. became offended and hostile when she responded that 

his talking to people all day instead of working brought about the same result and was like the pot 

calling the kettle black. Appellant alleged that S.H. openly declared that he was crazy and 

possessed a letter, which proved it and allowed him to “do anything he wants.” She claimed that 

S.H. made violent statements on the workplace floor such as “killing is therapeutic for me” and 

made offensive comments about various ethnic groups. S.H. also spoke about patrolling his 

neighborhood fully armed, and pulling his gun on those who approached houses where he 

suspected illegal drugs were sold. Appellant claimed that when she approached S.H. on March 4, 

2017 to arrange a meeting with management, S.H. made false accusations against her and 

threatened to have her fired, arrested, and thrown in jail. She alleged that on March 4, 2017 S.H. 

told her to “have fun in jail” for committing health insurance fraud. Appellant asserted that S.H. 

continued to spread unfounded rumors and lies throughout the office regarding her “personal 

professional integrity” without wrongdoing being found. She asserted that S.H. specifically asked 

coworkers to produce negative statements about her. Appellant advised that, in July 2017, her 

family’s pet Labrador retriever had to be put down after suffering acute liver failure due to toxic 

ingestion and she claimed that S.H. was responsible for poisoning the dog. She asserted that during 

an interview held on August 17, 2017, A.G. asked S.H. if he had anything he wanted to add and 

S.H. responded that “he was afraid that he would wake up in a [Department of Veterans Affairs] 

hospital and they would be telling him that he had done horrible things.” Appellant advised that 

she learned of S.H.’s comments during an interview with A.G. and she became very upset and 

concerned for the safety of herself and her family.

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.21 The Board has held that unfounded perceptions of harassment 

 

21 D.B., Docket No. 18-1025 (issued January 23, 2019); DavidW. Shirey, 42 ECAB 783, 795-96 (1991).
11

do not constitute an employment factor.22 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.23

The Board finds that appellant has established harassment/discrimination with respect to 

S.H.’s actions/statements on March 4, 2017. Evidence in the case record reveals that S.H. has 

acknowledged that on March 4, 2017 he confronted appellant on the work floor and accused her

of falsifying route delivery documents, and committing health insurance fraud. An employing

establishment official noted that S.H. acknowledged telling appellant to “have fun in jail” and the 

case record reflects that S.H. received a letter of warning regarding his actions on March 4, 2017. 

The Board further notes that the events of March 4, 2017 constitute an employment factor for the 

additional reason that they could also be characterized as relating to appellant’s carrying out of her 

supervisory duties.

24

Appellant did not submit adequate witness statements or other documentary evidence to 

demonstrate that the additional alleged instances of harassment and discrimination occurred as 

alleged.25 Although the case record contains statements in which employees indicated that S.H. 

made offensive comments, including those regarding the commission of violence and the 

denigration of various groups, the statements are vague in nature and provide no indication that 

appellant’s comments were made in appellant’s presence. The Board has found that vague and 

nonspecific statements of record are insufficient to establish a compensable employment factor.

26

 

With respect to S.H.’s alleged comment on August 17, 2017 regarding his fears about waking up 

in a Department of Veterans Affairs hospital, the Board notes that the case record contains 

conflicting statements about the precise nature of the comment. In addition, there has been no 

claim that the ostensible comment was made in appellant’s presence. Moreover, the employing 

establishment conducted an investigation and found that the comment did not pose a credible threat 

to appellant or others. Appellant did not submit the final findings of any complaint or grievance 

she might have filed with respect to her additional claims of harassment/discrimination. Therefore, 

appellant has not established a compensable employment factor with respect to the claimed 

instances of harassment and discrimination, other than S.H.’s actions/statements on 

March 4, 2017.

In the present case, appellant has established compensable employment factors with respect 

to the dismissal of her complaint in early-2018 and S.H.’s actions/statements on March 4, 2017. 

However, appellant’s burden of proof is not discharged by the fact that she has established 

employment factors, which may give rise to a compensable disability under FECA. To establish her

occupational disease claim for an emotional condition, appellant must also submit rationalized 

 

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

23 See id.

 

24 See Lillian Cutler, supra note 10.

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

26 See T.G., Docket No. 19-1668 (issued December 7, 2020).
12

medical evidence establishing that she has an emotional or psychiatric disorder, and that such 

disorder is causally related to an accepted compensable employment factor.27

As OWCP found there were no compensable employment factors, the case must be remanded 

for an evaluation of the medical evidence with regard to the issue of causal relationship.28 Following 

this and other such further development as deemed necessary, OWCP shall issue a de novo

regarding appellant’s emotional condition claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 9, 2020 decision of the Office of Workers’

Compensation Programs is set aside and case is remanded to OWCP for proceedings consistent 

with this decision of the Board.

Issued: September 2, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

27 See supra note 9.

 

28 See M.D., Docket No. 15-1796 (issued September 7, 2016).