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. 21-0975

Issued: March 10, 2022

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 11, 2021 appellant filed a timely appeal from a June 4, 2021 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 stress-related 

conditions in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

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

disease claim (Form CA-2) alleging that she sustained a series o f conditions due to workrelated 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 over time, 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 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. She also submitted time and attendance summary reports from July and 

September 2018.

In a June 25, 2019 development letter, OWCP notified appellant of the deficiencies of her 

claim. It advised her of the type of factual and medical evidence needed and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary 

evidence. In response, appellant asserted that L.M. treated her differently on purpose due to her

race and that the harassment was continuous. She claimed 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 

the complaint, 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, 2015L.M. accused her of “gamingthe system” when

she tried to change herschedule and that on February 15, 2016 she wrongly did notreceive 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.

2 Docket No. 20-1271 (issued March 9, 2021).
3

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

of a September 28, 2017 final 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 notsubject 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 herschedule and that it appropriately handled mattersrelating to sick leave,

holiday pay, and compensatory time. 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 commented that

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

told appellant thatshe 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. She noted it was

established that on September 8, 2016 L.M, told appellant thatshe should be careful about what

she said to people. In addition, it was established thatL.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 consideringL.M.’s comments and actionsin context, it had notbeen

shown that L.M. subjected appellant to discrimination or created a retaliatory or hostile work 

environment.3

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

emotional condition. Itdetermined thatshe had not established a compensable employmentfactor.

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

L.M. threw a stapler at her on October 20, 2014. 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.

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. 

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 thatsuch

documents are normally sent outin MicrosoftWord format. She noted thatshe 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 appellantstupid

but might have stated that it would be stupid to send the draftin the wrong format. With regard to

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

3 Appellant also submitted additionalmedical evidence in support of her claim.
4

change her work schedule, L.M. explained thatshe 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 claimed that she treated appellant fairly with respect to leave matters. 

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

appellant contested L.M.’s assertions with respect to schedule changes. 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 contestedL.M.’s assertionsthatshe hadproperly handled mattersrelating

to leave usage and work assignments.

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

on September 8 and 15, 2016 and denied that she acted improperly. She noted that during the

September 15, 2016 meeting she advised appellant thatshe needed to be careful about what she

stated to people and consider their points of view. L.M. indicated thatthis commentwasmade

in the context of the other paralegal havingfeltthat appellant made various accusationsagainst 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

noted that she later apologized to appellant and told appellant that she was trying to speak

openly and plainly. L.M. indicated thatshe did not recall telling appellant that a certain work 

assignment was none of her business.

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 thatshe called appellant stupid on March 30, 2016 after 

appellantimproperly sent out a draftin PDF, butthat L.M. had indicated thatshe 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 appellantthatshe was gaming the system, and thatshe should be careful aboutwhatshe 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.
5

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

2019 decision. Appellant appealed to the Board and, by decision dated March 9, 2021,4the Board 

affirmed the April 1, 2020 decision. 

On March 9, 2021 appellant requested reconsideration of the denial of her emotional 

condition claim. In support of her reconsideration request, she submitted two e-mails from the 

Office of Personnel Management (OPM), a February 16, 2021 e-mail advising her that a disability 

earnings survey had opened and a February 28, 2021 e-mail informing her that it had received her 

response to an OPM disability eligibility survey. Appellant also submitted a March 11, 2020 

notification of personnel action (Standard Form (SF) 50) memorializing her retirement from the 

employing establishment on disability retirement. In an accompanying statement, she argued that 

the fact that she retired on disability proved that managers committed wrongdoing and that she 

was subjected to a hostile work environment.

By decision dated June 4, 2021, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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.6 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. 7

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 

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

the diagnosed 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. 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 

4

Supra note 2.

5

Supra note 1.

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

7

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

See S.K., Docket No. 18-1648 (issued March14, 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).
6

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.9 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.10

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.11 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.12

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.13 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.14

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.

The Board preliminarily notes that it is unnecessary to consider the evidence appellant 

submitted prior to the issuance of OWCP’s April 1, 2020 decision, which was considered by the 

Board in its March 9, 2021 decision. Findings made in prior Board decisions are res judicata

absent further merit review by OWCP under section 8128 of FECA.15

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

conditions at her place of work. Therefore, the Board must initially review whether these alleged

9 Lillian Cutler, 28 ECAB 125 (1976).

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

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

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

13 See O.G., Docket No. 18-0359 (issued August7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14 Id.

15 C.M.,Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
7

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.

16

 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.17 However, theBoard 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 willbe afforded.18 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. 19

TheBoard findsthat appellant has notsubmitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted two e-mails from 

OPM, a February 16, 2021 e-mail advising her that a disability earnings survey had opened, and a 

February 28, 2021 e-mail informing her that it had received her response to an OPM disability 

eligibility survey. She also submitted a March 11, 2020 SF 50 memorializing her disability 

retirement from the employing establishment on disability retirement. Appellant argued that the 

fact that she retired on disability retirement proved that managers committed wrongdoing. 

However, this evidence would not in any way show that management committed error or abuse 

with respect to administrative or personnel matters. Appellant has not otherwise presented

evidence, such as a 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.20 In addition, the 

mere fact that appellant retired on disability retirement would not support her claims regarding 

administrative/personnel matters. Although appellant expresseddissatisfaction with 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. 21 Therefore, she has not

established a compensable employment factor with respectto administrative or personnel matters.

Appellant also alleged harassment and discriminationby L.M. and claimed thatshe created 

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

16 See supra note 9.

17 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).

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

19 J.W., Docket No. 17-0999 (issued September 4, 2018); RuthS. Johnson, 46 ECAB237(1994).

20 See generally M.R.,DocketNo. 18-0304 (issued November 13, 2018).

21 T.C., Docket No. 16-0755 (issued December 13, 2016).
8

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

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

discrimination. 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.22 The Board has held that unfounded perceptions of

harassment do not constitute an employment factor.23 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.24

As noted above, appellant submitted February 16 and 28, 2021 e-mails from OPM and 

a March 11, 2020 SF 50. She argued that the fact that she retired on disability retirement proved 

that she was subjected to a hostile work environment. However, these documents do not 

support appellant’s claims of harassment and discrimination and the mere f act that she

retired on disability retirement also would not support her claims of harassment/

discrimination. Appellant has not submitted sufficient documentary evidence to show that

L.M. subjected her to harassment or discrimination.25 Therefore, she has not established a

compensable employment factor with respect to the claimed harassment and discrimination. As 

the Board finds that appellant has not established a compensable employment factor, it is not 

necessary to consider the medical evidence of record.26

Appellantmay submit new evidence or argumentwith a written requestforreconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

condition in the performance of duty, as alleged.

22 D.B., Docket No. 18-1025 (issued January 23, 2019); DavidW. Shirey, 42 ECAB783, 795-96(1991).

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

24 See id.

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

26 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).
9

ORDER

IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 10, 2022

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