United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Chantilly, VA, Employer

__________________________________________

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Docket No. 22-0472

Issued: October 16, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

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 February 10, 2022 appellant filed a timely appeal from a February 9, 2022 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 to consider the merits of this case. 

ISSUE

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

condition 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 as set forth 

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

On December 17, 2017 appellant, then a 47-year-old federal air marshal (FAM), filed an 

occupational disease claim (Form CA-2) alleging that, on October 6, 2017, the employing 

establishment involuntarily placed him on sick leave for 280 hours, and directed him to seek a 

psychiatric examination which revealed that he had an adjustment disorder caused by occupational 

stressors. He noted that he first became aware of his condition and its relationship to his federal 

employment on November 22, 2017. On the reverse side of the claim form, the employing 

establishment noted that appellant was last exposed to the conditions alleged to have caused his 

condition on October 7, 2017, and he returned to work on December 1, 2017.3

In a development letter dated December 27, 2017, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to 

establish his claim, and attached a questionnaire for his completion. In a separate development 

letter of even date, OWCP requested that the employing establishment provide additional 

information, including comments from a knowledgeable supervisor, and an explanation of 

appellant’s work activities. It afforded both parties 30 days to submit the necessary evidence.

The employing establishment did not respond to OWCP’s December 27, 2017 request for 

information.

In a January 7, 2018 letter, appellant responded to OWCP’s development letter. He 

contended that the employing establishment retaliated against him by failing to submit 

documentation and medical evidence supporting his claim. Appellant further contended that on

October 6, 2017 the employing establishment ordered him not to enter its facilities, and forced him 

to exhaust 280 hours of his sick leave until he was able to seek and personally pay a nonagency 

psychiatrist to examine his mental health. He asserted that the employing establishment also 

revoked his agency-issued firearm in public by sending two uniformed FAMs who wore body 

armor labeled “POLICE” and exposed firearms in exterior holsters in black Suburban vehicles 

equipped with red and blue emergency lights to a grocery store parking lot in his town. Appellant

further asserted that the employing establishment immediately placed him back on full duties after 

it received a medical report by Dr. Kiran Iqbal, a Board-certified psychiatrist, who concluded that 

its directive was retaliatory. Additionally, he asserted that a current FAM told him that years ago 

the employing establishment had directed her onto paid leave and to undergo a paid psychiatric 

examination as a result of “four-hand gossip.” She believed that the employing establishment was 

retaliating against him. Appellant had a 15-year ongoing whistleblower retaliation case against 

the employing establishment, and he prevailed against its appeal to the U.S. Merit Systems 

Protection Board (MSPB), U.S. Court of Appeals, and the U.S. Supreme Court. He noted that 

numerous mainstream media outlets had reported the Supreme Court’s affirmation of his case, and 

2 Docket No. 19-1520 (issued September 15, 2021).

3 On January 1, 2018 appellant filed a claim for compensation (Form CA-7) for disability from work from October 7 

to November 30, 2017.
3

his 2003 protected disclosures which had alarmed congressional leaders. Appellant contended that 

since the employing establishment was forced to retroactively reinstate him in 2015, it used several 

methods to psychologically manipulate him. He stated that the supervisor filed a complaint 

accusing him of being a homicidal “racist.” It was determined that the complaint was unfounded,

and the supervisor had committed perjury in an affidavit. Even though appellant had no firearms, 

medical, or top-secret clearance restrictions, the employing establishment failed to give him

substantive duties for six months. During four of those months, he sat in an empty and windowless 

room and behind a printer table with no partition, telephone, or drawers. Appellant noted that the 

employing establishment’s criminal investigators were currently probing appellant for his 2010 

disclosures regarding a FAM who was terminated, reinstated, and then again faced a second 

termination until she began having sexual relations with the married deciding official who had 

removed him from employment in 2006. He indicated that he was currently in his third involuntary 

redirected assignment after a supervisor complained that it was impossible for him to remain covert 

during flight missions. Appellant recounted that on May 24, 2016 a supervisor filed a complaint 

with an Equal Employment Opportunity Commission (EEOC) investigator indicating that his lack 

of substantive responsibilities was having a negative effect on him and other FAMs who observed 

him sitting around all day with nothing significant to do since he had been forced into an 

involuntary redirected assignment. One of appellant’s rating supervisors who attempted to shield 

him from retaliation was demoted to a flying FAM. Appellant noted that his lateral and 

promotional applications had been rejected despite the testimony of his deciding official that he 

had an unblemished record and was consistently an exemplary officer, and his well-documented 

performance record. He contended that his fellow officers avoided him for fear of association. A 

previous rating supervisor warned him that the employing establishment had hoped that he would 

explode. Appellant recently reported substantive dangers to Terminal A in Ronald Reagan 

National Airport and commercial passenger airline cockpits and their pilots during flight, which 

had been investigated by the U.S. Office of Special Counsel (OSC) since 2016. 

Appellant submitted a May 24, 2016 e-mail and a nondisciplinary letter of counseling that 

was issued to a supervisory FAM for failing to follow policy. The supervisor had sent an 

inappropriate video to appellant who showed it to two employees.

OWCP received an August 12, 2016 letter in which U.S. Congressional representatives 

requested that the administrator of the employing establishment provide documents and 

communications related to its retaliation against appellant for being a whistleblower and denial of 

his promotion. It was noted that the MSPB found that the employing establishment had retaliated 

against appellant when he was removed from employment in 2006 and required him to be 

retroactively restored, effective April 11, 2006. In June 2015, appellant was reinstated in his 

former position. He had not received an annual in-position-increase since 2002 despite his 

supervisor’s testimony that his performance was exemplary. Since February 26, 2016, appellant 

had been assigned to an empty room with no work duties while he was previously assigned to 

covert flying missions in the Middle East. 

E-mails dated April 21, June 14 and 24, 2016 discussed appellant’s reassignment on 

April 26, 2016, his lack of work duties, and the scheduling of training, and the denial of his 

April 13, 2016 request for reassignment following his completion of a detail assignment from 

February 26 to April 13, 2016. Additional e-mails either had illegible dates or were dated 

October 6 through December 7, 2017, and addressed appellant’s surrender of his firearm and other 
4

equipment on October 6, 2017, medical treatment and pay status, restoration of his sick leave, and 

request to be placed on administrative leave.

Appellant submitted a November 22, 2017 e-mail from Dr. Kathleen Christian, an 

employing establishment clinical psychologist, who had recently treated appellant. Dr. Christian 

announced her own retirement, noting that she was denied the ability to leverage her experience 

for the good of FAMs, and she had realized that she was part of a system that put their emotional 

well-being at risk. 

In a form report dated November 28, 2017, Dr. Iqbal, Board-certified in child and 

adolescent psychiatry, indicated that appellant had occupational stress with adjustment disorder 

and anxiety. She found that appellant was psychologically suitable to perform Federal Air Marshal 

Duties.

OWCP received additional medical evidence.

By decision dated June 13, 2018, OWCP denied appellant’s claim for an employmentrelated emotional condition, finding that he had not substantiated a compensable factor of 

employment. It concluded, therefore, that the requirements had not been met to establish an injury 

as defined by FECA.

Appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings 

and Review, which was held on November 28, 2018. During the hearing, he testified that the 

employing establishment retaliated against him, and in June 2018 it had issued a second proposed 

notice of termination. Appellant further testified that an investigation of his retaliation complaint 

had been launched and his disclosure that he initially filed in 2003 regarding problematic cockpit 

security issues. He noted that this investigation resulted in his July 2003 termination. Appellant 

also testified that the employing establishment retaliated against him for making protected 

disclosures as a whistleblower against a special counsel who was arrested in 2006 by the Federal 

Bureau of Investigations for transferring his lesbian, gay, bisexual, and transgender employees.

By decision dated February 12, 2019, an OWCP hearing representative affirmed the 

June 13, 2018 decision, finding that the evidence of record was insufficient to establish a 

compensable employment factor.

On March 13, 2019 appellant requested reconsideration. In support of the request, he 

submitted a December 18, 2018 letter in which the Office of Special Counsel (OSC) advised 

appellant that it had transmitted his allegations of gross mismanagement and a substantial and 

specific danger to public health and safety by employees at the employing establishment to the 

Secretary of the Department of Homeland Security for a report pursuant to 5 U.S.C. § 1213(c).

OWCP, by decision dated June 7, 2019, denied modification of the February 12, 2019 

decision. 
5

On July 9, 2019 appellant appealed to the Board. By decision dated September 15, 2021,4

the Board set aside the June 7, 2019 decision and remanded the case for further development, 

instructing OWCP to again request a detailed statement and relevant evidence and/or argument

from the employing establishment regarding appellant’s allegations.

Subsequently, OWCP received e-mails dated January 25, February 16, May 24, 

October 11, 2016, September 26, October 6, 9, 10, 11, 18, 19, 20, 25, 2017, April 25, 2018, a letter 

dated April 15, 2021, and memoranda dated March 13 and July 9, 2019 reiterating appellant’s 

prior allegations.

The October 6, 2017 e-mail from S.K. documented that appellant came to his office that 

morning to be issued a cease and desist order in reference to an open investigation. Appellant 

appeared visibly upset and stressed while signing paperwork, and appellant asked for sick leave 

that day, which was granted.

OWCP also received additional medical evidence.

In an October 28, 2021 development letter, OWCP again requested that the employing 

establishment provide comments from a knowledgeable supervisor regarding appellant’s 

allegations as instructed by the Board’s September 15, 2021 decision. In a separate development 

letter of even date, it requested that appellant clarify recent evidence submitted, and advised him 

of the type of medical evidence necessary to establish his emotional condition claim. OWCP 

afforded both parties 30 days to respond.

In response to OWCP’s development letter, appellant submitted a November 23, 2021 

letter. He contended that during an investigative interview by the employing establishment, S.M., 

a supervisory FAM, related his awareness of appellant’s emotional condition and need for a 

fitness-for-duty examination, but during his testimony before the MSPB on June 2, 2021 S.M. tried 

to conceal his observation of a panic attack experienced by appellant on October 4, 2017.

Appellant further alleged that the employing establishment retaliated against him due to his June 9, 

2015 nationally televised testimony before Congress regarding flight attendants being directed to 

use their bodies and drink-carts to guard routinely unlocked commercial passenger airliner 

cockpits. Following his testimony, he claimed that the employing establishment rejected his

numerous requests for ground-based assignments because he wished to avoid flying undercover

protection missions due to his national exposure. Appellant noted that he was directed to attempt 

to fly covertly from November 2015 to February 2016. On January 29, 2016 his first-line 

supervisor, T.S., warned him that terrorist organizations were trying to identify FAMs on the

internet to place them on “KILL-LISTS.” Appellant memorialized the warning and forwarded it 

to OSC who directed the employing establishment to place appellant on ground-based assignment 

as soon as possible. He contended that from February 29 through April 15, 2016 he was 

involuntarily assigned to the employing establishment’s Transportation Security Operations 

Center (TSOC) Freedom Center. R.T. was appellant’s supervisor at TSOC, and during an 

investigative interview she related that he had an emotional condition. On September 29, 2019 

M.H., appellant’s supervisor, told an MSPB judge that appellant was a huge threat to the 

employing establishment because he wanted to take it down. Appellant contended that his 

4

Supra note 2.
6

supervisor, J.M., reported to him that a lot of FAMs disliked him, and that J.M. affirmed this 

observation to employing establishment investigators.

Appellant also submitted exhibits A through I, consisting of communication between 

appellant and the employing establishment that discussed his request for a security and threat 

assessment due to being on a “KILL LIST,” a video incident, his reinstatement to employment 

following his 2006 removal from work and successful whistleblower retaliation case against the 

employing establishment, and medical treatment. 

In letters dated November 27 and December 21, 2021, appellant contended that he was 

fired on March 21, 2019 by C.P., a regional supervisory FAM-in-charge, despite an April 12, 2019 

settlement agreement between the employing establishment and the OSC to reinstate his 

employment as a FAM. He noted that he was fired for posting emojis, while off duty, on a 

Facebook secret group page using his personal computer. The employing establishment 

investigated the incident and determined that the emojis were sexual in nature, and, thus, 

inappropriate. Appellant contended that since his reinstatement in 2015, there were at least 32 

performance and misconduct allegations made against him by the employing establishment. He

submitted e-mails, including an e-mail dated April 12, 2019, which listed the terms of the 

reinstatement agreement between the employing establishment and OSC.

In a January 15, 2022 letter, M.M., an acting branch manager, responded to OWCP’s 

October 28, 2021 development letter. He related that in April 2006, appellant was removed for 

misconduct, but after a decade of litigation, appellant was reinstated in May 2015 based on a U.S. 

Supreme Court decision. M.M. noted that on August 23, 2015, appellant was transferred to the 

Washington field office, as requested. In February 2016 appellant’s request to stop performing

the primary duty of flying missions because he had become too famous due to his U.S. Supreme 

Court case, subsequent media coverage, and appearance before a congressional committee , was 

granted and he accepted a 45-day detail to the emergency preparedness section (EPS). On 

March 16, 2016 appellant showed his EPS supervisor a video depicting a person inside a moving 

subway car who forced the door open and leapt onto a platform before being consumed by fire.

M.M. noted that appellant thought the video was funny because a passenger was recently killed by 

fire and smoke on a local subway train. However, M.M. found the video terrifying, disturbing, 

and disgusting. Appellant responded that he grew up color blind and he was aware of rumors that 

the supervisor had exchanged sexual favors with a training officer years ago to have her records 

altered. He also sent the video to a dozen current and former federal law enf orcement officials, 

six of whom were African American. Upon completion of an investigation of this incident in 

June 2016, no disciplinary action was taken against appellant. Upon completion of his 45-day 

detail in April 2016, appellant was assigned to the visible intermodal prevention and response 

(VIPR) team. In July 2016 he requested to deploy on VIPR missions. A position was created for 

him, and he was selected for the position over other FAMs who were scheduled to rotate into 

VIPR. Multiple FAMs complained that appellant disrupted operations; disparaged the employing 

establishment, other team members, and nonemploying establishment stakeholders; displayed a 

negative attitude;spent long periods of time on his personal cell phone;failed to engage with other 

FAMs on missions; repeatedly made derogatory sexual comments to female FAMs; related that 

management could not do anything to him due to his whistleblower status; and related that he was 

going to bring down the employing establishment. As a result of appellant’s behavior, team 

members reported that they were frightened to be alone with him, and feared he would do 
7

something detrimental to the team. On an almost weekly basis, appellant’s supervisor advised him 

to cease his behavior. M.M. indicated that appellant admitted that he posted disparaging comments

and emojis about employees in July, August, and September 2017 on a Facebook group page called 

“Flying Pigs.” An investigation of these incidents revealed additional misconduct by appellant, 

which included a repeated pattern of making misogynistic statements about female FAMs, 

promoting salacious rumors about FAMs and supervisory managers, and accessing pornography 

on his agency-issued telephone. Appellant developed a ruse to gain unescorted access to the 

building where an investigative interview related to his Facebook posts was being conducted and 

he took pictures of a visitor’s log because he saw the name of an employee who he believed 

complained about his Facebook posts. Despite signing a nondisclosure agreement following his 

investigative interview, he contacted potential witnesses in the ongoing investigation and posted

false warnings and intimidating and threatening messages on Facebook and to personal e-mail 

addresses of FAMs. As a result, on October 6, 2017 appellant was issued a cease and desist order. 

In response, he alleged that he had a stress-related condition for which he sought medical treatment 

on multiple occasions and took anti-anxiety and anti-depression medications. In November 2017,

appellant submitted an employing establishment medical evaluation form completed by a 

psychiatrist regarding his work capacity and it was determined that he could return to full duty. 

On June 8, 2018 the employing establishment issued a notice of proposed removal for 

inappropriate comments. On March 21, 2019 the employing establishment issued a notice of 

decision removing appellant from employment. The employing establishment noted that appellant 

had pending claims involving a complaint filed with the EEOC and MSPB. 

M.M. denied appellant’s allegation that the employing establishment retaliated against him 

for being a whistleblower and asserted that all of the above-noted actions taken against him were 

for nonretaliatory reasons. He further denied that appellant was incorrectly placed on sick leave 

from October 7 through November 30, 2017 until he was cleared to return to work by a 

psychiatrist, noting that appellant suffered panic attacks for which he made numerous hospital 

visits and took medications. Additionally, M.M. denied that appellant’s agency-issued firearm

was incorrectly revoked pending medical clearance for his return to work. He noted thatfollowing 

the issuance of the October 2016 cease and desist order, the employing establishment medical unit 

found that appellant was not cleared for duty status and recommended that management secure his 

firearm. M.M. noted that the firearm was reissued to him when he was medically cleared to return

to duty. He also denied that the employing establishment failed to submit paperwork for 

appellant’s Form CA-2 claim, noting that his claim was submitted on December 22, 2017, and his 

supporting medical documentation was submitted on January 10, 2018. Additionally, M.M. 

denied making numerous attempts to psychologically manipulate appellant in 2016 following his 

reinstatement in 2015. Contrary to appellant’s allegation that he was accused of being a homicidal 

“racist” by a supervisor regarding the video incident, M.M. referenced the supervisor’s abovenoted reaction. He also referenced an October 10, 2021 EEOC decision, which indicated that even 

if the supervisor made the comment, it did not constitute harassment or amount to an adverse 

employment action. Further, contrary to appellant’s allegation that he was not given substantive 

duties for six months, M.M.referenced appellant’s above-noted approved requests to be reassigned 

commencing February 2016. He also denied that appellant was investigated for 2010 disclosures 

regarding a FAM who was terminated, assigned for a third time to an involuntary redirected 

assignment, accused by a supervisor of being a bad example to other FAMs, and had a prior 

supportive supervisor demoted. M.M. explained that appellant was returned to full-duty work 

based on a psychiatrist’s report and not retaliation. He indicated that appellant’s allegation that a
8

current FAM was directed onto sick leave status and to undergo a psychiatric examination was 

vague because he did not identify the employee or the specific circumstances of her case. M.M. 

submitted evidence in support of his letter.

By de novo decision dated February 9, 2022, OWCP again denied appellant’s claim, 

finding that he had not established a compensable factor of employment and, therefore, had not 

sustained an emotional condition in the performance of duty.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the

essential elements of his or her claim,6including that he or she sustained an injury in the

performance of duty, and that any specific condition or disability from work for which he or she

claims compensation is causally related to that 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 causally related to factors of a claimant’s federal

employment, he or she mustsubmit: (1) factual evidence identifying and supporting employment

factors or incidents alleged to have caused or contributed to the condition; (2) rationalized medical

evidence establishing an emotional condition or psychiatric disorder; and (3) rationalized medical

opinion evidence establishing that the emotional condition is causally related to the identified

compensable employment factors.9

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

somehow related to a claimant’s employment. There are situations where an injury or illness has

some connection with the employment, but nevertheless does not come within the purview of

workers’ compensation. When disability results from an emotional reaction to regular or specially

assigned work duties or a requirement imposed by the employment, the disability is deemed

compensable.10 However, disability is not compensable when it results from factors such as an

5

Supra note 1.

6 L.N., Docket No. 22-0126 (issued June 15, 2023); S.S., Docket No. 19-1021 (issued April21, 2021);O.G., Docket 

No. 18-0359 (issued August 7, 2019); J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

7 L.N., id.; S.S., id.; G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

20 C.F.R. § 10.115;R.S., Docket No. 20-1307 (issued June29, 2012);M.K., Docket No. 18-1623 (issued April10, 

2019); Michael E. Smith, 50 ECAB 313 (1999).

9

See S.K., Docket No. 18-1648 (issued March 14, 2019); C.M.,Docket No. 17-1076 (issued November 14, 2018);

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

10 A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian

Cutler, 28 ECAB 125, 129 (1976).
9

employee’s fear of a reduction in force, or frustration from not being permitted to work in a

particular environment, or to hold a particular position.11

An employee’s emotional reaction to administrative or personnel matters generally falls

outside of FECA’s scope.12 Although related to the employment, administrative and personnel

matters are functions of the employer rather than the regular or specially assigned duties of the

employee.13 However, to the extent the evidence demonstrates that the employing establishment

either erred or acted abusively in discharging its administrative or personnel responsibilities, such

action will be considered a compensable employment factor.14 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. 15

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

there must be evidence which establishes that the acts alleged or implicated by the employee did, 

in fact, occur.16 Mere perceptions of harassment or discrimination are not compensable under 

FECA.17 A claimant must substantiate allegations of harassment or discrimination with probative 

and reliable evidence.18 Unsubstantiated allegations of harassment or discrimination are not 

determinative of whether such harassment or discrimination occurred. 19

ANALYSIS

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

condition in the performance of duty, as alleged.

Appellant’s primary allegation when he filed his claim was that he had been improperly 

placed on involuntary sick leave on October 6, 2017. During the development of his claim 

appellant made numerous other allegations regarding the handling of his workers’ compensation 

11 Cutler, id.

12 G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001); 

Matilda R.Wyatt, 52 ECAB 421, 423 (2001); Thomas D.McEuen, 41 ECAB 387 (1990),reaff’d onrecon., 42 ECAB 

566 (1991).

13 David C. Lindsey, Jr., 56 ECAB 263, 268 (2005); McEuen, id.

14 Id.

15 A.O., Docket No. 19-1612 (issued April8, 2021); D.I., Docket No. 19-0534 (issued November 7, 2019); T.G., 

Docket No. 19-0071 (issued May 28, 2019).

16 O.G., Docket No. 18-0350 (issued August 7, 2019); K.W., 59 ECAB 271 (2007).

17 A.E., Docket No. 18-1587 (issued March 13, 2019); M.D., 59 ECAB 211 (2007); Jack Hopkins, Jr., 42 ECAB 

818, 827 (1991).

18 B.T., Docket No. 20-1627 (issued January 11, 2023); J.F., 59 ECAB 331 (2008);Robert Breeden, 57 ECAB 

622 (2006).

19 T.Y., Docket No. 19-0654 (issued November 5, 2019); G.S.,Docket No. 09-0764 (issued December 18, 2009).
10

claim,20 request for medical documentation,21 disciplinary matters and disputes regarding leave,

22

work assignments,

23 filing of grievances and EEO complaints,24workplace investigations,25 denial 

of promotions,

26 request for a security and threat assessment, and termination of his federal 

service27 relate to administrative or personnel management actions. Administrative and personnel 

matters, although generally related to employment, are administrative functions of the employer 

rather than the regular or specially-assigned work duties of the employee. For an administrative 

or personnel matter to be considered a compensable factor of employment, the evidence must 

establish error or abuse on the part of the employer.28

Regarding appellant’s primary allegation that he was forced to take involuntary sick leave 

as of October 6, 2017, the employing establishment has explained that appellant became visibly 

upset during a meeting that day and that appellant requested to take sick leave that day. Employing 

establishment official M.M. has also noted that appellant was placed on sick leave until he was 

cleared to return to work by a psychiatrist because appellant advised him that he experienced panic 

attacks for which he sought medical treatment on numerous occasions and took medications. 

Appellant has not submitted evidence of error or abuse by the employing establishment in this 

administrative matter.29

While appellant submitted letters and e-mails that, concerned some of the additional 

alleged administrative matters, this evidence did not demonstrate that employing management 

officials committed error or abuse. M.M. noted that there was no delay in filing appellant’s 

occupational disease claim as it was submitted on December 22, 2017, and his supportive medical 

documentation was submitted on January 10, 2018. Additionally, the Board notes that the record 

does not contain corroborating evidence finding that the employing establishment committed error 

20 F.R., Docket No. 20-0793 (issued December 13, 2022); K.W.,Docket No. 20-0832 (issued June 21, 2022); M.B., 

Docket No. 20-1407 (issued May 25, 2022); B.Y., Docket No. 17-1822 (issued January 18, 2019).

21 B.T., supra note 18; D.W.,Docket No. 19-0449 (issued September 24, 2019); W.M.,Docket No. 15-1080(issued

May 11, 2017); James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).

22 M.C., Docket No. 18-0585 (issued February 13, 2019); C.T., Docket No. 08-2160 (issued May 7, 2009).

23 F.R., supra note 20; M.B.,supra note 20;R.D.,Docket No. 19-0877 (issued September 8, 2020); S.B.,Docket 

No. 18-1113 (issued February 21, 2019); Donney T. Drennon-Gala, 56 ECAB 469 (2005).

24 B.T., supra note 18; M.H.,Docket No. 21-1297 (issued December 20, 2022); B.O.,Docket No. 17-1986 (issued 

January 18, 2019); James E. Norris, 52 ECAB 93 (2000).

25 F.R., supra note 20; M.B., supra note 20; J.T., Docket No. 20-0390 (issued April 2, 2021).

26 C.J., Docket No. 22-0600 (issued November 10, 2022); D.G., Docket No. 17-0514 (issued May 4, 2018);

J.M., Docket No. 16-0312 (issued June 22, 2016); Martha L. Watson, 46 ECAB 407, 418 (1995).

27 B.T., supra note 18; P.M., Docket No. 14-0188 (issued April 21, 2014); C.T.,Docket No. 09-1557 (issued 

August 12, 2010).

28 Thomas D. McEuen, supra note 12.

29 Id. 
11

or abuse.30 MM. also noted that it issued a notice of proposed removal to appellant on June 8, 

2018 for inappropriate comments, and issued a termination notice of his employment on 

March 21, 2019. He explained that appellant admitted to posting disparaging comments and 

emojis about employees on a Facebook page called “Flying Pigs,” and an investigation of this 

incident revealed that appellant repeatedly made misogynistic statements about female FAMs, 

promoted salacious rumors about FAMs and supervisory managers, and accessed pornography on 

his agency-issued cell phone. Additionally, M.M. noted that appellant’s team members 

complained about his behavior, which included making disparaging comments about his team 

members and nonemploying establishment stakeholders, and derogatory sexual comments to 

female FAMs, spending long periods of time on his personal cell phone, failing to engage with 

other FAMs on missions, and threatening to bring down the employing establishment. He related 

that appellant was counseled by his supervisor regarding his behavior on a weekly basis. M.M. 

noted that no disciplinary action was taken against appellant following an investigation of the

March 16, 2016 video incident. He reiterated that appellant’s transfer requests were granted 

following his reinstatement to work in May 2015 and again in February 2016. Additionally, as 

noted above, M.M. related that although appellant was relieved of his agency-issued firearm 

following the issuance of the October 6, 2017 cease and desist order, the firearm was reissued to 

him following his medical clearance to return to work. Based on M.M.’s statements, the Board 

finds that appellant has not substantiated error or abuse committed by the employing establishment 

in the above-noted matters and, therefore, he has not established a compensable employment 

factor.

Appellant has also attributed his emotional condition in part to Cutler31 factors. In this 

regard, he alleged that even though he had no firearms, medical or top-secret clearance restrictions 

he was not assigned substantive duties for six months. Appellant also alleged that he had not 

received the necessary training for a reassigned position. The Board has held that an employee’s 

emotional reaction to being made to perform duties without adequate training is compensable. 32 

However, appellant submitted no evidence supporting his allegations that he neither received 

substantive duties for six months, nor received training for his reassigned position. M.M. 

explained that appellant was reassigned on several occasions commencing February 2016, as he 

requested, and performed his assigned duties. He further explained that appellant’s agency-issued 

firearm was revoked from him following his reaction to the issuance of the October 2016 cease 

and desist order and subsequent recommendation from the employing establishment medical unit 

that evaluated appellant for an emotional condition. M.M. noted, however, that the firearm was 

later reissued to appellant when he was medically cleared to return to duty. Without evidence 

substantiating that appellant was not provided with substantive work duties or the requisite training 

30 A.F., Docket No. 20-0525 (issued September 14, 2020); R.B.,Docket No. 19-1256 (issued July 28, 2020);

J.E., Docket No. 17-1799 (issued March 7, 2018).

31 Supra note 10.

32 P.B.,Docket No. 19-1673 (issuedDecember 1, 2021); D.T.,Docket No. 19-1270 (issued February 4, 2020); S.S., 

Docket No. 18-1519 (issued July 17, 2019); C.T.,Docket No. 09-1557 (issued August 12, 2010); DonnaJ. 

Dibernardo, 47 ECAB 700 (1996).
12

to perform his position, appellant has failed to meet his burden of proof to establish a compensable 

factor of employment under Cutler.

Appellant also alleged that he was harassed and subjected to reprisals for being a 

whistleblower by the employing establishment and prevailing against its appeal to the MSPB, U.S. 

Court of Appeals, and the U.S. Supreme Court. The issue of whether a claimant has established 

harassment or retaliation under FECA is whether the claimant has submitted sufficient evidence 

to establish a factual basis for the claim by supporting the allegations with probative and reliable 

evidence.33 For harassment to give rise to a compensable disability under FECA, there must be 

evidence that harassment did, in fact, occur.34 Although appellant alleged that management 

engaged in actions, which he believed constituted harassment and reprisals, he provided no 

corroborating evidence to establish his allegations.35 M.M. maintained that the actions taken 

against appellant were based on nonretaliatory reasons and notto psychologically manipulate him. 

He noted that an October 10, 2021 EEOC decision found that even if a supervisor called appellant

a homicidal “racist” following the March 16, 2016 video incident, the statement did not constitute 

harassment or an adverse employment action. Based on the evidence of record, the Board finds 

that appellant has not established, with corroborating evidence, that he was harassed and subjected 

to reprisals by the employing establishment.

As the Board finds that appellant has not met his burden of proof to establish a compensable 

employment factor, it is not necessary to consider the medical evidence of record. 36

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 his burden of proof to establish an emotional 

condition in the performance of duty, as alleged.

33 D.G., Docket No. 22-0654(issued May 11, 2023); L.Y., Docket No. 20-1108 (issued November 24, 2021); A.E., 

Docket No. 18-1587 (issued March 13, 2019); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

34 Id.

35 See B.T., supra note 18; WilliamP. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not 

established where appellant did not submit evidence substantiating that such incidents actually occurred).

36 See B.T., id.; P.B., Docket No. 19-1673 (issued December 1, 2021); B.O., supra note 24 (finding that it is not 

necessary to consider the medical evidence of record if the claimant has not established any compensable employment 

factors). See also Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
13

ORDER

IT IS HEREBY ORDERED THAT the February 9, 2022 merit decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 16, 2023

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