U. S. DEPARTMENT OF LABOR
Employees’ Compensation Appeals Board
____________
In the Matter of GAIL L. DUGAS and U.S. POSTAL SERVICE,
POST OFFICE, Royal Oak, Mich.
Docket No. 96-2428; Submitted on the Record;
Issued December 22, 1998
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DECISION and ORDER
Before GEORGE E. RIVERS, MICHAEL E. GROOM,
BRADLEY T. KNOTT
The issue is whether appellant sustained an emotional condition in the performance of duty.
On August 26, 1996 appellant, a letter carrier, filed an occupational claim, Form CA-2, alleging that she sustained an adjustment disorder or stress when she had a fight with her supervisor, David Lockwood, on August 21, 1995 “over time promised off,” and that on August 23, 1995 she and Mr. Lockwood had a confrontation in which he assured her that he was going to watch her and she had better not do anything wrong. Appellant stopped working on August 24, 1995. Appellant’s duties as a carrier included casing and sorting mail for delivery, carrying up to 30 pounds on her back and walking approximately 8 miles or more a day.
In undated letters received by the Office of Workers’ Compensation Programs on September 29 and December 29, 1995, appellant alleged that certain treatment by Mr. Lockwood caused her stress. In the undated letter received by the Office on September 29, 1995, appellant stated that she was awarded her own route in Unit 2 under Mr. Lockwood’s supervision in November 1992. Appellant stated that the route was overburdened with 20 to 40 feet of mail a day, that she had to fight for assistance, that Mr. Lockwood hassled her for not being fast enough or keeping up with the volume. Appellant stated that Mr. Lockwood would check on her numerous times to make sure she was not taking an extended lunch. She further stated that Mr. Lockwood promised her he would send help but then he would not do it. Appellant also stated that at least once or twice a week she would call in around 3:30 p.m. or 4:00 p.m. to find out why her help had not arrived and by then, the night supervisor, Chris Birdsall, would state that Mr. Lockwood had not told her that she needed help but she would send someone out whenever possible. Appellant stated that eventually, when she needed help she would call when she knew Ms. Birdsall was in charge, knowing that she would send someone out.
Appellant also stated that Mr. Lockwood left bids on her case which was witnessed by other carriers. Appellant stated that one time her coworkers, Steve Anderson or Mark Esper, left a slip on her case and they were following Mr. Lockwood’s “lead.”
Appellant stated there was pressure on her to work the ten-hour overtime assignment because if an employee worked only eight hours the supervisors had to assist the employee’s route “all the time.” Appellant stated that she worked the eight-hour list in the summer months because the mail was lighter and she felt less pressure, and that she worked the ten-hour overtime list in the winter. Appellant stated that Mr. Lockwood made statements out loud about how stupid it was for her to work overtime only in the winter months when it was cold and made other statements to coworkers “running her down.” Appellant stated that when she called in sick, Mr. Lockwood said to Mr. Anderson and Mr. Esper that appellant probably had a hangover even though appellant had no record of having a drinking problem. She also stated that if she asked for help he would compare her to the surrounding carrier, stating, ‘“if they could handle it[,] why couldn’t I.”’ On the day of the week appellant had off, he would say to the other carriers, Mr. Anderson, Debbie Monrroy, Mr. Esper and others that appellant’s swing person, Karen Shepard, ‘“is good, she’ll clean up the route.”’ In an undated note received by the Office on February 6, 1996, Ms. Monrroy stated that she did not recall hearing that said.
Appellant also alleged that Mr. Lockwood’s failure to make the appropriate cut on her route to reduce the volume of the mail pursuant to her request caused her stress. Appellant stated that because of the high volume of mail on her route, she requested a special route inspection and suggested that the “cluster boxes” consisting of at least two trays of letters, three to six bundles of “flats,” and third bundles on a regular basis be eliminated. Appellant made her suggestion to the union representative, Kathy Tracy, but Ms. Tracy said that when she suggested that the change be made to Mr. Lockwood, he would not consider taking off the “cluster boxes” but took off a section which involved one tray of mail and one to three bundles a day. A letter from Ms. Tracy dated December 15, 1995 confirmed that Mr. Lockwood would not consider removing the cluster boxes as he thought it would make appellant’s route too small. Appellant stated that Mr. Lockwood kept the cluster boxes because she would have to stand outside, not because it was the best cut for the route.
Appellant also alleged that Mr. Lockwood’s failure to remove a letter of warning issued to her on January 28, 1994 for irregular attendance caused her stress. In a grievance settlement dated March 2, 1994 between Mr. Lockwood’s supervisor, David Currie and Ms. Tracy, the parties agreed that the January 28, 1994 letter of warning would be held in abeyance for a period of four months from the date of issuance and if appellant showed no instances of unscheduled absences during this period, the letter of warning would be expunged from appellant’s file. On November 16, 1994 appellant was issued a notice of suspension for seven days for irregular attendance. In a settlement agreement dated November 19, 1994 between Mr. Lockwood and Ms. Tracy, the suspension was reduced to a letter of warning. The parties agreed that the letter would be held for a period of six months from the date of issuance and would be removed if there were no further attendance problems. The agreement also indicated that the January 28, 1994 letter of warning would be expunged.
In an additional grievance settlement dated December 29, 1994 between Mr. Currie and Ms. Tracy, the November 19, 1994 letter of warning was reduced to an official discussion with the January 28, 1994 letter of warning still to be expunged from the file. On April 3, 1995 appellant was issued another letter of warning for irregular attendance. A grievance settlement dated April 19, 1995 between Mr. Lockwood and Greg Swindall stated that the April 3, 1995 letter of warning would remain in effect for three months from the date of issuance and would be removed if appellant had no incidents of unscheduled absences. By letter dated December 18, 1995, the union steward, Mr. Swindall, stated that there were incidents with appellant of “doctor approved unscheduled absences” which he repeatedly attempted to discuss with Mr. Lockwood but Mr. Lockwood refused. He stated that he finally went to Mr. Lockwood’s boss, i.e., Mr. Currie, who pulled the letter of warning. In describing the situation, appellant stated that she had been given a letter of warning for irregular absences that when she completed her probationary period and requested that the letter be pulled from her file, Mr. Lockwood did not do so. Appellant stated that it was after she filed a grievance, had Ms. Tracy and Mr. Swindall accompany her to discuss the matter with Mr. Lockwood on different occasions and had a discussion with Mr. Currie, that Mr. Currie finally removed the letter from the file.
Appellant also alleged that Mr. Lockwood’s refusal to grant her leave on August 21, 1995 caused her stress. Appellant stated that on August 9, 1995 she asked Mr. Lockwood for the day off on August 21, 1995 to pick up her daughter at the airport who was preparing for her wedding. Appellant stated that her understanding was that she would be able to go early if she got her route set up although Mr. Lockwood told her he did not know if she could have the whole day off until he saw how things went that day. Appellant stated she completed her leave slip but did not have her leave slip returned signed but it was not unusual for Mr. Lockwood to approve the leave after the employee took the leave. Appellant stated that she made comments to Mr. Lockwood during the week indicating that she planned to leave early on August 21, 1995. On August 21, 1995 appellant stated that the mail was light and she finished her route by 8:30 a.m., looked for Mr. Lockwood but could not find him, left him a note and went home. When she arrived at home her daughter stated that Mr. Lockwood had called and stated that if she did not return she would be fired. Appellant called a coworker, Shannon Reese, to do a one-hour piece that Mr. Lockwood wanted her to do but Mr. Lockwood refused to let Ms. Reese do the work for her. In a letter dated December 19, 1995, Ms. Reese confirmed appellant’s account, stating that on August 21, 1995 appellant called her to request that she complete appellant’s route, that she (Ms. Reese) asked Mr. Lockwood if she could complete appellant’s route, Mr. Lockwood agreed but said appellant must still return to work. Ms. Reese said if appellant was returning to work she would not do the work for appellant. Appellant stated that Mr. Esper and another coworker, Renee Craig, also offered to do appellant’s work but Mr. Lockwood still insisted that appellant return which appellant did and performed the requested one-hour piece. Appellant stated that on August 23, 1995 she wanted to file a grievance but instead Mr. Lockwood had an “official discussion” with her for over two hours complaining that she had left without permission on August 21, 1995. Appellant also stated that the discussion with him was heated. She stated that he told her that he was going to watch her and she better not do anything she was not supposed to and he “questioned her count.” Appellant stated that on August 23, 1995 she found her herself unable to drive to work because her hands were shaking, her heart was racing and she started crying. She went to see her doctor.
By letters dated December 13 and December 23, 1995, Mr. Lockwood noted that the employing establishment controverted the claim, denied many of appellant’s allegations or stated that some of his actions were justified as part of his administrative duties. Regarding appellant’s allegation that her route was overburdened, Mr. Lockwood stated that appellant exaggerated that she received 20 to 40 feet of mail everyday. Rather, he stated that the range of mail was within the range of 11.3 feet to 34.55 feet of mail prior to the route adjustment and no more than 31 feet of mail after the route adjustment.
Mr. Lockwood denied that he hassled appellant by urging her to work faster or telling her she was not keeping up with the volume, noting that appellant was required to case a minimum of 3.55 feet of mail an hour. He stated that regarding overtime, it was of no consequence to him whether or not appellant chose to work overtime; his only concern as supervisor was to uphold the union contract and to make sure those who were signed up for the eight-hour list worked eight hours and those who were on the overtime list received the overtime. Mr. Lockwood disagreed with appellant’s perception that she was under pressure to sign up for overtime. He also denied that appellant had to “fight for assistance,” stating that he was not obligated to provide help to the letter carrier and she was suppose to be able to complete her 10 hours of work without assistance. He stated that appellant had called once or twice over a period of several months to ask for assistance. Mr. Lockwood stated that carriers are suppose to ask for help in the morning but sometimes underestimate how much time they needed and called later in the day at which time he could only send help if it were available. He suggested appellant called late in the day.
Mr. Lockwood also denied calling appellant stupid for taking overtime in the winter. He stated he did not recall stating that appellant had a hangover when called in sick. Mr. Lockwood denied comparing appellant to another carrier but stated he made statements that Ms. Shepard was a good carrier and cleaned up route if they were particularly burdened. Regarding appellant’s assertion that he harassed her by placing a bid on her case, Mr. Lockwood stated that he believed appellant was referring to an incident where one of her coworkers filled out a bid slip, left it on her case and later told her that he had filled it out and put it there. He stated that he could not be responsible for what other employees do in the name of playing a joke and that there was much “kidding, joking and/or mockery” that went on at the employing establishment and it was unfortunate that appellant was adversely affected by it. In an undated letter received by the Office on February 26, 1996, Mr. Anderson agreed with Mr. Lockwood that the employees at the employing establishment kidded around a lot but he did not address whether he left a bid slip on appellant’s case. In a letter dated February 17, 1996, Mr. Esper denied leaving a bid slip on appellant’s case stating that he “doubted that happened.”
Regarding cuts in the route adjustment, Mr. Lockwood stated that after a careful review of relevant factors such as the volume of mail and delivery of mail, cuts are made for pragmatic reasons such as whether cuts may be made in one route without causing disorganization of another route. Mr. Lockwood stated that his responsibilities as a supervisor involved doing street observation of all letter carriers on a rotating basis and he had not singled out appellant for an inspection. He denied he singled out appellant in any way for whether she took an extended lunch stating that street observation of the carriers were part of his job duties.
Mr. Lockwood addressed the letter of warning issued to appellant on April 3, 1995. He stated that in the subsequent grievance settlement dated April 19, 1995, he agreed the letter would be removed if appellant had no irregular absence during a three-month probationary period. He stated that on April 28, 1995 appellant called in sick and therefore he was not obligated to remove the letter of warning from her file. Mr. Lockwood stated that he pulled the letter from appellant’s file hoping that they could come to some compromise regarding her attendance, but he stated that since then appellant had repeatedly shown that she could not maintain regular attendance. The record does not show, however, that appellant took sick leave on April 28, 1995 although Mr. Lockwood recorded that date in a note section of an absence analysis chart but did not explain its significance. Further, there is no evidence that Mr. Lockwood pulled the April 3, 1995 letter or warning or any other letter of warning from appellant’s file.
Regarding the August 21, 1995 leave incident, Mr. Lockwood stated that on August 9, 1995, he told appellant that “possibly” she would be able to come in, set up her route and then leave, but he had said that at that time he could not guarantee her a day of leave that far in advance. Mr. Lockwood stated that when he spoke with appellant on the telephone the morning of August 21, 1995, he told appellant that he needed her because he was five routes short. He denied stating that she would be fired. Mr. Lockwood also stated that when appellant left the employing establishment on August 21, 1995 and left a leave slip without notifying anyone, she violated an employment regulation. He also stated that, in the discussion with appellant on August 23, 1995, she was the one who was “heated.” Further, he stated that regarding appellant’s assertion that he questioned her count, he stated that appellant requested an additional two hours to carry her route due to a high volume of mail. As part of his supervisory duties, he was expected to verify the volume of mail, and therefore he counted appellant’s mail and determined that her volume was not as high as she had claimed and required only one hour of overtime rather than two hours.
By decision dated May 1, 1996, the Office denied the claim.
The Board finds that appellant has failed to establish that she sustained an emotional condition in the performance of duty.
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 her regular or specially-assigned
duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Federal Employees’ Compensation
Act.[1]
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 frustration from
not being permitted to work in a particular environment or to hold a particular
position.[2]
Appellant has the burden of establishing by the weight of the reliable, probative and substantial evidence that the conditions for which he claims compensation were caused or adversely affected by factors of his federal employment.[3] This burden includes the submission of a detailed description of the employment conditions or factors which appellant believes caused or adversely affected the condition or conditions for which he claims compensation. This burden also includes the submission of rationalized medical opinion evidence, based on a complete factual and medical background of the employee, which shows a causal relationship between the conditions for which compensation is claimed and the implicated employment factors or incidents.[4]
In the present case, regarding appellant’s allegation that she felt pressured to work overtime, appellant has not established a compensable factor of employment. Appellant did not assert that actually working overtime caused her stress but the pressure by Mr. Lockwood to work overtime was stressful. Mr. Lockwood denied, however, that appellant was under any pressure to work overtime, that it was up to the employee whether he or she chose to be on the eight-hour or ten-hour overtime list, and it was his job to see that they worked whichever job shift they chose. He also stated that appellant’s route was not overburdened and gave specific measures of the volume of mail appellant was handling. Further, appellant did not establish that pursuant to her discussion with Mr. Lockwood on August 23, 1995 that Mr. Lockwood abused his discretion or acted unreasonably by “counting” her mail and determining that appellant only required one hour of overtime, not two hours. The Board has held that where overtime is not a requirement imposed by the employment or generated by an increased volume of work, it does not relate to appellant’s regularly assigned duties,[5] and therefore is not a compensable factor of employment. As appellant has not established that she was pressured to work overtime but rather volunteered to work the 10-hour shift or that her route was overburdened, appellant has not established that management acted unreasonably or abusively regarding these matters.
Appellant did not establish that Mr. Lockwood’s inspection of her route, his refusal to eliminate the cluster boxes or monitoring her to see that she did not have an extended lunch hour constituted harassment. Mr. Lockwood explained that inspecting the carrier’s routes and monitoring his or her lunch hour were part of his job. Further, his refusal to eliminate the cluster boxes were made for pragmatic reasons such as the negative impact it would have on other routes. As appellant’s having her route inspected, her lunch hour monitored, and Mr. Lockwood’s refusing to cut the cluster boxes from her route was an administrative function, unrelated to her usual job duties, appellant has not shown that management acted abusively or unreasonably in this regard.[6] She therefore has not established that these incidents were factors of employment.
Mr. Lockwood also denied that appellant had to “fight for assistance,” and noted that he was not obligated to provide assistance to a carrier working a 10-hour assignment, and further, contrary to appellant’s assertion that she frequently requested assistance which was refused, he stated appellant only asked for help twice over several months. He also suggested that appellant asked for help too late in the day when the help might not be available. Receiving assistance to perform one’s job is regarded as an administrative function and only constitutes a factor of employment if appellant shows management acted abusively or unreasonably.[7] Appellant has not met her burden in this regard.
Regarding the alleged derogatory remarks Mr. Lockwood made to appellant when he: (1) said it was stupid for her to work overtime in winter; (2) when she called in sick he said that she had a hangover; and (3) he said a coworker did a good job and therefore why couldn’t appellant. The Board has held that verbal abuse by a supervisor or coemployee is not compensable if it relates to matters or interactions not directly related to appellant’s job duties and that mere perceptions or generally stated assertions of dissatisfaction with coemployees will not support a claim for an emotional disability.[8] The Board has also held that a claim based on a difficult relationship with a supervisor must be supported by the record.[9] In the present case, Mr. Lockwood denied stating he called appellant stupid for working overtime in the winter. Appellant has produced no corroborating evidence that Mr. Lockwood made this statement. Mr. Lockwood stated he did not recall saying that appellant had a hangover when she called in sick and appellant also produced no corroborating evidence for that statement. Mr. Lockwood denied that he compared appellant to another carrier but stated that he made statements that Ms. Shepard was a good carrier and cleaned up the route if they were particularly burdened. He also stated that there was “quite a bit of kidding, joking and/or mockery” that went on at the employing establishment and that it was unfortunate that appellant perceived these as personal attacks and was adversely affected by them. His remarks about Ms. Shepard therefore do not constitute verbal abuse. As for the heated discussion that supposedly occurred on August 23, 1995, Mr. Lockwood stated that appellant was the one who had a heated discussion. Further, appellant’s assertion that Mr. Lockwood “hassled” her to work faster was denied by Mr. Lockwood and not corroborated by any other evidence. Appellant has not presented sufficient evidence to establish that her supervisor either made derogatory remarks to her or by certain comments, harassed her.[10] Similarly, Mr. Lockwood denied placing bid slips on appellant’s desk and appellant did not provide any corroborating evidence that Mr. Lockwood did this. She therefore did not show that he harassed her in this regard. She did not establish conclusively that another coworker placed a bid slip on her case or that management had anything to do with that if it did happen.
Regarding the letter of warnings and suspension she received, the Board has held that disciplinary matters concerning an oral reprimand, discussions or letters of warning for conduct pertain to actions taken in an administrative capacity.[11] As such, they only constitute a compensable factor of employment if claimant establishes that the employer erred or acted abusively or unreasonably in carrying out its administrative function.[12] In responding to appellant’s allegation that he refused to pull a letter of warning from appellant’s file, Mr. Lockwood referred to the April 19, 1995 letter of warning and stated that he was not obligated to remove the letter because appellant violated the subsequent three-month probationary period by having an unscheduled absence on April 28, 1995. The documentation in the record, however, does not support that appellant had an unscheduled absence on that date. Regardless, however, of the status of the April 19, 1995 letter of warning, Mr. Lockwood did not address why he did not remove the January 28, 1994 letter of warning. After that letter was issued, in two subsequent grievance settlements dated November 19 and December 29, 1994, management and the union agreed that the January 28, 1994 letter of warning was to be removed from the file. Mr. Swindall and Ms. Tracy indicated they tried to have the letter of warning removed (without describing which letter of warning) but Mr. Lockwood refused and finally Mr. Currie removed it. In the instant case, Mr. Lockwood’s refusal to remove the January 28, 1994 letter from appellant’s file is unreasonable given that management had agreed the letter should be removed in two grievance settlements and the union stewards attempted to have him comply. Therefore, Mr. Lockwood’s refusal to remove the January 28, 1994 letter of warning constitutes a compensable factor of employment.
Regarding appellant’s denial of her request for leave on August 21, 1995, the Board has held that requests for leave relate to administrative or personnel matters, unrelated to the employee’s regular or specially assigned work duties and do not fall within the coverage of the Act.[13] However, the Board has found that an administrative or personnel matter will be considered an employment factor where the evidence discloses error or abuse on the part of the employing establishment. Appellant admitted that on August 9, 1995 when she initially requested the leave for August 21, 1995 Mr. Lockwood stated he was not sure if she could have that day off and would have to see how things went that day. In his undated letter received by the Office on February 16, 1996, Mr. Lockwood stated that it was an employment regulation that the employee could not take leave without first obtaining approval from her supervisor which appellant did not do on August 21, 1995. Mr. Lockwood denied telling appellant that he would fire her if she did not return. He also stated that he was five routes short that day and needed appellant to return. His statement in this regard conflicts with the accounts of appellant and her coworker, Ms. Reese, that appellant only had a one-hour piece to do that day (after appellant had completed her regular mail route) and despite Ms. Reese’s offer to do it for appellant, Mr. Lockwood insisted that appellant return to work. While it appears based on appellant’s and Ms. Reese’s accounts that Mr. Lockwood could have managed that day without requiring appellant to return to work, it was within his discretion whether to grant her annual leave when appellant had not previously obtained his permission. Mr. Lockwood therefore did not abuse his discretion and therefore appellant has not established a compensable factor of employment.
As noted above, appellant established a compensable factor of employment in Mr. Lockwood’s refusing to remove the January 28, 1994 letter of warning. Appellant therefore has the burden to present medical evidence showing that specific factor of employment caused her stress.[14] In the present case, the only medical evidence appellant submitted which addresses the cause of her emotional condition are the reports of a social worker, Carol A. Johns, dated October 16, 1995 and of Dr. J. Kenneson, an osteopath, dated December 21, 1995. In her October 16, 1995 report, Ms. Johns stated that appellant had been feeling overwhelmed with work and domestic conflicts and that her normal coping avenues had become depleted. She stated that appellant required counseling for problems related to work and domestic stress. Ms. Johns’ report, however, does not specifically state which factors of employment contributed to appellant’s emotional condition, and therefore is not probative. Her report is also not probative, however, because as a social worker she is not a physician within the meaning of the Act.[15]
In his December 21, 1995 report, Dr. Kenneson considered appellant’s history of injury, performed a mental examination and diagnosed anxiety. He noted these conditions of appellant’s workplace contributed to her emotional condition: that appellant’s work in the A unit was overburdened and she had to continually fight for assistance, she felt her boss, Mr. Lockwood, was hassling her by telling her that she was not working fast enough, appellant was unable to keep up with the volume, and she was checked on numerous times in the field. Further, when appellant left work early on August 21, 1995 after making arrangements two weeks beforehand, Mr. Lockwood called her at her home and told her that she had to return to work or she would lose her job. Dr. Kenneson stated that appellant’s relationship with her boss caused most of her anxiety. He stated that it had been aggravated somewhat by issues that were occurring at home, but he felt that the primary cause was the situation that she had been experiencing at work. Since appellant did not establish that the specific factors Dr. Kenneson described as contributing to appellant’s condition were factors of employment, Dr. Kenneson’s opinion does not establish that appellant’s emotional condition arose from her employment. Appellant has therefore not presented sufficient rationalized medical evidence to establish that her emotional condition arose from her employment.
The decision of the Office of Workers’ Compensation Programs dated May 1, 1996 is hereby affirmed.
Dated, Washington, D.C.
December 22, 1998
George E. Rivers
Member
Michael E. Groom
Alternate Member
Bradley T. Knott
Alternate Member
[1] Dinna M. Ramirez, 48 ECAB ____ (Docket No. 94-2062, issued January 17, 1997); see Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).
[2] Michael Ewanichak, 48 ECAB ___ (Docket No. 95-451, issued February 26, 1977); Lillian Cutler, 28 ECAB 125 (1976).