04-0631: RODNEY A. SMITH and U.S. POSTAL SERVICE,...

United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

RODNEY A. SMITH, Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

St. Louis, MO, Employer

__________________________________________

)

Docket No. 04-631

Issued: September 13, 2005

Appearances: Case Submitted on the Record

Mike Gunter, for the appellant

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

DAVID S. GERSON, Judge

MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On January 7, 2004 appellant, through his representative, filed a timely appeal from an

October 10, 2003 decision of the Office of Workers’ Compensation Programs which denied his

emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has

jurisdiction over the merits of the claim.

ISSUE

The issue is whether appellant sustained an emotional condition causally related to

factors of his federal employment.

FACTUAL HISTORY

On February 21, 2002 appellant, then a 45-year-old district manager, filed a claim

alleging that he sustained major depression due to factors of his federal employment. Appellant

alleged that his emotional condition was due to an allegation of sexual harassment against him

which was false and to disciplinary actions taken by his supervisors. Appellant noted that he

supervised Postmaster Shelia Calvert and, following a mid-year performance review in April

2000, he advised her of action to be taken to bring her office’s performance up to a satisfactory

level. He noted that she subsequently made an allegation of sexual harassment against him.

Appellant stated that, although the false accusation of sexual harassment was stressful, “it was

the subsequent actions taken by my superiors 15 months later that has created my mental

condition.” He stopped work on June 21, 2001 and did not return.

On February 21, 2002 Dr. Mark A. Napier, a Board-certified psychiatrist, related that

appellant was under his treatment for a major depressive disorder, hypertension and stress. He

related that appellant had been falsely accused by a subordinate of sexual harassment which

appellant believed was made up in order to avoid disciplinary action. Dr. Napier noted that on

June 15, 2001 appellant has been informed by a supervisor that he could either be demoted or

fired because of the allegations. On June 19, 2001 appellant was advised that he would be

demoted. Dr. Napier advised that appellant was presently unable to return to work and that the

workplace situation described to him had contributed to the development of appellant’s

symptoms. Given appellant’s history, the physician stated that the events at work were the only

apparent source of appellant’s emotional condition.

The employing establishment controverted the claim and submitted evidence related to

the disciplinary actions taken in the case. In a June 19, 2002 letter, Roger T. Nienaber, the

district manager, addressed appellant’s allegations. He noted that, in May 2000, Ms. Calvert

contacted the manager of human resources to advise that she had been sexually harassed by

appellant. Mr. Nienaber asked Grace Corbin, the equal employment opportunity process

manager, to meet with Ms. Calvert; however, she did not respond to several requests that her

complaint be put in writing. When he first learned of the allegation, Mr. Nienaber advised

appellant not to have further contact with Ms. Calvert or anyone at her post office. In

February 2001, Ms. Calvert attended a meeting at Mr. Nienaber’s office to discuss performance

issues. She left the meeting “yelling and screaming” and subsequently filed a sexual harassment

claim. Upon notice of this complaint, Mr. Nienaber assigned the East St. Louis office to another

manager, Mary Evans. He shared the investigation file with Ms. Evans when it became apparent

that disciplinary action would need to be taken against Ms. Calvert; stating that none of her

witnesses could corroborate her allegations.

Mr. Nienaber stated that an attorney was brought in to conduct an investigation and he

obtained statements from all witnesses identified by Ms. Calvert. It was determined that

disciplinary action was appropriate against Ms. Calvert for her failure to cooperate with the

investigation. It became apparent, also, that corrective action against appellant would need to be

taken for inappropriate behavior allowed on postal premises during Christmas parties for which

he was responsible. On July 24, 2001 Mr. Nienaber met with appellant and advised him that the

sexual harassment charges were not found to be true. However, the investigation had also

determined that appellant had made inappropriate remarks to Ms. Calvert and, unless appellant

could provide further information as to what had transpired in December 1999, it would be found

that he had provided false information during the investigation.

The Office of Personnel Management approved appellant’s disability retirement on July 8, 2003.

Mr. Nienaber subsequently met with other supervisors and mangers in August 2001 to

advise upper level managers of their shared responsibility towards their personal conduct and

that of their employees and to make sure they understood that they could not have similar parties

in their offices. He indicated that appellant had been moved from one position to another, at no

loss of pay.

Attached was the April 5, 2001 investigation report conducted by Thomas J. Blum,

deputy managing counsel in Atlanta. His investigation revealed that appellant has issued several

letters of warning to Ms. Calvert in 1998 and placed her on a performance improvement plan

(PIP) to address performance problems. Her allegation of sexual harassment first arose on

May 30, 2000, complaining of inappropriate comments made by appellant to her in

December 1999. This complaint was made following a May 9, 2000 letter from appellant to

Ms. Calvert citing performance problems. Although provided appropriate complaint forms to

submit, the issue was not raised again by Ms. Calvert until a February 3, 2001 meeting with

Mr. Nienaber to discuss performance issues. Mr. Blum noted that Ms. Calvert provided a sworn

statement containing several allegations of sexual harassment by appellant. He interviewed a

number of postmasters and managers as part of the investigation and concluded that Ms. Calvert

did not produce any facts to support her allegations against appellant. As part of his

investigation, Mr. Blum noted that appellant had hosted Christmas parties in 1999 and 2000 at

which a retired postmaster had dressed up as Santa Claus and told jokes to the assembled

managers and postmasters, some of which were adult in nature with sexual references. Mr. Blum

noted that on December 15, 1999 it was alleged that appellant had made a sexually explicit

remark to Ms. Calvert. He contacted Willie Haynes by telephone regarding the accusations, who

denied that appellant had made any sexually explicit remarks to her.

Based on the investigation, on August 13, 2001 Mr. Nienaber issued a proposed

downgrade based on (a) the December 15, 1999 sexual remark of appellant to Ms. Calvert, a

subordinate employee; (b) making a false statement during the investigation by denying that any

sexual related comments to made to Ms. Calvert; and (c) for the sexual remarks made by a

retired postmaster at the Christmas party held on the employing establishment premises in

December 2000.

On October 25, 2001 David C. Fields, Sr., the midwest opperations manager

of operations support, found the charges to be credible but, in light of appellant’s service, the

action was reduced to a letter of warning in lieu of a 14-day suspension effective

He provided several inconsistent statements concerning the December 15, 1999 remarks attributed to appellant.

To Mr. Nienaber, he acknowledged that the term “pussy” had been used by appellant but was unaware of the

context. However, he later indicated that he did not hear the term used at all and stated that he exercised poor

judgment in the statements he provided to help Ms. Calvert keep her job. Mr. Haynes noted that he was a close

friend with both appellant and Ms. Calvert.

An April 23, 2001 memorandum from the Midwest Operations Manager of Human Resources noted that

Ms. Calvert’s assertions were not supported after investigation but that Mr. Nienaber should address the poor

judgment exercised by appellant in allowing adult jokes to be told at the Christmas parties.

October 29, 2001. Appellant was laterally reassigned to work as a manger of operation programs

support with responsibility over delivery programs rather than postmasters.

Appellant responded that he was not at fault as Ms. Calvert’s allegations against him

were not substantiated. He contended, however, that the investigation by Mr. Nienaber was

erroneous and that his manager had abused his authority by not promptly investigating the

allegations in 2000 when first raised. Appellant alleged that Mr. Nienaber’s meeting with area

postmasters and managers on August 29, 2001 was abusive and that Ms. Calvert had been

compelled by management to file charges against him.

By decision dated November 8, 2002, the Office denied appellant’s claim, finding that he

did not establish his allegations that management had conspired against him when investigating

the allegations of sexual harassment. It was also found that the evidence was insufficient to

establish that management had failed to promptly investigate the charges or in separating

appellant from Ms. Calvert.

Appellant requested a hearing before an Office hearing representative, which was held on

June 25, 2003. Appellant provided testimony at the hearing, as did several coworkers, who

noted that he had been wrongly accused of sexual harassment by Ms. Calvert. It was noted that

appellant’s area of responsibility at work included the supervision of 22 postmasters and 9

station managers, including Ms. Calvert. As her management was deficient, part of appellant’s

duty was to take action to correct performance and, in turn, she initiated a claim of sexual

harassment.

In an October 10, 2003 decision, the hearing representative affirmed the November 8,

2002 compensation order, finding that appellant had not established a compensable factor as

giving rise to his emotional condition.

LEGAL PRECEDENT

The Federal Employees’ Compensation Act provides for payment of compensation for

disability or death of an employee resulting from personal injury sustained while in the

performance of duty.

The phrase “sustained while in the performance of duty” is regarded as

the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,

“arising out of and in the course of performance.”

“In the course of employment” relates to the

elements of time, place and work activity. To arise in the course of employment, an injury must

occur at a time when the employee may reasonably be said to be engaged in her employer’s

business, at a place where she may reasonably be expected to be in connection with her

employment and while she was reasonably fulfilling the duties of her employment or engaged in

On October 22, 2002 a notice of proposed removal was issued for appellant’s inability to perform the duties of

his position, noting his absence since June 29, 2001. On December 23, 2002 the removal action was upheld and

made effective January 4, 2003.

5 U.S.C. § 8101 et seq.

This construction makes the statute actively effective in those situations generally recognized as properly within

the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).

doing something incidental thereto. The employee must also establish an injury “arising out of

the employment.” To arise out of employment, the injury must have a causal connection to the

employment, either by precipitation, aggravation or acceleration.

When an employee experiences emotional stress in carrying out her employment duties

or has fear and anxiety regarding her ability to carry out her duties and the medical evidence

establishes that the disability resulted from her emotional reaction to such situation, the disability

is generally regarded as due to an injury arising out of and in the course of employment. This is

true when the employee’s disability resulted from an emotional reaction to a special assignment

or requirement imposed by the employing establishment or by the nature of the work. By

contrast, there are disabilities having some kind of causal connection with the employment that

are not covered under workers’ compensation law because they are not found to have arisen out

of employment, such as when disability results from an 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.

Workers’ compensation law does not cover an emotional reaction to an administrative or

personnel action unless the evidence shows error or abuse on the part of the employing

establishment.

The Board has held that actions of an employer which the employee

characterizes as harassment or discrimination may constitute a factor of employment giving rise

to coverage under the Act, but there must be some evidence that harassment or discrimination

did in fact occur. As a general rule, allegations alone are insufficient to establish a factual basis

for an emotional condition claim.

Mere perceptions and feelings of harassment or

discrimination will not support an award of compensation. The claimant must substantiate such

allegations with probative and reliable evidence.

The primary reason for requiring factual

evidence from the claimant in support of his or her allegations of stress in the workplace is to

establish a basis in fact for the contentions made, as opposed to mere perceptions of the claimant,

which in turn may be fully examined and evaluated by the Office and the Board.

See Clayton Varner, 37 ECAB 248 (1985).

Lillian Cutler, 28 ECAB 125 (1976).

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556, 572-73 (1991).

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board

looked beyond the claimant’s allegations of unfair treatment to determine if the evidence of record substantiated

such allegations).

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to

give rise to a compensable disability, there must be evidence that harassment or discrimination did in fact occur);

Pamela R. Rice, 38 ECAB 838 (1987) (the claimant failed to establish that the incidents she characterized as

harassment occurred as alleged).

Paul Trotman-Hall, 45 ECAB 229, 234-44 (1993) (Groom, Alternate Member, concurring).

ANALYSIS

Appellant initially attributed his emotional condition to the actions taken by Mr. Nienaber

following the allegations of sexual harassment by Ms. Calvert. He noted that the allegations

were false, stated that Mr. Nienaber had “fabricated something” and put pressure on Ms. Calvert

to make charges against him. Appellant alleged error in the investigation of the matter,

contending that the charges were not promptly investigated, that he was not separated from

Ms. Calvert, and that the discipline he received was abusive. He also argued error on the part of

Mr. Nienaber for meeting with area postal management employees on August 29, 2001 and

discussing aspects of the investigation with his peers and coworkers.

The actions of an employee’s supervisor which are characterized as harassment or abuse

may constitute a compensable factor of employment if the record demonstrates that the manager

erred or acted abusively in the administration of personnel matters.

Appellant alleged that

Mr. Nienaber assisted in fabricating the sexual harassment allegations raised by Ms. Calvert.

The record indicates that, following a mid-year performance evaluation in April 2000, appellant

had counseled the postmaster that disciplinary action would need to be taken if she did not bring

up the performance of her office. He indicated that Ms. Calvert subsequently made an

accusation of sexual harassment. Mr. Nienaber stated that he first learned of the allegation after

Ms. Calvert made a telephone call to the human resources manager. He asked an EEO specialist

to meet with Ms. Calvert and advised appellant not to have direct contact with her. Mr. Nienaber

noted that, as appellant was located at a different facility, he would not have too meet with her

alone and all telephone conversations between the two parties could be monitored by a third

individual. The record does not support appellant’s contentions that Mr. Nienaber or other postal

authorities improperly solicited or fabricated the charges made by Ms. Calvert. The evidence

establishes that Ms. Calvert did not actively pursue her charges against appellant, despite

meeting with equal opportunity personnel and being provided with appropriate forms to

complete. Rather, following a February 3, 2001 meeting at which Mr. Nienaber raised

performance deficiencies on her part; Ms. Calvert followed up with a telephone call to postal

headquarters reviving her allegations against appellant. As of February 14, 2001, her supervision

was placed under Ms. Evans.

The multitude of witness statements provided to Mr. Blum from appellant’s peers and

coworkers make clear that appellant at no time engaged in the conduct alleged by Ms. Calvert in

a sworn statement. The evidence collected by Mr. Blum, however, does not substantiate

appellant’s allegation that Ms. Calvert’s assertions were brought forward based on coercion by

Mr. Nienaber or other management employees. Rather, the record sadly reflects that

Ms. Calvert’s response to criticism of her performance by her supervisors was to raise fictitious

allegations. Complicating matters were the several statements provided by Mr. Haynes, who

denied to Mr. Blum that appellant had ever made sexually explicit remarks to Ms. Calvert but

who acknowledged to postal management on several occasions that appellant had used the term

“pussy” during remarks made on December 15, 1999. There is no evidence that Mr. Nienaber

fabricated or conspired with Ms. Calvert regarding her allegations. However, as part of the

See Bernard Snowden, 49 ECAB 144 (1997).

investigation into the matter, Mr. Blum found out about conduct taking place at office holiday

parties, which formed part of the basis for appellant’s discipline.

It is well established that the employer has the right to conduct investigations into matters

when wrongdoing is suspected.

Appellant has contended that there was undue delay in the

investigation of the matters raised by Ms. Calvert; however, he has not substantiated that the

investigation conducted in this case was in error or otherwise unreasonable. It was only after the

February 3, 2001 meeting that Ms. Calvert formalized her complaint and provided a sworn

statement. This matter was investigated by outside counsel, who provided an April 5, 2001

report of his meetings with witnesses and concluded that she did not produce facts sufficient to

substantiate her allegations against appellant. The April 23, 2001 memorandum of the human

resources operations manager noted that Ms. Calvert’s assertions were not supported in the

investigation but that Mr. Nienaber should address the poor judgment exercised by appellant in

allowing adult jokes to be told at Christmas parties.

At this point, Mr. Nienaber contacted Mr. Haynes who acknowledged that appellant had

used the term “pussy” in remarks to Ms. Calvert on December 15, 1999. On August 15, 2001 the

manager issued a proposed downgrade and thereafter held an August 29, 2001 meeting with area

postmasters and managers to discuss conduct at Christmas parties and the issue of sexual

harassment. On October 25, 2001 Mr. Fields found the charges against appellant to be credible

but reduced the proposed disciplinary measure to a letter of warning. The Board has held the

fact that the employing establishment lessens a disciplinary action taken towards an employee

does not establish that it acted in an erroneous or abusive manner.

The evidence submitted by

appellant does not substantiate his contentions that the employing establishment erred in taking

the disciplinary action or in laterally reassigning him to the position of manager of operations

support.

Appellant has argued that the April 23, 2001 human resources memorandum constituted

an exoneration of the charges brought against him and that Mr. Nienaber erred in disregarding

the investigation report of Mr. Blum. This overlooks, however, that other information was

revealed during the investigation for which he was ultimately disciplined, specifically the

conduct at the office holiday parties. Moreover, the evidence reflects that the actions taken by

Mr. Nienaber were at the direction of his superiors, who had the opportunity to review and

consider the materials provided by Mr. Blum. The record does not substantiate appellant’s

allegations that Mr. Nienaber abused his authority in terms of continuing to investigate the

matter, speaking with Mr. Haynes or in the disciplinary recommendation he ultimately made.

The record is clear that Ms. Calvert was located at a post office in East St. Louis and that she did

not share an office with appellant. There is no finding by any tribunal with appropriate

jurisdiction that Mr. Nienaber did not adequately comply with postal regulations concerning the

investigation of sexual harassment allegations or in cautioning appellant as to his supervision of

Ms. Calvert until her placement with Ms. Evans on February 14, 2001. The record reflects that

on August 29, 2001 Mr. Nienaber advised upper management personnel that they were not to

have holiday parties of a similar nature and that the various managers and postmasters shared in

See Merriett J. Kauffman, 45 ECAB 696 (1994).

See Sherry L. McFall, 51 ECAB 436 (2000).

the responsibility for such activities at their individual offices. The several witness statements

provided by appellant do not substantiate his allegation of verbal abuse or error by his supervisor

in conducting the meeting. The various actions and proposals made by Mr. Nienaber were

ultimately forwarded to his superiors for review and approval. The Board finds that appellant

has not substantiated his allegations of error or abuse against Mr. Nienaber or other postal

employee’s with regard to the conduct of the investigations, the discipline taken, the supervision

of Ms. Calvert, or the meeting of August 29, 2001. He has not substantiated a compensable

factor of employment as to the administrative actions in this case.

The Board notes, however, that, at the hearing before the Office hearing representative,

appellant expanded the nature of his claim to implicate the performance of his duties as a

supervisor. The evidence of record establishes that appellant had area wide supervisory

responsibility for 22 postmasters and 9 station managers, including Ms. Calvert. As part of his

assigned duties, he met with her in April, 2000 to discuss deficiencies in her duties as a

postmaster and to propose methods to improve. The record establishes that appellant had

previously issued several letters of warning to Ms. Calvert and had placed her on a PIP in order

to address specific performance matters. In response, she initiated the sham charges of sexual

harassment against him. It is well established that where a claimed disability results from an

employee’s emotional reaction to the performance of his regular or specially assigned duties or

to a requirement of the employment, the disability comes within the coverage of the Act.

Appellant has attributed his emotional condition, in part, to the stress arising from his

supervision of Ms. Calvert and the allegations she made against him. The Board finds that the

record substantiates a compensable employment factor under Cutler.

As the Office found that there were no compensable employment factors established in

this claim, it did not conduct a review of the medical evidence. The Board will remand the case

to the Office for preparation of a statement of accepted facts and further development of the

medical evidence, as is appropriate, to be followed by a de novo decision on appellant’s

entitlement to benefits under the Act.

CONCLUSION

The Board finds that the case is not in posture for decision. Appellant has established a

compensable employment factor under Cutler and the case is remanded for further action on his

emotional condition claim.

Lillian Cutler, supra note 8.

ORDER

IT IS HEREBY ORDERED THAT the October 10, 2003 decision of the Office of

Workers’ Compensation Programs be affirmed, in part, in finding that appellant has not

established his allegations of administrative error or abuse. The decision is set aside, however,

with regard to the compensable factor found by the Board. The case is returned to the Office for

further action in conformance with this decision.

Issued: September 13, 2005

Washington, DC

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

David S. Gerson, Judge

Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge

Employees’ Compensation Appeals Board