Case: 19-1790 Document: 52 Page: 1 Filed: 07/29/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EVELYN LEE,
Petitioner
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent
______________________
2019-1790
______________________
Petition for review of an arbitrator’s decision in No.
CSA-18-G2018-00731-ESW by Patrick Halter.
______________________
Decided: July 29, 2020
______________________
MARGUERITE L. GRAF, National Air Traffic Controllers
Association, Washington, DC, for petitioner. Also repre-
sented by MAGEN STEVENS, ERINA M. HAMMOND.
ALISON VICKS, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent. Also represented by ETHAN P. DAVIS,
TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
______________________
Case: 19-1790 Document: 52 Page: 2 Filed: 07/29/2020
2 LEE v. FAA
Before PROST, Chief Judge, REYNA and HUGHES, Circuit
Judges.
HUGHES, Circuit Judge.
Evelyn Lee petitions for review of an arbitrator’s award
imposing a 30-day suspension of her employment with the
Federal Aviation Administration. Because substantial ev-
idence supports the Arbitrator’s decision to sustain all
three agency charges against Ms. Lee, we affirm.
I
Ms. Lee is a civil engineer for the FAA, where she has
worked since 2012. In April 2017, a co-worker sent an un-
solicited email containing inappropriate pictures to
Ms. Lee’s work email address. When that email came to
light, Ms. Lee’s second-line manager, John Smith, re-
quested that the agency’s investigations unit pull the in-
ternet and email history from both the sender’s and
Ms. Lee’s work computers.
The forensic report of Ms. Lee’s FAA internet history
spanned more than 1,900 pages and revealed that between
January and April 2017, Ms. Lee conducted 33,968 online
transactions. Mr. Smith saw concerning levels of activity
on eBay, Amazon, and Etsy, among other non-work-related
sites. He was particularly concerned that, both during and
after work hours, Ms. Lee was frequently visiting Etsy
where, as he discovered, she sold handmade crafts through
her account, “BoosTinyBits.”
After receiving this report, Ms. Lee was called to an in-
vestigatory interview. The scheduling notice stated that
the interview’s purpose was to discuss potential discipline
regarding allegations of “Misuse/Abuse of Government
Time, Misuse/Abuse of Government Computer/Internet/
Email, Sending/Receiving Inappropriate Jokes/Pictures of
a Sexual Nature, and Failure to Report.” J.A. 210. At the
interview, Ms. Lee was questioned in the presence of her
union representative about both the inappropriate email
Case: 19-1790 Document: 52 Page: 3 Filed: 07/29/2020
LEE v. FAA 3
and about her internet activity on her work computer.
Ms. Lee, who was unaware that her internet history had
been accessed, denied using her government computer “for
unofficial personal reasons while on duty for any reason.”
J.A. 181. She also denied making purchases from eBay and
Amazon while on government time. Id. When asked if she
was “using [her] Government computer/laptop for unoffi-
cial purposes,” including making purchases from Amazon,
Ms. Lee answered, “No. I purchase stuff from Amazon for
work.” Id. And when asked the same question regarding
purchases from eBay, she answered, “I do not know.” Id.
When asked if she was “conducting personal business
and/or running a commercial online business,” Ms. Lee re-
sponded, “Yes,” but she denied doing so while on govern-
ment time. J.A. 182. Ms. Lee confirmed that she owned
and/or operated a “business named, ‘Boos Tiny Bits,’” and
that she was aware that she was unauthorized to use gov-
ernment time or her government computer to operate a
business. Id. When asked if there was “absolutely any-
thing that [she] would like to disclose to the Agency,” she
answered, “No.” J.A. 183. At several points, Ms. Lee asked
the interviewer to clarify his questions, but he told her that
he could not depart from the questions as written. In re-
sponse to a closing question about her relationship with the
sender of the inappropriate email, and after conferring
with her union representative, Ms. Lee stated simply that
she did not understand the question. Id.
In October 2017, the FAA proposed Ms. Lee’s removal
for misuse of government property, misuse of government
time, and lack of candor stemming from her unauthorized
internet usage both on- and off-duty, including running a
“commercial online business” on Etsy. J.A. 185–87. In her
written response, Ms. Lee argued, as relevant, that the
agency overestimated the time she spent online for per-
sonal reasons, asserting that she sometimes left websites
open in the background and it was unclear to her how the
forensic report accounted for those open windows. Due to
Case: 19-1790 Document: 52 Page: 4 Filed: 07/29/2020
4 LEE v. FAA
those concerns, Mr. Smith requested a supplemental report
from the investigations unit. The supplemental report ex-
cluded obviously work-related transactions and removed
from the time calculations any periods where the time be-
tween active clicks on a certain webpage was more than
five minutes. Still, 22,829 internet transactions remained.
Based on this narrowed data, the supplemental report cal-
culated that Ms. Lee had an average of 1 hour and 44
minutes per day of not clearly work-related internet use
over the 45 workdays on which her usage was tracked.
Using the supplemental report, the FAA issued its final
decision in April 2018 mitigating the penalty from removal
to a 45-day suspension. The mitigation was based on
Ms. Lee’s lack of prior formal discipline, her satisfactory
work performance, her five years of federal service, and her
statement that she had stopped Etsy transactions at work,
stopped accessing the Etsy website, and ceased “all non-
work[] related usage of Amazon and eBay.” J.A. 204. The
National Air Traffic Controllers Association (Union) filed a
grievance on Ms. Lee’s behalf contesting her suspension
under the terms of a consolidated bargaining agreement
(CBA) with the FAA. After the grievance was denied, the
Union invoked arbitration.
On October 31, 2018, the Arbitrator held a hearing at
which Ms. Lee, Mr. Smith, and the creator of the forensic
data report testified. On February 19, 2019, the Arbitrator
issued an award finding that the FAA had proven each
charge: misuse of government property, misuse of govern-
ment time, and lack of candor. But because the agency had
not complied with a CBA requirement for “prompt” disci-
plinary action (by waiting five months after the investiga-
tory interview to initiate the action), he reduced Ms. Lee’s
45-day suspension to 30 days.
Ms. Lee petitions for review of the Arbitrator’s decision.
We have jurisdiction under
5 U.S.C. §§ 7121(f), 7703(b)(1)
and
28 U.S.C. § 1295(a)(9).
Case: 19-1790 Document: 52 Page: 5 Filed: 07/29/2020
LEE v. FAA 5
II
A federal employee seeking to challenge disciplinary
action by her employing agency may appeal her claim to
the Merit Systems Protection Board or, alternatively, take
her claim to an arbitrator under a negotiated grievance
procedure created by collective bargaining agreement.
5 U.S.C. § 7121(e)(1); Buffkin v. Dep’t of Def.,
957 F.3d
1327, 1329 (Fed. Cir. 2020). Under
5 U.S.C. § 7121(f), we
review an arbitrator’s decision using the same standard of
review that applies to appeals from decisions of the MSPB,
see
5 U.S.C. § 7703. Thus, we must affirm the Arbitrator’s
decision unless it is not supported by substantial evidence,
was obtained without following procedures required by
law, rule, or regulation, or was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the
law.”
5 U.S.C. § 7703(c); Martin v. Dep’t of Veterans Af-
fairs,
412 F.3d 1258, 12664 (Fed. Cir. 2005). Ms. Lee chal-
lenges the Arbitrator’s determinations regarding each of
the three charges. We consider each in turn.
A
We first address whether substantial evidence sup-
ports the Arbitrator’s finding that the FAA proved its
charge of misuse of government property. The Arbitrator
found that the FAA proved this charge on two grounds: ex-
cessive personal internet usage and use of FAA internet for
a commercial purpose or financial gain. As to the first
ground, Ms. Lee contends that the supplemental forensic
report exaggerated her unauthorized internet use because
it still included work-related transactions and overesti-
mated the time she actively spent on any given webpage.
As to the second ground, Ms. Lee contends that her Etsy-
related activities were not for personal financial gain, and
there was insufficient evidence to show she was conducting
a commercial business.
Unauthorized FAA internet use includes “[u]sing the
Internet for any purpose that violates the law, or FAA
Case: 19-1790 Document: 52 Page: 6 Filed: 07/29/2020
6 LEE v. FAA
rules, regulations, and policies.” J.A. 703 (FAA Or-
der 1370.79A(6)(a)(2)(a)). It also includes “[u]sing FAA In-
ternet resources for any commercial purpose, for financial
gain . . . or in support of outside individuals or entities.”
J.A. 703 (FAA Order 1370.79A(6)(a)(2)(f)). While “limited
personal use”—defined as “brief communications or Inter-
net searches”—is authorized, it must not interfere with the
FAA user’s employment or other obligations to the govern-
ment or violate other FAA rules. J.A. 703 (FAA Or-
der 1370.79A(6)(a)(1)(b)).
Substantial evidence supports the first ground that
Ms. Lee’s personal internet usage was not “limited” within
the meaning of the FAA’s internet policy. In making this
finding, the Arbitrator reasonably relied on the FAA’s cal-
culation from the supplemental forensic report over
Ms. Lee’s own estimation. 1 The Arbitrator stated in his
award that, even halving the number of entries on the sup-
plemental report, over 11,000 unauthorized internet trans-
actions would remain, equating to at least 163 transactions
daily. J.A. 16. Mr. Smith’s review of the forensic report
provides further support. Mr. Smith testified that when he
compared Ms. Lee’s internet usage with that of her
coworker while investigating the inappropriate email, he
saw that 95% of the coworker’s internet usage was work-
related. J.A. 742. By contrast, when he reviewed Ms. Lee’s
internet usage, he “didn’t know where to start” because he
had never seen so much data for such a limited timeframe.
J.A. 742, 748. Mr. Smith also testified that numerous
1 At the arbitration hearing, Ms. Lee testified that
more than half of the entries in the supplemental report
were duplicates; and her own analysis of the forensic report
showed that she only spent an average of 3.25% of her
workday on personal internet use, far less than the
agency’s calculation that she averaged 1 hour and
44 minutes per day in personal use.
Case: 19-1790 Document: 52 Page: 7 Filed: 07/29/2020
LEE v. FAA 7
pages of the supplemental report showed absolutely no
work-related data entries and did not reflect “limited per-
sonal use” of the internet. J.A. 760.
Substantial evidence also supports the Arbitrator’s
finding on the second ground that Ms. Lee used FAA inter-
net resources for a commercial purpose or financial gain by
operating her “BoosTinyBits” Etsy shop. Initially, like the
Arbitrator, we note that Etsy is an e-commerce platform
designed to sell goods. About Etsy, https://www.etsy.com/
about (describing Etsy as a “global marketplace for unique
and creative goods”). Although Ms. Lee may not have set
up her Etsy profile with the intention of operating a busi-
ness, she was admittedly selling goods on Etsy between
January and April 2017. J.A. 53. Whether or not she ac-
tually turned a profit, her Etsy sales were, by definition,
commercial. The record is replete with evidence that she
facilitated her Etsy sales while using FAA internet on her
work computer. For example, the forensic report shows
that on January 19, 2017, Ms. Lee accessed Etsy to view
her “Sold Orders” and created shipping labels for items sold
from her shop on that day. See J.A. 239. There is more
than sufficient evidence to show that Ms. Lee was using
FAA property for a “commercial purpose” or for “financial
gain” in violation of FAA policy.
Accordingly, substantial evidence supports the Arbi-
trator’s decision to sustain the misuse of government prop-
erty charge.
B
Next, we consider whether substantial evidence sup-
ports the Arbitrator’s finding that the FAA proved its
charge of misuse of government time. As with the first
charge, the Arbitrator found that the FAA proved this
charge on two grounds: that Ms. Lee recorded as duty
hours the time she dedicated to repeatedly accessing web-
sites for unauthorized purposes and for operating her per-
sonal business. J.A. 17–18. Ms. Lee only briefly challenges
Case: 19-1790 Document: 52 Page: 8 Filed: 07/29/2020
8 LEE v. FAA
this determination, citing the same arguments she as-
serted for the misuse of property charge. Pet. Br. 23–24. 2
We continue to find those arguments unconvincing. And
Ms. Lee does not separately dispute the Arbitrator’s find-
ing that she improperly recorded her time in her time and
attendance reports. See J.A. 17. Ms. Lee has not shown a
lack of substantial evidence for the Arbitrator’s finding on
this charge.
C
Finally, we address whether substantial evidence sup-
ports the Arbitrator’s finding that the FAA proved its
charge of lack of candor. The FAA’s Human Resources Pol-
icy Manual (HRPM) Standards of Conduct require employ-
ees to give complete and truthful statements to any
manager, Special Agent, or department official conducting
an investigation. J.A. 187 (citing HRPM Standards of Con-
duct ¶ 9(a)). FAA employees are required to review the
Standards of Conduct annually, and Ms. Lee confirmed at
the start of the investigatory interview that she was aware
that under those standards she needed to provide “com-
plete and truthful information.” J.A. 179, 765–66.
To prove lack of candor, the FAA had to establish that
Ms. Lee gave statements that she knew were inaccurate or
incomplete. J.A. 18; see Ludlum v. Dep’t of Justice,
278 F.3d 1280, 1283–85 (Fed. Cir. 2002) (distinguishing
lack of candor as a “broader and more flexible concept” than
a charge of falsification, in that lack of candor does not
2 Ms. Lee also contends, in a one-sentence footnote,
that this second charge is duplicative of the first. Pet. Br.
23 n.19. While we need not address such undeveloped ar-
guments, we note that, despite using some of the same ev-
idence as the first charge, the misuse of government time
charge involves a different element, i.e., Ms. Lee misreport-
ing her time, versus misusing government property.
Case: 19-1790 Document: 52 Page: 9 Filed: 07/29/2020
LEE v. FAA 9
involve a separate element of intent to deceive). Ms. Lee
does not deny that she provided incomplete answers to the
interviewer but asserts that she did not knowingly provide
such answers, largely because she did not understand the
questions.
Once again substantial evidence supports the Arbitra-
tor’s conclusion sustaining this charge. First, the record
supports the Arbitrator’s finding that Ms. Lee knew her e-
commerce business was under investigation. See J.A. 18.
While she was unaware that her internet history had been
accessed, Ms. Lee had ample opportunity to discern that
her internet activities, including her Etsy operations, were
under investigation. The interview notice itself listed mul-
tiple broad allegations, and a significant portion of the in-
terview specifically asked about her eBay and Amazon
activities as well as “operating a business” identified as
“BoosTinyBits.” J.A. 182, 210. There is no indication that,
at the time of the interview, Ms. Lee objected to the char-
acterization of her Etsy account as a “business”; rather, she
simply confirmed that she owned or operated that busi-
ness. J.A. 182. Nevertheless, Ms. Lee did not supplement
her prior answers to disclose, for instance, that she used
FAA resources to operate her Etsy business when given the
opportunity at the end of the interview. See J.A. 183.
Further, Ms. Lee’s answers to the questions about any
unauthorized eBay and Amazon purchases also support
the Arbitrator’s rejection of her explanation that she did
not understand the phrase “unofficial purposes.” See
J.A. 19. Ms. Lee’s response that she “purchase[d] stuff
from Amazon for work,” J.A. 181, adequately supports a
conclusion that she understood the phrase “unofficial pur-
poses” to mean not work-related.
Despite the inartful phrasing of some of the interview
questions, it was reasonable for the Arbitrator to find them
clear enough to elicit more fulsome responses than the one-
word yes or no answers Ms. Lee repeatedly gave. Although
Case: 19-1790 Document: 52 Page: 10 Filed: 07/29/2020
10 LEE v. FAA
Ms. Lee later testified that she found the questions regard-
ing her internet activity and business operations confusing,
none of her responses to those questions state a lack of un-
derstanding like the response she gave to the interpersonal
relationships question. Compare J.A. 181–82, with
J.A. 183. That she provided a response stating her lack of
understanding for that question, but none of the others,
provides an additional basis for the Arbitrator not to credit
Ms. Lee’s subsequent explanations for the way she an-
swered.
Again, substantial evidence supports the Arbitrator’s
finding that Ms. Lee demonstrated a lack of candor at her
interview.
III
We have considered Ms. Lee’s remaining arguments
and find them unpersuasive. Because substantial evidence
supports the Arbitrator’s decision, we affirm.
AFFIRMED
