The facts described are taken from the appeals court decision in Lee v Federal Aviation Administration (CAFC No. 2019-1790 (nonprecedential) 7.29.2020)
Evelyn Lee has worked as a civil engineer for the FAA for some 8 years. The agency opened an investigation into both Ms. Lee and a co-worker when some inappropriate unsolicited email was sent to Ms. Lee’s work email address. A detailed forensic report of Lee’s internet use showed that over a four-month period Ms. Lee had 33,968 transactions online. These included eBay, Amazon, and Etsy, and many other sites not related to FAA business. The activity was both during and after work hours and showed that Lee was selling crafts through “BoosTinyBits” on Etsy using her government resources. (Opinion p. 2)
Ms. Lee was interviewed by the investigator. Her union rep was present. She denied using her agency time and computer for personal reasons while on duty. She denied making purchases from eBay and Amazon. She admitted to running a personal business online but denied using government time. She admitted she knew she was not supposed to use government time and computer to operate her business. (p. 3)
FAA proposed to remove Ms. Lee for misuse of government time and property and lack of candor. In her response Lee argued that the agency had way overestimated the amount of time involved in her personal activities, pointing out that she sometimes left windows open in the background when she went back to using her computer for business reasons. Apparently moved by this argument, the boss asked investigators to look again and scrub the numbers to make sure they included only the non-work transactions. The investigators went back to the drawing board and reported 22,829 questionable transactions as a result of the new scrub of the data. They calculated therefore that Ms. Lee had averaged 1 hour 44 minutes per day of activity that was not clearly work-related over the 45-day period they examined.
The agency took the new data into account and mitigated the penalty from removal to a 45 day suspension, considering also her clean disciplinary record, her work performance, five years of service, and her personal assurance that she had stopped using her government time and equipment on non-work-related activities, as well as for her Etsy store.
While many might breathe a sigh of relief, Ms. Lee and her union invoked arbitration to contest the 45-day suspension. A key argument was that the agency had failed to comply with a requirement in the Collective Bargaining Agreement that it take “prompt” discipline. After all, it had taken some five months after the agency’s initial interview of Ms. Lee until it made the final decision. (It is not mentioned in the court’s decision whether the Arbitrator took into account the delay required by Ms. Lee’s request that it review the hours of inappropriate use again, which contributed to any delay). In any event, the Arbitrator sustained all of the charges and specifications, but due to the delay in taking discipline, he mitigated the penalty to a 30-day suspension.
Having ducked a removal proposal and having received a mitigation of the 45 day to a 30-day suspension, Ms. Lee took her case to the appeals court.
The court has declined to overturn the suspension, finding that the Arbitrator’s decision was supported by substantial evidence.