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        NOTE: This disposition is nonprecedential.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
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 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
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 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).
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 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
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 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.
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 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
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 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.
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 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
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 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
