NOTE: This disposition is nonprecedential.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 represented by MAGEN STEVENS, ERINA M. HAMMOND. 

 ALISON VICKS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, for respondent. Also represented by ETHAN P. DAVIS, 

TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR. 

 ______________________

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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 evidence 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 unsolicited 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, requested that the agency’s investigations unit pull the internet 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 investigatory 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 unofficial 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 responded, “Yes,” but she denied doing so while on government 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 government time or her government computer to operate a 

business. Id. When asked if there was “absolutely anything 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 response 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 personal 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 excluded obviously work-related transactions and removed 

from the time calculations any periods where the time between 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 calculated 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 nonwork[] 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 government time, and lack of candor. But because the agency had 

not complied with a CBA requirement for “prompt” disciplinary action (by waiting five months after the investigatory 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 Affairs, 412 F.3d 1258, 12664 (Fed. Cir. 2005). Ms. Lee challenges the Arbitrator’s determinations regarding each of 

the three charges. We consider each in turn.

A

We first address whether substantial evidence supports 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: excessive 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 overestimated the time she actively spent on any given webpage. 

As to the second ground, Ms. Lee contends that her Etsyrelated 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 Order 1370.79A(6)(a)(2)(a)). It also includes “[u]sing FAA Internet 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 Internet searches”—is authorized, it must not interfere with the 

FAA user’s employment or other obligations to the government or violate other FAA rules. J.A. 703 (FAA Order 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 calculation 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 supplemental report, over 11,000 unauthorized internet transactions 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 workrelated. 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 personal use” of the internet. J.A. 760.

Substantial evidence also supports the Arbitrator’s 

finding on the second ground that Ms. Lee used FAA internet 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 business, she was admittedly selling goods on Etsy between 

January and April 2017. J.A. 53. Whether or not she actually 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 Arbitrator’s decision to sustain the misuse of government property charge. 

B

Next, we consider whether substantial evidence supports 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 websites for unauthorized purposes and for operating her personal 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 asserted 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 finding 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 supports the Arbitrator’s finding that the FAA proved its 

charge of lack of candor. The FAA’s Human Resources Policy Manual (HRPM) Standards of Conduct require employees to give complete and truthful statements to any 

manager, Special Agent, or department official conducting 

an investigation. J.A. 187 (citing HRPM Standards of Conduct ¶ 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 “complete 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 arguments, we note that, despite using some of the same evidence as the first charge, the misuse of government time 

charge involves a different element, i.e., Ms. Lee misreporting her time, versus misusing government property. 

Case: 19-1790 Document: 52 Page: 8 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 Arbitrator’s conclusion sustaining this charge. First, the record 

supports the Arbitrator’s finding that Ms. Lee knew her ecommerce 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 multiple broad allegations, and a significant portion of the interview 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 characterization of her Etsy account as a “business”; rather, she 

simply confirmed that she owned or operated that business. 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 purposes” 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 oneword 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 regarding her internet activity and business operations confusing, 

none of her responses to those questions state a lack of understanding 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 answered.

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

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