By Barbara Haga, November 17, 2020

In a prior column, I addressed the case of Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020) in regard to failure to truthfully respond during an investigation and potential (or lack of it) for rehabilitation.

To recap: Lee was a civil engineer who was conducting extensive personal business on duty. The agency initially proposed removal but lowered the penalty to a 45-day suspension. The arbitration resulted in the penalty being reduced to 30 days. The Federal Circuit upheld the 30-day suspension. This month, I delve into the details of how the action was handled and also take a look at the impact of union contract language on management’s ability to discipline.

The investigation

The initial inquiry began apparently after an e-mail containing inappropriate pictures was sent to Lee by a coworker. That resulted in a request to obtain Internet and email history from both the sender’s and Lee’s work computers.  There is nothing in the Federal Circuit decision that indicates that the supervisor, Mr. Smith, knew about her extensive use of the computer and Internet for personal business at that point. When the report was submitted it revealed the following:

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.”

Analysis of the degree of misuse

When dealing with computer misuse, it is important to get the details straight. In her response to the action, Lee noted that the initial report did not account for time that windows were left open for extensive periods of time when there was no activity on that page. Because Lee raised this, Smith requested a supplemental investigation. Here’s what happened:

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.

The first sentence is troublesome. It took a supplemental report to exclude the obviously work-related transactions? If the report was used in the proposal to substantiate misuse, it needed to clearly identify what was misuse. Perhaps there was an issue because the original purpose of the analysis was to determine if there was something inappropriate going on between Lee and her coworker and the report wasn’t geared to deal with misuse related to conducting personal business, but the advisor who was working this case should have been looking at this in preparing the proposal. Dropping the number of transactions by 10,000 or roughly 1/3 after her reply is huge.

The issue about windows being left open should also have been addressed before the proposal was issued. I have been known to leave windows open for full days!  So, any data about how long I was actually doing something on that site would be misleading without checking the activity on the page. It appears that the IT staff was able to provide this information since it is included and accounted for in the supplemental report.

The Federal Circuit decision states that original removal was reduced to a 45-day suspension because of “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.’”

I can’t help but think that another factor that led to the mitigation was that the proposal cited a significantly greater amount of misuse than could be substantiated.

Conducting the investigation

One of the charges against Lee was lack of candor. To prove lack of candor, you have to be able to show that  the person failed to disclose something that, under the circumstances, should have been disclosed to make the statement accurate and complete. Lee received written notice of the potential charges and was scheduled for the interview in advance.

The decision states: “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.” What kind of questioning is that? Was a robot doing the interview?

Lee argued in her appeal of the arbitrator’s decision that she didn’t knowingly provide incomplete answers to the interviewer because she did not understand the questions. The court described the questioning as “inartful,” but clear enough to warrant more than the one-word answers Lee gave. The FAA survived this challenge, but agencies should be able to do better. Trained investigators should be able to rephrase and elaborate further on the point of the question.

Contract Language

Participants in my Advanced Employee Relations course have heard me address this. [Editor’s note: Register now for the next Advance Employee Relations training December 1-3.]

Union contract provisions that may seem routine can come back and bite you. This case is a perfect example. The arbitrator upheld every one of the agency’s charges – misuse of government property, misuse of government time, and lack of candor. However, the arbitrator mitigated the penalty to a 30-day suspension. The union agreement required that disciplinary action be prompt.  The arbitrator said that waiting five months after the investigatory interview to initiate the action was not prompt, so a lower penalty was warranted. The Federal Circuit did not disturb that finding.

There is no information in the decision about why there was a delay.  Did it take several months to get the supplemental investigation? Was the manager out for several months during the decision phase of the action? Whatever the reason, having your legitimate 45-day suspension reduced to 30 is a high price to pay for not being prompt. [email protected].

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