By Barbara Haga, September 16, 2020
Sometimes you pick up a case that is just chock full of good information. That happened when the case of Lee v. Federal Aviation Administration, No. 2019 -1790 (Fed. Cir. July 29, 2020) appeared in a recent weekly MSPB case report. (OK, this is the second column in a row using decisions that were included in the case report, so maybe you should subscribe. Just click here and sign up.) This decision covers lots of my favorite topics – technology misuse, lack of candor, potential for rehabilitation, and the impact of contract language on management’s ability to discipline.
Ms. Lee was a civil engineer for the FAA. In April 2017, when the series of events that led to the discipline began, she had worked for the FAA for five years. She received an e-mail containing inappropriate pictures from a co-worker. Somehow management learned of this, and, as a result, Lee’s second-line manager, John Smith, requested that the agency’s investigations unit pull the Internet and email history from the sender’s and Lee’s work computers. Unfortunately, when the results came in there was a lot more going on besides that inappropriate e-mail.
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.”
I am guessing that most readers are familiar with Amazon and eBay. In their words, Etsy is a “global marketplace for unique and creative goods.” It is a place where crafters can sell goods and people who supply crafters offer items. For a fee, you can advertise goods on their site, conduct online transactions, and sell to individuals anywhere.
I checked as I was preparing this column, but “BoosTinyBits” isn’t registered as a seller anymore, so I can’t tell you what was for sale at “BoosTinyBits.”
Lee was provided a notice that she was to report for an investigatory interview regarding potential discipline about allegations of “Misuse/Abuse of Government Computer/Internet/Email, Misuse/Abuse of Government Time Sending/Receiving Inappropriate Jokes/Pictures of a Sexual Nature, and Failure to Report.”
Her union representative accompanied her. From the decision, we learn that Lee did not know at the time of the interview that the forensic report had been delivered. When asked if she had used her government computer “for unofficial personal reasons while on duty for any reason,” she answered “no.” She answered “no,” “I don’t know,” and “I don’t understand the question” to several different questions regarding making purchases from eBay and Amazon while on government time and if she was conducting personal business on government time.
We cannot tell from the decision what sort of advice the union official was giving. Maybe Lee convinced the union rep that this was a set up and she never did any of these things. Perhaps the union rep was called at the last minute to participate in a Weingarten meeting and had no opportunity to consult with Lee prior to the meeting. Maybe the union rep told Lee the best option might be to confess and beg for mercy, but she did not take that advice.
I do understand that sometimes people have trouble acknowledging when they have transgressed, but when caught red-handed, I would think the individual would have been more forthcoming than what happened here. Could anyone who is a college graduate and trained engineer working in the Federal government in today’s world not realize that the IT folks would be able to track the sites she had visited and how many times? Given the thousands of transactions it certainly was not anything that could be characterized as incidental or minimal personal use. The same failure to acknowledge misconduct happened in last month’s column.
Potential for Rehabilitation
The value of the Douglas factor on potential for rehabilitation is often lost on employees who have engaged in bad behavior, and their representatives. When you watch Law and Order, the operative response by the person being questioned may be to deny everything or to refuse to answer, but that is a vastly different world with hugely different rules. Unfortunately, I think this perspective has spilled over into our administrative actions. Regrettably, it may be short-sighted.
Potential for rehabilitation means that there is some sign that the person learned from the mistake(s) and would not repeat the behavior. It is a big deal. I was not being facetious about admitting the misconduct and begging for mercy. I have seen it work. The employee has done something serious and is caught. He or she says to the manager, “I did something really awful and I don’t deserve anything from you. But, if you will give me a chance, I will prove to you I can change.” It works. In my experience, managers do not jump out of bed in the morning saying: “Oh, boy, I’m going to fire someone today.” When faced with adverse actions, managers may be thinking “I don’t want to have to make a decision that takes away someone’s livelihood.” The manager knows that a firing means a vacancy. Filling jobs is not an easy thing. It takes a long time, a lot of work to interview and check references, and, for some, it takes a long time to get investigations done so that the individual can start work. A lot of time, money, and energy is invested to get folks up to speed to do the job. If the manager is convinced that this person is salvageable, he or she may take the individual up on that offer. Maybe a last chance will be offered. If the employee can change, it is a win-win.
I was a manager for most of my career. If one of my employees came to me and said, “I did something terrible and I need to tell you what happened,” that would get a different kind of response than if I found out some other way. It is definitely something to think about. We will spend more time on the potential for rehabilitation and the Lee decision next time. Haga@FELTG.com