465 California Street Suite 210 

## •
San Francisco California 94104 

## • (415) 421-2500 Fax (415) 421-2560

www.avialex.com law@avialex.com 

### Michael 

### L. Dworkin and Associates Law Offices



### FEDEX: FederalAviationAdministration Attn: Hearing Docket Clerk, AGC-430 WilburWright Building -Suite 2W1000 800 Independence Avenue SW Washington, DC 20591
RE: Belt Makers, Inc. FAA Case No. 2011WP910400 FDMS: FAA-2013-0049



### Dear Hearing Docket Clerk: 

# RECEIVED

June 5, 2013 

## JUN -7 2013 

# HEARING DOCKET

1.· ·•



### Enclosed herewithfor filing is the following document: Belt Makers, Inc's Objections and Responses to Complainant's Discovery Request.

cc: The Honorable Richard C. 

### Goodwin Administrative LawJudge Lisa Toscano, Esq. FAA,AWP-7 ·:..._-- 

### Verytruly

### yours,

# a'/1~ Caitlin M. Miller Legal AssistantMICHAEL L. DWORKIN#64047 MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 San Francisco, California94104 Telephone: (415) 421-02500 Facsimile: (415) 421-2560 Email: law@avialex.com Attorneys for BELT MAKERS, INC. 

# RECEIVED JUN**~** 

## 72013 

## HEARING DOCKET

UNITED STATES OFAMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
In the Matter of:

BELTMAKERS, INC. FAA CASENO. 2011WP910400 FDMS: FAA-2013-0049



### BELT MAKERS, INC.'S OBJECTIONS AND RESPONSES TO COMPLAINANT'S DISCOVERY REQUEST Judge: The Honorable Richard C. Goodwin

BELTMAKERS, INC. (hereinafter referred to as "BELT MAKERS" or "Respondent"), by and through its undersigned counsel, objects and responds to Complainant's FirstRequest for Discovery, dated May 24, 2013 andreceived May 28, 2013.



### INTRODUCTION AND GENERAL OBJECTIONS This matter arises out ofa September 16, 2011 inspection at BELTMAKER's facilities ofits Antidrug Alcohol Misuse Prevention Program ("AAMPP:") by representatives ofthe FAA's Drug Abatement Division.FAA's Drug AbatementDivision. Complainant alleges that the inspectionrevealed that BELTMAKERS had employed three persons in safety-sensitive functions whenthey were not inthe random pool for drug and alcohol testing betweenthe dates they were hired (May 16, 2011 for Maria Sanchez; May 23, 201 for SamanthaVillalobos; and February 2, 2011for Ernesto Mendoza) and September 20, 2011, whenthey were eventually placed inthe random pool. Complainant further determined that BELT MAKERS failed to retain documentation i) oftraining on drug use, and ii) that ithad provided educational materials explaining alcohol testing requirements and its policies and procedures withrespect to meeting those requirements for these three employees. With the exception ofthe allegations concerning retention ofdocumentation, BELT MAKERS does not refute these allegations and freely admitted its mistake during Complainant's initial investigation almost two years ago. During thependency ofthis action, BELTMAKERS has continuedto fully admit and take full responsibility for them. Thatbeing the case, what other information could Complainantpossibly need that would require its propounding this overly broad and unduly burdensome discovery? Inasmuch as the seminal issue in this case is sanction, Complainant's discovery is excessive, compound, complex, overly broad and unduly burdensome, transcending the boundaries ofreasonable discovery and seeking information that is already within Complainant's possession, knowledge, care, custody and control. Complainant's discoveryappears to have beenmotivated less by a genuine need for relevant and probative information, and more to drive up the costs and burdens ofBELT

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 2MAKERS' defense ofthis action to bludgeon and badger BELT MAKERS into settlement. As for the contested factual allegations ofthe Complaint, specifically thatBELT MAKERS failed to provide documentation oftraining givento supervisor Leonard Byrd, specifically, i) EAP initial training onreasonable cause, and ii) training for the purpose of qualifying him to make a determination concerning the need for alcohol testing based on reasonable suspicion, and AAMPP training to the employees Sanchez, Villalobos and Mendoza, Complainant's allegations are not supportedby its own evidentiary file which clearly shows that training was givento these persons and thatthey signed for it. During the September 16, 2011 inspection, Complainant's Special Agents performed whatthey consideredto be a comprehensive review ofBELTMAKERS' AAMPP. They asked for no assistance from BELT MAKERS otherthan showing the FAAwhere the records were kept. Complainant did not ask for assistance infinding training records, nor did they advise that could not find them until several months later. When Complainant eventually advised BELT MAKERS that could not find the records during the September 16, 2011 inspection, BELT MAKERS immediately, and without any difficulty, found the records and furnished them. What makes these allegations even more outlandish is the existence ofthe exact documents Complainant alleges were unavailable are contained inin Complainant's EnforcementInvestigative Report (See lOP# 3). Complainant's allegations as to training records are without merit and are based on Complainant's own deficient inspection and its ignoring informationthat is contained in its EIR and in no way indicative ofBELT MAKER's record retention policy orprocedures. All such

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 3records were were available on September 16, 2011. BELT MAKERS's investigation is ongoing and continuing and BELT MAKERS reserves the right to supplement or amend these Responses as its investigationproceeds up throughthe time ofhearing. Accordingly, these Responses should be consideredtentative at best. Finally, BELTMAKERS, inits Answer and Affirmative Defenses ("Answer"), has asserted numerous affirmative defenses and reserves the right to assert additionally affirmative defenses as they arise. Notwithstanding any response or admission contained herein, BELT MAKERS reasserts each and every affirmative defense contained in its Answer, which BELT MAKERS incorporates herein by this reference as iffully set forth herein.

RESPONSES TO REQUESTS FORADMISSIONS The objections set forth above are hereby incorporated herein intheir entirety as iffully setforthherein. Notwithstanding these objections, BELT MAKERS, based on its information and belief, responds to the Requests for Admissions as follows:

RESPONSE TO REQUESTS FORADMISSIONS NOS. 1, 2, 3, 4, and 5: BELT MAKERS does notrefute these allegations and freely admitted so during the Complainant's initial investigation almost two years ago and again in its Answer to Complaint filed on April 19, 2013. BELTMAKERS has taken total responsibility for them and has initiated appropriate corrective actions. What else could Complainant possibly need? Inasmuch as the seminal issue is sanction, Complainant's discovery is excessive,

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page4compound, complex, overly broad and unduly burdensome, transcending the boundaries of reasonable discovery and seeking informationthat is already within Complainant's possession, knowledge, care, custody and control. Complainant's discovery appears to have been motivated less by a genuine need for relevant and probative information, and more to drive up the costs and burdens ofBELT MAKER's defense ofthis action to bludgeonBELT MAKER into settlement. BELTMAKERS objects to all discovery requests pertaining to the above as unduly burdensome, unneeded and unwarranted, and propounded for the sole purpose ofbadgering BEL TMAKERS into settling or withdrawing its appeal.
REQUEST FORADMISSION NO.6: At all times relevantto the Complaint (the Final Notice ofProposed Civil Penalty), during the September 16, 2011, inspectionreferenced in ParagraphNo.5 ofthe Complaint, Respondentwas unable to provide documentation ofEAP initial training on reasonable cause givento Leonard Byrd, a supervisor. RESPONSE: Denied. During the September 16, 2011 inspection, Complainant performed a comprehensive review ofBELT MAKER's AAMPP. Complainant did not ask for assistance infinding the records for Mr. Byrd, nor did they advise that could not find the records for Mr. Byrduntil several months later.

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 5When Complainant eventually advised BELTMAKERS that it did not find therecords
onthe September 16,2011, BELTMAKERS immediately, and without any difficulty, found said records and furnished themto the FAA. Whatmakes these allegations even more outlandish is the existence ofthe exact documents Complainant alleges were unavailable, in Complainant's Enforcement Investigative Report lOP# 3. Complainant's allegations as to Mr. Byrd are without merit and are based on Complainant's own deficient inspection and inno way indicative ofBELTMAKER's record retentionpolicy orprocedures. Mr. Byrd's records were available on September 16, 2011.
REQUEST FORADMISSION NO. 7: At all times relevant to the Complaint (the Final Notice ofProposed Civil Penalty), during the September 16, 2011, inspectionreferenced in ParagraphNo.5 ofthe Complaint, Respondent was unable to provide documentation oftraining provided to Leonard Byrd, a supervisor, for the purpose ofqualifying him to make a determination concerning the need for alcohol testing based onreasonable suspicion. RESPONSE: Denied. During the September 16, 2011 inspection, Complainantperformed a comprehensive review ofBELT MAKER's AAMPP. Complainant did not ask for assistance infinding the records for Mr. Byrd, nor did they advise that couldnot find the records for Mr. Byrd until

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 6several months later. When Complainant eventually advised BELT MAKERS that it did not find the records
onthe September 16,2011, BELT MAKERS immediately, and without any difficulty, found saidrecords and furnished themto the FAA. Whatmakes these allegations even more outlandish is the existence ofthe exact documents Complainant alleges were unavailable, in Complainant's EnforcementInvestigative Report lOP# 3. Complainant's allegations as to Mr. Byrd are without merit and are based on Complainant's own deficient inspection and in no way indicative ofBELTMAKER's record retentionpolicy orprocedures. Mr. Byrd's records were available on September 16, 2011.
REQUEST FORADMISSION NO. 7: At all times relevant to the Complaint (the Final Notice ofProposed Civil Penalty), during the September 16, 2011, inspectionreferenced in ParagraphNo.5 ofthe Complaint, Respondent was unable to provide documentation that ithad providedthe educational materials referenced inparagraphno. 29 ofthe Complaintto Maria Sanchez
..., SamanthaVillalobos
... and Emesto Mendoza
.... RESPONSE: Denied. During the September 16, 2011 inspection, Complainantperformed a comprehensive review ofBELTMAKER's AAMPP. Complainant did not ask for assistance in finding the

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 7records for these employees, nor did they advise that could not find the records until several months later. When Complainant eventually advised BELTMAKERS that it did not find the records
onthe September 16, 2011, BELT MAKERS immediately, and without any difficulty, found saidrecords and furnished themto the FAA. What makes these allegations even more outlandish is the existence ofthe exact documents Complainant alleges were unavailable, in Complainant's Enforcement Investigative Report lOP# 3. Complainant's allegations as to the training givento these three employees are without merit and are based on Complainant's own deficient inspection and inno way indicative of BELTMAKER's record retentionpolicy orprocedures. These records were available on September 16, 2011.


### RESPONSES TO INTERROGATORIES The objections set forth above are hereby incorporated herein intheir entirety as iffully set forth herein. Notwithstanding these objections, BELT MAKERS, based onits information and belief, responds to the Interrogatories as follows:


### INTERROGATORY NO. 1: For each ofthe above requests for admission thatyou do not admit, explainwhat specific facts or contentions ineach statementyoubelieve are nottrue, state all facts that support

FDMS: FAA-2013-0049 BELT MAKERS's Objections and Responses to Complainant's Discovery Page 8your beliefs inthis regard, andproduce all documents that supportthese beliefs. 

### RESPONSE TO INTERROGATORY NO.1: Regarding Request For Admissions Nos. 6, 7 and 8, during the September 16, 2011 inspection, Complainant performed a comprehensive review ofBELTMAKER's Antidrug AAMPP. Complainant did not ask for assistance in finding records, nor did they advise that could not find the records until several months later When Complainant eventually advised BELTMAKERS thatthey did not find the records
on the September 16, 2011, BELTMAKERS immediately, and without any difficulty, found said records. Whatmakes these allegations evenmore outlandish is the existence ofthe exact documents Complainant alleges were unavailable, in Complainant's Enforcement Investigative Report lOP# 3. Complainant's allegations as to Mr. Byrd and the three named employees are without merit and are based on Complainant's own deficient inspection and inno way indicative of BELTMAKER'srecord retention policy orprocedures. These records records were available on September 16, 2011.



### INTERROGATORY NO.2: Identify eachperson whomyou intendto call as a witness at the hearing inthis matter and for each suchwitness, provide a summary ofthe expectedtestimony.

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 9

### RESPONSE TO INTERROGATORY NO.2 BELTMAKERS has notyet decided who will be called to testify and discovery is currently ongoing. Without waiving said objections, Respondent currently intends to call the following persons to testify athearing: 1) Tim Dunlop, President ofBELTMAKERS; 2) Leonard Byrd; 3) Maria Sanchez; 4) SamanthaVillalobos; and 5) Ernesto Mendoza. BELTMAKERS further reserves the rightto call as its witnesses any persons identified in Complainant's EnforcementInvestigative Report (EIR), any persons now orhereinafter identified by Complainant as its witnesses and any persons who may be calledto testify by Complainant at deposition or athearing in this matter. The substance ofthe testimony ofMr. Dunlop shouldbe readily apparentto Complainant who has already provided written responses to all ofComplainant's communications regarding alleged compliance issues. BELT MAKERS incorporates and adopts as iffully setforth herein the previous communications. This testimony will include, butnotbe limitedto the purpose and preparation BELTMAKERS's AAMPP; the FAAbase inspection during whichthe alleged discrepancies were discovered; BELT MAKERS's response to the FAA findings; BELT MAKERS's immediate and comprehensive corrective actions, including butnot limited to revision ofitpersonnel and hiring practices, the AAMPP, its Antidrug Alcohol Misuse

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 10Prevention Training Program, and additional training for all personnel involved. Mr. Byrd, Ms. Sanchez, Ms. Villalobos and 

### Mr. Mendozawill testify as to the AAMPP training that they were furnished by BELTMAKERS and the documentation oftheir training. BELT MAKERS may also utilize personnel from the TAG/ AMS Consortium, whichhas developed the AAMPP, the training program and the documentation for suchtraining. Investigation and discovery are ongoing and continuing, and BELT MAKERS reserves the right to amend and/or supplementthese responses up through the date ofhearing. BELT MAKERS further reserves the right to utilize other witnesses, not identified herein, for impeachmentpurposes.

INTERROGATORY NO.3: For eachperson identified in response to Interrogatory No.2, produce a copy ofeach and every statement made by that person in which the facts and circumstances ofmatters at issue in this case are referenced or discussed. RESPONSE TO INTERROGATORY NO.3: BELT MAKERS objects to this Request to the extentthat it seeks documents covered by the attorney-clientprivilege, protectedby the work-product doctrine or which are already in Complainant's possession, care, custody or control, and/or whichhave beenheretofore produced by BELT MAKERS and provided to Complainant. To the extent that it has not already done so, BELT MAKERS will provide copies ofall documents, including statements, it intends to submit at hearing. Investigation and discovery are

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 11ongoing and continuing, and BELT MAKERS reserves the rightto amend and/or supplement these responses up through the date ofhearing. Finally, BELTMAKERS reserves the right to utilize athearing any document not identified in these Objections and Responses to Request for Production which may be utilized by Complainant and/or for purposes ofimpeachment.

INTERROGATORY NO.4: Do youintend to present any expert witness testimony at the hearing ofthis matter? Ifso, thenprovidea synopsis ofeach expert witness' testimony, state the grounds for each expert opinion, and produce curriculum vitae for each expertwitness. RESPONSE TO INTERROGATORY NO. 4: BELT MAKERS has not retained any experts in this case and does not, atthis time, intend to call any expert witnesses. Notwithstanding the foregoing, BELT MAKERS reserves the right to seek expert testimony from any persons identified in Complainant's EIR, any persons now or hereinafter identified by Complainant as its witnesses and/or experts and any persons who may be called to testify by Complainant in this matter and/or any person who may offer expert testimony on Complainant's behalf. Investigation and discovery are ongoing and continuing, and BELT MAKERS reserves the right to amend and/or supplementthese responses up throughthe date ofhearing.

FDMS: FAA-2013-0049 BELT MAKERS's Objections and Responses to Complainant's Discovery Page 12INTERROGATORY NO. 5: Do you contend that Belt Makers, lacks the ability to pay the proposed civil penalty Ifso, then state every fact upon whichyou intend to rely atthe hearing in support ofthis contention, and produce a copy ofeach and every document you intend to introduce at the hearing in this matter in support ofthis contention. RESPONSE TO INTERROGATORY NO. 5: BELT MAKERS is reviewing its financials and intends to amend this answer at a later time. However, until suchtime as an appropriate protective order is issuedprecluding the public availability, release or dissemination ofany such information, BELTMAKERS objects to this request.

INTERROGATORY NO.6: To the extent not encompassed inyour response to any ofthe foregoing items, identify and produce all documents upon which you expectto rely at the hearing or introduce as evidence in support ofyour position atthe hearing in this matter. RESPONSE TO INTERROGATORYNO.6: BELT MAKERS's provided Complainant with documentation evidencing and substantiating BELT MAKERS' corrective and responsive actions. BELT MAKERS intends to utilize all such documents as exhibits at hearing. In the interests ofeconomy, they are not being reduplicated as they are already in Complainant'spossession, care, custody or control.

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 13BELTMAKERS reserves the right to utilize additional documents that may not exist as ofthe date ofthese responses but as they may be developed in the future to evidence BELTMAKERS' ongoing corrective actions. Atthis moment, BELT MAKERS does not anticipate introducing any exhibits otherthan those documents that are already in Complainant's possession, care, custody or control or have already beenprovided by BELT MAKERS to Complainant during or incident to the investigation or which have been identified above. However, BELT MAKERS reserves the right to introduce any document referenced inthe EIR, the AAMPP, Training Manuals, Personnel Manuals and other then-current Company policies and procedures and any subsequently discovered exhibits. BELT MAKERS also reserves the right to utilize any documents that have been orwill be produced by Complainant or which may be utilized by Complainant at hearing. BELT MAKERS reserves the rightto amend and/or supplement these responses up through the date ofhearing and further reserves the right to utilize other documents, not previously identified, for impeachmentpurposes.

INTERROGATORY NO.7: Describe with specificity and in detail any and all affirmative defenses you intend to assert at the DOT administrative hearing in this matter. RESPONSE TO INTERROGATORY NO.7: BELTMAKERS objects to Interrogatory No.7, as each ofthe Denials and Affirmative Defenses contained in BELT MAKERS's Answer clearly speak for themselves.

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 14Additionally, BELT MAKERS reserves the right to assert additional affirmative defenses
as they arise. Notwithstanding any response or admission contained herein, BELTMAKERS reasserts each and every affirmative defense contained in its Answer, which BELTMAKERS incorporates herein by this reference as iffully set forth herein.

INTERROGATORY NO. 8: Describe with specificity and in detail all ofthe facts and arguments which Respondent anticipates presenting in the course ofthe hearing in this matterpertaining to mitigation ofthe sanction sought by Complainant in this case. RESPONSE TO INTERROGATORY NO.8: BELT MAKERS objects to Interrogatory No.8, as each ofthe Denials and Affirmative Defenses contained in BELT MAKERS's Answer clearly speak for themselves. See Complainant's own Sanction Guidance Table contained in Order 2150.3B, under which the penalty sought by Complainant in this case is clearly excessive and unreasonable, particularly for
a small business concern such as BELT MAKERS. Additionally, BELT MAKERS reserves the right to assert additional affirmative defenses
as they arise. Notwithstanding any response or admission contained herein, BELTMAKERS reasserts each and every affirmative defense contained inits Answer, which BELTMAKERS incorporates hereinby this reference as iffully set forth herein.

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 15INTERROGATORY NO. 9: State all facts upon which you base the contention asserted in your First Affirmative Defense ofyourAnswer. RESPONSE TO INTERROGATORY NO. 9: BELT MAKERS objects to Interrogatory No. 9, as the FirstAffirmative Defense clearly speaks for itself.

INTERROGATORY NO. 10: State all facts upon which you base the contention asserted inyour Second Affirmative Defense ofyour Answer. RESPONSE TO INTERROGATORY NO. 10: BELT MAKERS objects to Interrogatory No. 10, as the Second Affirmative Defense clearly speaks for itself.

INTERROGATORY NO. 11: State all facts upon whichyou base the contention asserted in your Third Affirmative Defense ofyour Answer. RESPONSE TO INTERROGATORY NO. 11: BELT MAKERS objects to Interrogatory No. 11, as the Third Affirmative Defense clearly speaks for itself.

FDMS: FAA-2013-0049 BELT MAKERS's Objections and Responses to Complainant's Discovery Page 16INTERROGATORY NO. 12: State all facts upon which you base the contention asserted in your Fourth Affirmative Defense ofyour Answer. RESPONSE TO INTERROGATORY NO. 12: BELT MAKERS objects to Interrogatory No. 12, as the Fourth Affirmative Defense clearly speaks for itself.

INTERROGATORY NO. 13: State all facts upon which you base the contention asserted in your Fifth Affirmative Defense ofyour Answer. RESPONSE TO INTERROGATORY NO. 13: BELT MAKERS objects to Interrogatory No. 13, as the Fifth Affirmative Defense clearly speaks for itself.

INTERROGATORY NO. 14: State all facts upon which youbase the contention asserted inyour Sixth Affirmative Defense ofyourAnswer. RESPONSE TO INTERROGATORY NO. 14: BELT MAKERS objects to Interrogatory No. 14, as the Sixth Affirmative Defense clearly speaks for itself. See Order 2150.3B.

FDMS: FAA-2013-0049 BELT MAKERS's Objections and Responses to Complainant's Discovery Page 17INTERROGATORY NO. 15: State all facts upon which you base the contention asserted inyour Seventh Affirmative Defense ofyourAnswer. RESPONSE TO INTERROGATORY NO. 15: BELTMAKERS objects to Interrogatory No. 15, as the Seventh Affirmative Defense clearly speaks for itself.

INTERROGATORY NO. 16: State all facts upon which youbase the contention asserted inyour Eighth Affirmative Defense ofyourAnswer. RESPONSE TO INTERROGATORY NO. 16: BELTMAKERS objects to Interrogatory No. 16, as the Eight Affirmative Defense clearly speaks for itself. Additionally, at least one FAA Special Agent contacted BELTMAKERS' customers and end users, not in connection with any legitimate investigative function, but for the purpose ofharming business relationships and causing BEL TMAKERS substantial loss ofbusiness and causing hardship for BELTMAKERS and its owner, management and employees.

### ~ DATED this 

## u day ofJune, 2013.

FDMS: FAA-2013-0049 BELT MAKERS's Objections and Responses to Complainant's Discovery Page 18...**·~**

CERTIFICATE OF SERVICE The undersigned hereby certifies that on this fi!!aay ofJune, 2013, a true and correct copy ofthe foregoing BELT MAKERS, INC.'S OBJECTIONS AND RESPONSES TO COMPLAINANT'S DISCOVERY was served as follows: The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 Department ofTransportation 1200 NewJersey Avenue, S.W. Washington, DC 20590 FAX: 1-202-366-7536 {FAXandFEDEX} Federal Aviation Administration Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000 800 Independence Avenue SW Washington, DC 20591 {FEDEX) LisaToscano, Esq. Federal Aviation Administration Office ofthe Regional Counsel Western-Pacific Region, AWP- 7 15000 Aviation Boulevard Lawndale, CA 90261 FAX: 1-310-725-6816 {FAXandFEDEX}

Caitlin Miller

FDMS: FAA-2013-0049 BELTMAKERS's Objections and Responses to Complainant's Discovery Page 19