### UNITED STATES OF AMERICA U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. 

### ) 

# RECEIVED MAR 2

## 6.,2012 

# HEARING DOCKET
Inthe matter of ) ) AIRZ FLYING SERVICE, INC. ) FAA DocketNo. CP10SW0010 Case No. 2009SW910051 Judge Richard C. Goodwin )



# _______________________ ) COMPLAINANT'S POST-HEARING BRIEF In accordance with Ru1e 13.231(c) ofthe Rules ofPractice in Federal Aviation Administration CivilPenalty Actions, 14 C.F.R. § 13.231(c), and in accordance withthe order of Administrative Law Judge Goodwin, Complainanthereby files his Post-Hearing Briefinthe aboveccaptioned matter.



### STATEMENT OF THE CASE The Complaint inthis matter alleges that Respondent, Air Z Flying Service, Inc. ("Air Z"), didnotreceive a verified negative resu1t onthe pre-employmentdrug test for Ritch Kovacic before hiring himto perform a safety-sensitive function. (Compl.**§II,~** 6d.) Specifically, the Complaint alleges that Respondent violated 14 C.P.R.§ 135.251(a) (now codified at 14 C.P.R. § 120.35(a)) by failing to test each employee who performed a function listed in 14 C.P.R. part 121, Appendix I (now codified at 14 C.P.R.§ 120.105) in accordance with§ V.A.1 ofthat appendix (now codified at 14 C.P.R.§ 120.109(a)). 1 (Compl.**§III,~** 1.) The functions listed in 14 C.P.R. § 120.105 are called safety-sensitive functions and include aircraft maintenance or

1 Effective July 13, 2009, the FAA's drug and alcohol regulations in 14 C.P.R. part 121, appendices I and J were recodified withno substantive changes at 14 C.P.R. part 120, subparts E and F. See Final Rule, 74 Fed. Reg. 22,649 (May 14, 2009). Although the violations alleged inthe Complaint occurred before the effective date ofthe recodification, for purposes ofclarity, subsequent references will be to 14 C.P.R. part 120.preventative maintenance. (Compl.**§II,~** 3.) No employer subject to 14 C.P.R. part 120 may hire a person to perform a safety-sensitive function unless it first conducts a pre-employment drug test and receives a verified negative result for that person. (Compl. § II,**~** 4.) Mr. Kovacic performed aircraft maintenance or preventative maintenance on one ofRespondent's aircraft on June 6, 2008. (Compl.**§II,~** 6b.) However, Respondent did not receive the verified negative result for Mr. Kovacic's pre-employment drug testuntil July 17, 2008. (Compl. 

### §**II,~** 6c.) Respondent therefore violated the regulations listed in Section III ofthe Complaint. Respondent, inits Answerto the Complaint, admitted the entirety ofSection I and the entirety ofSection II, paragraph I. Respondent has therefore admitted it is the holder ofAir Carrier Certificate No. ZFDA222T, issued under 14 C.P.R. part 119 and authorizing Respondent to conduct operations under part 135. Atthe hearing inthis matter, Respondent made three additional relevant admissions. First, Respondenthas admitted that it sent Mr. Kovacic for a preemployment drug test on May 28, 2008 because it soughtto hire himto perform a safetysensitive function for Respondent. (Joint Ex. 1.) Second, Respondent admitted thatMr. Kovacic performed safety-sensitive work on one ofits aircraft, N94EW, on June 6, 2008. 

### (Id) That N94EW is Respondent's aircraft is certain from Respondent's third admission thatN94EW was
on its part 135 operations specifications in June 2008. (/d)



### ISSUES TO BE RESOLVED I. WHETHERRESPONDENT RECEIVED THE VERIFIED NEGATIVE RESULT OF THE PRE-EMPLOYMENT DRUG TEST FORMR. KOVACIC BEFORE HIRING HIM TO PERFORM A SAFETY-SENSITIVE FUNCTION

2

### ARGUMENT I. The Record, TogetherWith Respondent's Admissions, Reduces the Issues to be Resolved In This Matter to One: Whether RespondentReceived the Verified Negative Result ofthe Pre-EmploymentDrugTest for Mr. Kovacic Before HiringHim to Perform a Safety-Sensitive Function Respondent's admissions, along withthe hearing record, establish all butone ofthe elements of 14 C.F.R. 

### § 120.109(a)(1)_2 Thatregulation states "No employer may hire any individual for a safety-sensitive function listed in § 120.105 unless the employer first conducts a pre-employmenttest and receives a verified negative drug testresult for that individual." 

### § 120.109(a)(l). An employee is defined, for purposes of 14 C.F.R. part 120, as "an individual who is hired, either directly or by contract, to perform a safety-sensitive function for an employer." 14 C.F.R. § 120.7(h). Furthermore, hire "means retaining an individual for a safetysensitive function as a paid employee, as a volunteer, orthrough barter or other form of compensation." 14 C.F.R. § 120.7G). Therefore, eventhoughMr. Rohl claimedthat Respondent
never employed Mr. Kovacic, this is nottrue under 14 C.F.R. part 120. (Tr. 204:21-205:5.) Respondent admitted Mr. Kovacic performed safety-sensitive work for it. (Joint Ex. 1.) Mr. Rohl further confirmed that Respondent wanted Mr. Kovacic to perform safety-sensitive work for Respondent and thatMr. Kovacic actually did so, including his affirmation of Mr. Kovacic's safety-sensitive work entry in Respondent's log. (Ex. D; Tr. 206:6-9; 

### see Tr. 208:15-209:9.) Itis therefore evidentthat Respondent retained Mr. Kovacic for a safetysensitive function, whether he was paid ornot and whether he was directly employed or employedby contract. Put another way, Respondent hired Mr. Kovacic to perform a safetysensitive function, making him Respondent's employee under 14 C.F.R. part 120.

2 Althoughthe Complaint charges a violation of 14 C.F.R. § 120.35(a), it also states that Respondent violatedthis section precisely because it failed to conduct a pre-employment test and employee in accordance with 14 C.F.R. § 120.109(a). Section 120.109(a)(l) is the source ofthe elements ofthe violation charged because it specifically describes the requirements for pre-employment drug testing. 3Respondent's admissions, exhibits, and testimony therefore provebeyond contentionthat, under 14 C.P.R. part 120, Respondent is an employer andthatithired Mr. Kovacic to perform a safety-sensitive function. Mr. Rohl's testimony, Respondent's admissions, and the federal Custody and Control Form ("CCF") provided in Exhibit B confirmthat Respondent sent Mr. Kovacic for a pre-employmenttest. (Tr. 206:6-16.) Therefore, the only element left in 

### § 120.109(a)(l) is whether the employer, here Respondent, "received a verified negative drug test result for the individual," here Mr. Kovacic, before hiring him. Onthis count, the Administratorhas convincingly shownby a preponderance ofthe evidence that Respondent did not receive a verified negative resultfor Mr. Kovacic before hiring him.



### II. Respondent Did Not Receive a Verified Negative Result for Mr. Kovacic Before His Hire Date A. Respondent Hired Mr. Kovacic No Later Than June 6, 2008 Respondent, though Mr. Rohl, has given three possible dates for when ithired Mr. Kovacic. One date, May 28, 2008, is the date given onExhibit C-2, Mr. Rohl's note ofJuly 23, 2008. Mr. Rohl, however, testified thatMay 28, 2008, is not the hire date. (Tr. 217:14- 218:4.) Another possible hire date is onMr. Kovacic's personnel folder, Exhibit C-9, which gives May 29,2008 as the hire date. The third possible hire date is the date ofMr. Kovacic's first performance ofa safety-sensitive function for Respondent: June 6, 2008. As Ms. Frankel testified, when there is no explicit evidence ofa hire date, the date offirst performance serves as the hire date. (Tr. 31: 15-21.) Even ifthe third and latest date, June 6, 2008, the date most favorable to Respondent, is accepted as the date ithired Mr. Kovacic, the record firmly establishes by a preponderance ofthe evidence that Respondent did nothave his verified negative result bythat date. 4B. Respondent DidNotReceive the VerifiedNegative Result Until After ItHired Mr. Kovacic A verified negative drug testresult is a negative drug testresult verified by a Medical Review Officer ("MR0") 3 (Tr. 32:5-12.) Atthe time ofComplainant's inspection, Respondent produced a document signedby anMRO at ChoicePointreporting the verified negative result for Mr. Kovacic's pre-employment drug test. (Ex. C-1; see Tr. 28:21-29:22.) That document gives a reported date ofJuly 17, 2008, long after June 6, 2008, the latestpossible hire date for Mr. Kovacic. (Ex. C-1; Tr. 31: 15-32:4.) Ms. Frankel testified that Complainant's investigation found no evidence that Respondent received Mr. Kovacic's verified negative result before July 17, 2008. (Tr. 42: 14-18.) Although Mr. Rohl testified thathe told Complainant's inspectors about supposedly receiving a verbal report ofMr. Kovacic'spre-employment drug testresult, Respondent did notprovide any evidence atthe time ofthe inspectionbeyondMr. Rohl's statements to showitreceived such a report. (Tr. 208:11-14.) Complainantrelies onthe entities it inspects to providethe records needed to demonstrate compliance. (See Tr. 70:3-6, 72:8-12 & 78:16-18.) This makes sense, as 

### itis in each entity's best interest to provide the best evidence in its favor available. IfRespondent did not provide anything atthe time ofthe investigation to prompt further inquiries by the inspectors, the fault lies withRespondent, not Complainant. Indeed, Mr. Rohl testified thatthe inspectors asked himto explain why there was no written evidence ofthe supposed verbal report. (Tr. 215:20-216:5.) He shouldhave been able to produce written evidence to supporthis story for two reasons. First, 49 C.F.R. 

### §40.167(c) requires an MRO to transmit a writtenreport ofany verified drug testresultto the employer's DesignatedEmployee Representative ("DER") withintwo days ofverification. This holds no

3 The fact that two MROs verified Mr. Kovacic's test on two different dates is immaterial to the charged violations. (Exs. C-1 & A.) The material question is whether Respondent received a verifiednegative result ofMr. Kovacic's pre-employment drugtest from any MRO before Respondenthired him. 

### 5

### matter howthe MRO reports the resultto the DER. See§ 

### 40.167(c). Second, 49 C.P.R. § 40.333(a)(4) requires Respondentto keep records ofnegative drug tests for one year. If Respondent received a verbal report ofMr. Kovacic's verified negative result on orbefore June 6, 2008, the corresponding written report had to have been sent on orbefore June 8, 2008. The date ofthe inspection, July 23, 2008, is far less than a year after June 8, 2008, the latest date the written report could have come in ifRespondent in fact received a verbal report before hiring Mr. Kovacic. Respondentthus should have had a written report to match its claimed verbal report on the date ofits inspection. Additionally, Mr. Rohl has beenthe DER for Respondent for ten years, and therefore should know that the MRO must send and he mustkeep for a year the writtenreport ofMr. Kovacic's verified negative result. (Tr. 33:2-5; see id. 

### 204:2-9.) Respondent cannot lay the blame for having no written record to support its tale ofa verbal report on either ofthe MROs who handled Mr. Kovacic's drug test. This is because neither ofthem made a verbal report ofthe verified negative result to Respondent before ithired Mr. Kovacic. In fact, the overwhelming weight ofthe reliable and credible evidence proves by a preponderance ofthe evidence that Mr. Rohl's claim ofa verbal report is untrue and no one reported Mr. Kovacic's drug test resultto Respondentbefore it hired him. C. No One Transmitted the VerifiedNegative Result ofMr. Kovacic's Testto Respondent On Or Before June 6. 2008 The record shows that three entities handled Mr. Kovacic's pre-employment drug test in
some way: Concentra, ChoicePoint, and ASTS. Ofthese three, only ASTS had the opportunity to transmit the verified negative result ofthattestto Respondent on orbefore June 6, 2008. Concentra could not and did notreport itbecause, as Mrs. Joy testified, it is against federal regulations for collection sites to receive results and Concentra neverreceived Mr. Kovacic's test result. (Tr. 105:7-21; see 

### 49 C.P.R.§ 40.165.) Furthermore, Mr. Rohl stated in his note that when 6

### he called Concentra, it told 

### him it sent the test to the MRO. (Ex. C-2.) Nothing inthat note orhis testimony indicates that Mr. 

### Rohl ever received the result from Concentra. (Ex. C-2.) Mrs. Joy's testimony is uncontroverted, and none ofthe evidence shows that Concentratold Respondent the result. Concentra can thus be safely eliminated as the source for the supposed verbal report. ChoicePoint, the source ofthe July 17, 2008 report and Respondent's usual MRO provider, also cannotbe the source ofthe supposed verbal report. (Ex. C-1; see 

### Tr. 186:13-16 & 

### 211: 18-21.) As Exhibit C-7 shows and Mrs. Newton testified, ChoicePointfirst received the test result onJuly 16, 2008. (Tr. 184:6-12.) ChoicePoint always records whenitreceives the results ofdrug tests like Mr. Kovacic's, and is required to do so byregulation, as Mrs. Newton testified. (Tr. 185: 14-20.) The July 16, 2008 receipt date is well after June 6, 2008, the latestpossible hire date for Mr. Kovacic. Respondent has notpresented any evidence or testimony to challenge this,
so ChoicePointtoo can be eliminated as the source ofthe supposed verbal report. This leaves ASTS, Concentra's default MRO provider, as the onlypossible source for any supposed verbal report. (Tr. 108:3-14 & 

### 124:5-7.) Thoughit did receive the test result before June 6, 2008, the record amply demonstrates by a preponderance ofthe reliable and credible evidence that it did not report the result to Respondent before it hired Mr. Kovacic. (Exs. C-6 & 

### B.) In order for an MRO at ASTS to report a verified drug testresult, he needs certain information. He mustknow who the DERis atthe tested individual's employer, because that is the onlyperson the result can be reported to, as Ms. Frankel, Mrs. Joy, and Mr. Jones testified and the regulations require. (49 C.P.R. § 40.165(a); Tr. 32:22-34:2, 105:7-106:10 & 

### 125:18-21.) Mr. 

### Jones, the president ofASTS, testified that ASTS did notreceive the DER information for Respondent until July 15,2008. (Tr. 128:13-129:3; 

### see also id 127:2-18 & 

### 134:7-22.) He further

7testified that ASTS did not have either the phone number or the name ofRespondent's DERon June 6, 2008. (Tr. 161:16-162:11.) Although ASTS did have some information about Respondent from the federal Custody and Control Form, namely its phone number and address, it is against DOT regulations to report results to anyone exceptthe DERand against ASTS policy to contact a company with test results unless they have the DER's name and contact information in writing. (Ex. C; Tr. 125:3-127:1.) ASTS also does notcall employers like Respondent to get DER information, and did not do so in this case. (Tr. 

### id & 146:6-14.) Furthermore, as the employer, it is Respondent's legal obligation to provide boththe name and the telephone number ofits DERto the collector. 49 C.F.R. 

### § 40.35. Mr. Jones testified that ASTS did not receive this information from the collector, Concentra, until July 15,2008,though it tried to get it from themrepeatedly as soon as it saw that it did nothave that information. (Ex. C; Tr. 124:15-125:2, 129:9-131:8; 

### see also id 127:2- 18.) Besides testifying to these policies, Mr. Jones stated that the policies used inhandling tests like Mr. Kovacic's are included inASTS's employee training manuals. (See Tr. 165:21-166:17.) Mr. Jones's letter, Exhibit C, further confirms that ASTS did notreport the verified negative result ofMr. Kovacic's test to Respondent on orbefore June 6, 2008. Inthat letter, Mr. Jones wrote, "Atno point did ASTS reportthe result to Air Z, Concentra, or any other party, verbally orwritten, until the set-up sheet was received viaFax transmission on July 15, 2008." (Ex. C.) Similarly, he wrote, "WhenASTS received company contact information, we verified the result and immediately contacted the DERfrom Air Z of [sic] the testresult." (Ex. C.) Mr. Jones also stated that that Respondent did not contact ASTS between whenASTS received the testresult and July 15, 2008. (Ex. C.) This makes sense in light ofMr. Rohl's testimony that he believed ChoicePoint was Respondent's MRO for Mr. Kovacic's test at the time he wrote his

8July 23,2008 note. (Tr. 211:18-21.) Mr. Rohl would have no reason to contact ASTS ifhe believed ChoicePoint was Respondent's MRO. Indeed, Mr. Rohllikelynever evenheard of ASTS until sometime after July 15,2008, when ASTS received the information it needed to report the verified negative result. Respondent suggests that, contrary toASTS policy and Mr. Jones's statements, ASTS contacted it on June 6, 2008 withtheverified negative result. Itleans ontwo pieces ofevidence to support this inference. First, itpointsto the fact that the verification date onthe ASTS report ofMr. Kovacic's test, Exhibit A, andthe date Mr. Kovacic first performed safety-sensitive work for Respondent are the same: June 6, 2008. Respondent asks the courtto believe that because Mr. Rohl testified he had never authorized anyone to work without a verified negative preemployment drug test, this coincidence ofdates means Mr. Rohl musthave both received a verbal report and told Mr. Kovacic he was cleared to work onthat same date. (Tr. 210: 16-19.) Yetthe fact that Mr. Rohl also testified to having issues in prior inspections withpaperwork and processes already strains confidence in the conclusion Respondent is leading to. (Tr. 211 :10-17.) Prior slip-ups, particularly related to the drug testing process, make it more likely that the present
case is another, albeit more serious, slip-up. Mr. Rohl's overall lack ofcredibility, illustrated
more fully 

### infra, further undermines Respondent's already weakinference. Second, Respondent points to the following statement in Mr. Jones's letter, Exhibit C: "The verificationprocess is not initiated until we have information that allows us to report the result." Respondent implies that ifASTS verified the testresult on June 6, 2008, as Exhibit A indicates, ASTS musthave had the contact information needed to make a verbal report to Respondent on that date as well. Atbest, however, Mr. Jones's statement only supports the mere supposition thatASTS couldhave reported Mr. Kovacic's verified negative result to Respondent.

9The most serious injury to both inferences supporting Respondent's argument, however,
comes from the irresistible weight ofthe reliable and credible evidence in the record showing that ASTS did notreport the verified negative result ofMr. Kovacic's test to Respondent before it hiredhim. To beginwith, Mr. Jones states more than once in Exhibit C that there was no communication ofthe resultto Respondent until July 15,2008, as mentioned 

### supra. Mr. Jones's multiple statements onthe specific question ofhowASTS handled Mr. Kovacic'stest and his acknowledgement that his explanation ofASTS's policy inExhibit C was not as clear as it could have been clears up any speculation about what actually happened with Mr. Kovacic's testresult. (Tr. 148:17-149:5.) Indeed, Mr. Jones gave a thorough explanation on howASTS verified the result and put the file into "limbo," rather thanreporting it, on June 6, 2008. (Tr. 132: 10-134:6.) ASTS places files in "limbo" when it does nothave the information needed to report a testresult. (Jd.) Additionally, the computer screen shot showing the file for Mr. Kovacic's test states thatthe result was verified on June 6, 2008 butnotreported4 (Ex. C-6; Tr. 136:8-137:7.) Mr. Jones makes a statement consistent with the computer screen shot in his February 9, 2011 letter to Mr. Rohl accompanying it: "The second entryindicates that onJune 6, 2008
... the result, while verified bythe MRO has notbeen reported." (Ex. B.) Ontop ofall ofMr. Jones's statements, Dr. Weber, anMRO atASTS, toldMs. Frankel that a verbal, telephonic report ofa negative result would onlybe done ifit were set up inthe systemthat way. (Ex. C-3; Tr. 50:10-22.) However, there is no evidencethat Respondent was set up this way inASTS's system. In fact, Respondent was not a client ofASTS at the time Mr. Rohl supposedlyreceived the verbal report. (See Tr. 123:1-4.) ASTS also did nothave the necessary DERcontact information for reporting drug testresults to Mr. Rohl at any time before

4 According to Mr. Jones's testimony, Exhibit C-6 reflects how the record looked on June 6, 2008, whenthe entry aboutthe verification but no reportwas entered. (Tr. 139:3-8 & 140: 1-5.) 10

### Respondent hired Mr. Kovacic. (Ex. C; Tr. 161:16-162:11.) Therefore, ASTS would not and could not, by policy and byregulation, have phoned Mr. Rohl and given him a verbal report of Mr. 

### Kovacic's verified negative result using the information it had on or before June 6, 2008. Respondent also intimates that ASTS violated 49 C.F.R. § 40.167(b) by failing to report the result ofMr. 

### Kovacic's drug test onthe same day it verified the test. (Tr. 146:15-18.) This is
a misinterpretation of§ 40.167(b). Thatregulation requires the same-day transmission of"all verifiedpositive testresults, results requiring an immediate collection under direct observation adulterated or substituted specimen results, and otherrefusals to test."§ 40.167(b). Negative tests are not mentioned at all. Therefore, the requirements of§ 40.167(b) do not apply to Mr. 

### Kovacic's verified negative testresult. As a result, § 40.167(b) also does not support any inference that ASTS must have transmitted the verified negative result onJune 6, 2008. The regulationthat does apply here is 49 C.F.R. §40.165(a), which requires that all drug test results must be reported to the DER. ASTS complied withthe appropriate regulations governing the reporting ofa verified negative result ofa pre-employment drug testwhen itpassed along the result to Respondent's DER. (See 

### Ex. C.) It is Respondent who has failed to comply withthe regulations byhiring Mr. Kovacic before receiving the verified negative result ofhis preemployment drug test. 14 C.F.R. § 120.109(a)(l). D. Mr. Rohl's Testimony Lacks Credibility Mr. Rohl's testimonythat he received a verbal report ofthe verified negative result of Mr. Kovacic'stest is the sole direct evidence ofthat claim. Yet the record inthis case gives many reasons to doubt his testimony. First, Mr. 

### Rohl's testimony at hearing was the first time throughout the entire process that Mr. Rohl put a date to his claim that he received a verbal report, and itjusthappened to be the day that Mr. Kovacic first performed for Respondent and a


### 11

### possible date for his hiring: Jnne 6, 2008. (Tr. 206:20-207: 1.) By contrast, Mr. Rohl did not give
a date for the verbal report in his July 23,2008 note, his May 10, 2011letter, orinhis deposition (Exs. C-2 & 

### C-10; Tr. 224:17-20.) Mr. 

### Rohl stated during his deposition that he did not remember the date ofthe supposed verbal report offthe top ofhis head. (Tr. 224:19-20.) Likewise, in Mr. Rohl's note ofJuly 23, 2008, he does notmention receiving a verbal negative
or a call, though the note is likelyhis bestrecollection ofevents regarding the test because it is the document closest in time to the test. (Tr. 214:3-215:1.) During cross-examination, Mr. 

### Rohl said thatthe note was only about the lack ofa written report. (Tr. 215:7-9.) However, he also said thathe was asked to write the note to explain why, when he had supposedly received a verbal report, there was no accompanying written report. (Tr. 215:20-216:5; see also 49 C.P.R. 

### §40.167(c).) Ifthe scope ofthe note is as Mr. Rohl testified, itis rather odd thathe wrote at length on everything else related to the test, including whenhe sent Mr. Kovacic for the test, his call to Concentra seeking the result, his later request for a copy ofthe result, and Mr. Kovacic's hire date, without mentioning the clearly related verbal report. Indeed, Mr. Rohl's note states that he "[d]o[es]n't remember what happened" after he called Concentra about the status ofMr. Kovacic's test, indicating he does notremember anything about the missing writtenreport, the supposed verbal report, orboth. (Ex. C-2.) When compared to the clear and consistenttestimony ofMr. Jones, there is no basis whatsoever to give any credit to Mr. Rohl's convoluted and contradictory testimony.

12

### III. The Sanction In This Case Is Consistent With Complainant's Sanction Guidance Turning from proving the violationto the sanctioninthis case, $7,700 is appropriate for the charged violationunderthe guidance inFAA Order 2150.3B. 5 Figure B-5-c(2), p. B-32, recommends a civil penalty inthe maximumrange for failure to receive the verified negative resultbefore hiring. Respondent is a Group IV commercial operator, as he has less than or equal to five aircraft and less than or equal to five pilots. Order 2150.3B, p. B-4. The maximum civil penalty range is therefore $4,400 to $11,000. 

### Id Mr. Kovacic's actual performance ofa safetysensitive function is an aggravating factor, as the regulatory requirement is to testbefore hire, not performance. Order 2150.3B,**~~** 4.a.(2) & 4.e, pp. 7-4 to 7-6. Ifone begins at the midpoint of the maximum range, $6,600, in accordance with Order 2150.3B, and increases the penalty based
onthe aggravating factor, $7,700 is an appropriate penalty under the circumstances ofthis case. Order 2150.3B,**~** 5.b, pp. 7-9 

### etseq. The FAA Decisiornnaker will uphold a requested sanction when it is reasonable under all the circumstances. 

### In reAirSolutions, LLC & 

### AirSolutions Group, Inc., FAA Order 2009-1,2009 WL 8502643, at *5 (Jan. 12, 2009). As the proposed sanction inthis case is reasonable giventhe events at issue and the sanction guidance in Order 2150.3B, it should be upheld.



### CONCLUSION The record in the case resoundingly supports Complainant's charge that Respondent failed to receive the verified negative result ofMr. Kovacic's pre-employment drug test before hiring himto perform a safety-sensitive function. Respondent had to, at the latest, receive the verified negative result on or before June 6, 2008. The undisputed evidence shows that only one

5 Complainant has applied the Order as it existed at the time ofthe violation. Ithas since undergone changes, but as they do not favor Respondent they will notbe applied. 13

### entity who handled the verified negative result could have reported it in time: ASTS. The testimony and evidence from ASTS and its president, Mr. Jones, reliably and credibly show that ASTS did not report the verified negative result to Respondent on or before that date. Respondent suggests the possibilitythat ASTS reported the verified negative result to it onJune 6, 2008, butthe clear and consistent statements from Mr. Jones as well as the lack ofcredibility and consistency inMr. Rohl's testimony argue strongly in Complainant's favor. Finally, the sanctionproposed by Complainantis clearly appropriate under the circumstances and inlight of Complainant's sanction guidance. Complainant therefore requests that his Complaint be affirmed.

Dated: March 26, 2012

14 Respectfully submitted,

# ~~ Nicholas R. Milliard Attorney Enforcement Division, AGC-300 Office ofthe ChiefCounsel Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Telephone: (202) 267-3452 Facsimile: (202) 267-5106 cole.milliard@faa.gov

### CERTIFICATE OF SERVICE I hereby certify that I served byU.S. Certified Mail, return receipt requested, a copy of the preceding Complainant's Post-Hearing Briefin

### In the Matter of AirZ Flying Service, Inc, FAA DocketNo. CP10SW0010, Case No. 2009SW910051, addressed to: Mr. Peter J. Comodeca, Esq. 1405 East Sixth Street Cleveland, OH 44114-1607
In addition, I hereby certify that I served byU.S. CertifiedMail, return receipt requested,
a copy ofthe same, addressed to:

to: The Honorable Richard C. Goodwin U.S. Department ofTransportation Office ofHearings, M-20 1200 NewJersey Avenue, S.E. Washington, D.C. 20590 I also hereby certify that I served byhand delivery, the original and one copy ofthe same,
ATTN: HearingDocket Clerk, AGC-430 Federal Aviation Administration 600 Independence Ave., S.W. Wilbur Wright Building-Suite 2W1000 Washington, D.C. 20591

Date:**i\!\,~n** 

### l-. 

### 2.C, )( l 

## 2. _.;'

15