UNITED STATES OF AMERICA 

# R.ECEIVED U. S. DEPARTMENT OF TRANSPORTATION
.

FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. ) 

## MAY**~** 

# 9.2012 

# HEARING DOCKET
Inthe matter of ) 

### ) AIR Z FLYING SERVICE, INC. ) FAADocketNo. CPlOSWOOlO CaseNo. 2009SW910051 Judge Richard C. Goodwin 

### )
COMPLAINANT'S REPLY TO RESPONDENT'S POST-HEARING BRIEF In accordance with Rn1e 13.23l(c) ofthe Rn1es ofPractice in Federal Aviation Administration Civil Penalty Actions, 14 C.F.R. § 13.231(c), and in accordance with the order of Administrative LawJudge Goodwin, Complainanthereby files his Reply to Respondent's PostHearing Briefinthe above-captionedmatter.

ARGUMENT 

### I. Respondent's Arguments Relying On Ms. Frankel's Testimony Are Mischaracterizations or are Irrelevant to the Issues to be Decided Complainanthas proven its case with a preponderance ofthe reliable and credible evidence, while Respondent's arguments to the contrary are not supported bythe record. A significantpart ofRespondent's argument inhis briefrelies onhis characterization of Ms. Frankel's testimony. (See generally Resp't Br. 2-4.) All ofhis arguments inthis vein, however, are either irrelevant, unfounded, or both. Respondent is wrong in stating that Ms. Frankel was not present at Respondent's inspection. She testified that she went out on Respondent's inspection as a team member and management representative. (Tr. 86:16-87:8.) In that capacity, she observed and provided support ifnecessary. (Id) She was not involved intheprimary review ofthe evidence collected; the inspectors she supervised did this. (Tr. 87:9-16.) Furthermore, Ms. Frankel did not see the evidence collected atthe inspection again until she performedher final review and approved the case for referral to Complainant's legal counsel. (Tr. 87: 17-88: 16.) Thus, any discovery conducted by Complainantwould have occurred after her review ofthe file. She may have never seen items received inresponse to Complainant's discovery requests, as well as other items generated after the file wentto the legal counsel's office. For example, Exhibits C and C-7 are addressed to Karen Leamon, a different employee of Complainant. Ms. Frankel's testimony is therefore not indicative ofsloppiness or aninadequate investigation. Rather, it simply illustrates that she was not closely involved with every aspect of this case, particularlythose that developed after she transferred the case to the legal counsel's office. This is a wholly unremarkable fact for any sort ofgovernment agency that does investigations orinspections. Respondent's speculation about why Complainant presented the witnesses it did at the hearing has no bearing on whether Respondent failed to receive Mr. Kovacic's verified negative testresult on or before the date ithired him. (Resp't Br. 3.) Ms. Frankel testified aboutthe regulations itis herjob to ensure compliance with, as well as the meaning ofimportant documents in light ofthose regulations. Ms. Frankel, as a supervisor reviewing the inspection in this case, was qualified to describe how certain commontypes ofdocuments (like drug result reports, Exhibits A & C-1 inthis case) prove a violation ofdrug testing regulations. In addition, Respondent's speculation about Ms. Frankel's ties to Cleveland are not in evidence and are not supported by anything in the record. (Resp't Br. 3.) They should therefore be given no credence. Respondentmakes much ofthe fact that Ms. Frankel believed, atthe time ofthe inspection, that ChoicePointwas Respondent's MRO. (Resp't Br. 3-4.) Respondent fails to note

2that Mrs. Joy and Mr. Rohl shared this belief. (Tr. 186:13-16 & 211 :18-21.) He also fails to note why it was reasonable for Ms. Frankel to believe, along with Mrs. Joy and Mr. Rohl, that ChoicePoint was Respondent's MRO. The only written record ofthe verified negative result of Mr. Kovacic's drug testprovidedto Complainant atthe inspection was the ChoicePoint result report, Exhibit C-1. As Ms. Frankel testified, Complainant relied onthe information provided by Respondent to determine who its MRO was. (Tr. 78:6-18.) Itwas only long after the inspection that Complainantreceived Exhibits C and C-7. These exhibits explain why there were MROs at two companies (ASTS and ChoicePoint) involved inthis case, and how Mr. Kovacic's test results came to each ofthem. Exhibit C-7 also sheds light onwhy the CCF (Custody and Control Form) received date, verification date, and reported date onExhibit C-1 are all the same. Exhibit C-7 lays out how Choice Point receivedthe CCF, verified the result, and reported it on all onJuly 17,2008. (Ex. C-7.) Ms. Frankel testified that each ofthese events occurring on the same date

was a plausible scenario. (See Tr. 74:5-8.) Complainanttherefore knew quite well why Exhibit C-1 was dated as it was. Contrary to Respondent's assertions, Complainant did not perform a shoddy investigation or overlookthe ASTS report, Exhibit A. (Resp't Br. 3-4.) Indeed, the documentary evidence and testimony resulting from the inspection inthis case constitutes a preponderance ofthe evidence in support ofthe regulatory violations alleged in the complaint. Further, Exhibits C and C-7 help illustrate that Respondent did not receive Mr. Kovacic's test results on orbefore June 6, 2008. This date is crucial because it is the latest ofthree possible dates ofhire for Mr. Kovacic. 1 One date, May 28, 2008, is the date given onExhibit C-2, Mr. Rohl's note ofJuly 23, 2008. Mr. Rohl, however, testifiedthat May 28, 2008, is not the hire date. (Tr. 217:14-218:4.) The second 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 of

1 The issue ofthe three possible hiring dates is explained more fully on page four ofComplainant's initialbrief. 3Mr. Kovacic's first performance ofa safety-sensitive function for Respondent: June 6, 2008. Respondent correctly notes from Ms. Frankel's testimony that the date offrrstperformance may beused whenthere is no explicit evidence ofa hire date. (Tr. 31: 15-21.) Even ifthe court accepts June 6, 2008 as the date ofhire for Mr. Kovacic, which would favor Respondent, Respondent did not receive the verified negative result ofhis pre-employment drug test on or before that date. (Compl. Br. 4.) Exhibit C-7 shows how ChoicePoint did notreceive the test result until July 16, 2008, and Respondent has not challenged Complainant's argument that consequently ChoicePoint could not have timely provided the test result to Respondent. Exhibit C states very plainly that ASTS did not contact Respondent with Mr. Kovacic's test resultuntil July 15, 2008. Mr. Jones's statements inExhibit C do not establishthat ASTS reported the testresult to Respondent any sooner thanthat, as shown more fully below.



### II. The Statements Cited By Respondent As Proving It 

### Received the Test Result On June 6, 2008 Actually Prove That It

### Did Not Receive Them On Or Before That Day Respondent attempts to argue that Mr. Jones's statement inExhibit C that the "verificationprocess is not initiated until we have the information that allows us to report the result" proves that ASTS reported Mr. Kovacic's verified negative test result to Respondent on June 6, 2008. (Resp'tBr. 4-5.) Yet he seriously misconstrues and takes out ofcontext Mr. Jones's statements in Exhibit C and elsewhere.2 First, Respondent ignores the fact that Mr. Jones unequivocally states inExhibit C: "Atno point did ASTS reportthe result [of Mr. Kovacic's test] to Air Z [i.e. Respondent], Concentra or any otherparty, verbally or written, until the set-up sheet was received via Fax transmission on July 15, 2008. ASTS thenverified the result and forwarded the result to the DER at Air Z." (Ex. Cat 3.) InExhibit B, Mr. Jones again

2 See also Complainant's initial briefat pages nine and ten for a discussion ofwhyMr. Jones's statement does not support the conclusion that ASTS reported the test result to Respondent on June 6, 2008. 4gives July 15, 2008 as the date ASTS reported the result and provided Exhibit A to Respondent. Mr. Jones's testimony athearing is consistentwith bothExhibit C and Exhibit B. (Tr. 134:7- 135:4.) The explicit mention ofthe July 15, 2008 contact date in all three instances is crucial in this case because, assuming June 6, 2008 is Mr. Kovacic's hire date, Respondenthadto receive the test result on orbefore that date to avoid the charged regulatory violation. Mr. Jones's consistent andrepeated testimony and statements are strong proofthat Respondent did not receive the test result until after June 6, 2008. Second, Respondent lifts Mr. Jones's statementthat "our system does not allow us to manipulate dates" out ofcontext. (Resp't Br. 5.) The quote inits proper context is as follows: The final document is the MRO report which indicates today's date [February 9, 2011] as the date certified. That is somewhatmisleading, as our system does not allow us to manipulate dates, which was a safety feature that I insistedbepart of our design to prove that we do not "backdate" results atthe request ofemployers. The remainder ofthe data is the same as reported to AirZ on 7/15/2008. (Ex. B. at 2 (emphasis added).) Itis therefore wrong for Respondentto assertthatASTS must have contacted it on June 6, 2008 based onthe quoted language because (1) the date referredto as not subject to manipulation is February 9, 2011, which is the date for "Report Released"; and (2)Mr. Jones states in the very sameparagraph that the report was given to Respondent on July 15, 2008. (Resp't Br. 4-5.) The best evidence on ASTS's actions regarding Mr. Kovacic's test clearly and convincingly shows that ASTS did notreport Mr. Kovacic's test results to Respondent on orbefore June 6, 2008.



### III. The Documentary Evidence In the Record Shows That Respondent Did Not Receive the Verified Negative Result ofMr. Kovacic's Drug Test Until Mter June 6, 2008 Furthermore, the evidence shows that ASTS could not have contacted Respondent's Designated Employer Representative ("DER") because it did not have the information it needed 5onJune 6, 2008 and report Mr. Kovacic's test results. Although ASTS had Respondent's company name, address, and phone number from the CCF, it did not have the name and contact information ofRespondent's DER. ASTS's policy is not to call a company to get the DER's contact information, butto instead require that information in writing from the company. (Tr. 125 :22-126:21.) This policy is consistent with the regulatory requirementthat testresults must be reportedto the DER. 49 C.F.R. 40.165(a). Both ofthese policies are meantto help preserve the privacy oftestresults andthe effective operation ofdrug testing programs by limiting the individuals who handle them. In addition, Respondent had the legal duty to provide the name andtelephone number ofits DERto the collector. 49 C.F.R. § 40.35. Respondent cannot blame ASTS for following its policy to not call employers like itselfto get DER information when Respondent did not meet its legal duty to provide its DER's name and phone number. Mr. Rohl's name is not onthe CCF and there is no evidence indicating Respondent gave Mr. Rohl's name as DERto Concentra so that it could betransmitted toASTS or any other MRO. (Ex. B.) ASTS also attemptedto getthe DER information from Concentra multiple times before itfmally received the information onJuly 15,2008. (Ex. C; Tr. 124:15-125:2, 129:9- 131 :8; see also id 127:2-18.) ASTS thus acted properly infollowing its policy, and in so doing did notreport Mr. Kovacic's verified negative test result to Respondent on or before June 6, 2008. Respondent misinterprets 49 C.F.R. § 40.167(b) with regards to the report of Mr. Kovacic's testresult. It argues that§ 40.167(b) requires all MROs to transmit verified negative drug testresults onthe same day they are verified. (Resp'tBr. 1-2.) In fact, as clearly stated in the partofthe regulation not quoted by Respondent, "all verified positive test results, results requiring an immediate collectionunder direct observation, adulterated or substituted

6specimen results, and other refusals to test" are those that mustbe report onthe same day as verification.§ 40.167(b). There is no mention whatsoever ofverified negative test results. Furthermore, the statementthat "directtelephone contactwiththe DERis the preferred method ofreporting" is from 

### § 40.167(b)(I), indicating that itrefers to the requirement to immediately report "all verifiedpositive test results, results requiring an immediate collectionunder direct observation, adulterated or substituted specimen results, and other refusals to test." § 40.167(b). Thus there is no preference for direct telephone reporting when it comes to verified negative test results. IfASTS had called and reported the verified negative result ofMr. Kovacic's test on June 6, 2008, it had to under§ 40.167(c) provide a written report within two days ofverification. Respondent, however, has never produced that written report to support its argument, even though byregulation ithad to maintainthat report for one year. The fact thatthere is no written report extant is consistentwithMr. Jones's testimony thatASTS verified the result and put it in "limbo" because they did not have Respondent's DERname and other contact information. (Tr. 132:10-134:6.) Furthermore, as noted above, 49 C.F.R. § 40.165(a) states that anMRO must report results to the DER. IfASTS did nothave the name ofRespondent's DERto call him by phone, neither couldthey send the results to him by mail in a way that would ensure the DER received them. Respondent's final fusillade that ASTS's records are unreliable or inadequate and that it purposefully hidrecords requested by Respondent also falls short. (Resp't Br. 8.) ASTS's recordkeeping system is not "constantly changing" as Respondent characterizes it. Mr. Jones testified thatthere had beenjust "acouple changes," and that the relevant data for Mr. Kovacic's test result was still there (Tr. 163:22-164: 11.) Respondent attempts to argue that ASTS failed to



### 7produce all oftherelevant documents to Respondent in response to its subpoena 

### duces tecum, and thus impeded Respondent's ability to make a defense. (Resp't Br. 8.) Inparticular, he points to Mr. Jones's testimony onpage 141 ofthe hearing transcript. However, all Mr. Jones stated there was thathe did not, inresponse to the subpoena 

### duces tecum, produce any computer printouts like the one in Exhibit C-6 showing the state ofthat data file when it was first created. 

### (See Tr. 141:3-142:6.) What Mr. Jones did produce was Exhibit C-6, the screenprint ofthe data

on Mr. Kovacic's test result from ASTS's database. Inparagraph three ofMr. Jones's cover letter for ASTS'sresponse to the subpoena, Exhibit B, Mr. Jones labels the data screen print as "AttachmentA" and describes the various relevantparts ofthe screen print. Exhibit C-6 is labeled "AttachmentA" and has two ofthe areas described byMr. Jones inExhibit B circled. Exhibit C-6 also matches the general description ofAttachment A given inparagraphthree of Exhibit B. Mr. Jones's provision ofExhibit C-6 inresponse to Respondent's subpoena 

### duces tecum provided all ofthe information onMr. Kovacic's test kept in ASTS's database. As Respondent did not objectto Mr. Jones's testimony about ASTS's transmittal logs (indeed, Respondent himselfasked aboutthem in cross-examination), he cannot now argue that Mr. Jones's failure to provide them in response to the subpoena is error requiring a finding against Complainant. (Tr. 152:20-154:7.) The same can be said for any telephone logs regarding

a call Ms. Garzamay have made to Respondent and the setup sheet from Concentra. 

### (Id, 175:6- 176:21.) Furthermore, Mr. Jones didprovide Exhibit A to Respondent when requested; it is the document described inparagraph five onpagetwo ofExhibit B, ASTS's February 9, 2011 cover letter for its response to the subpoena 

### duces tecum. Indeed, Respondent uses a quote from that very part ofExhibit B to argue that Exhibit A proves ASTS verbally reportedthe testresult to

8Air Z. (Resp't Br. 4-5.) Respondent has therefore recognized that Exhibit B references Exhibit A

as something included in ASTS's response to the subpoena 

### duces tecum.

CONCLUSION A preponderance ofthe reliable, probative, and substantial evidence clearly proves that Respondent did notreceive the verified negative result of

### Mr. Kovacic's drug test on orbefore June 6, 2008. Nothing inMs. Frankel's testimony upsets that conclusion. She was qualified to speak about what she testified to, and her testimony does not in any way prove that Complainant's investigation was inadequate. Her testimony is bolstered and clarified bythe documentary evidence in this case, particularly Exhibits C and C-7. The documentary evidence also drives home that Respondent did not timely receive Mr. Kovacic's test result. When speaking specifically onMr. Kovacic's test result, Mr. Jones's testimony and statements uniformly say that ASTS did notprovide thattest result to Respondentuntil July 15, 2008. Respondenttakes Mr. Jones's statements out ofcontext in order to make them seem to say that ASTS must havereported the testresult to Respondent on June 6, 2008. ASTS did not and also could nothave reported the results onthat day because it did not yethave the name and phone number for Respondent's DER. This was fully consistent with its policies and withthe applicable federal regulations. The data from ASTS received by Respondent and entered into evidence is reliable, and Respondent has failed to preserve any argument that ASTS did not respond to its subpoena 

### duces tecum. In sum, Respondent has failed to undermine Complainant's demonstration, by a preponderance ofthe evidence, that it did notreceive the verified negative result of

### Mr. Kovacic's drug test on orbefore June 6, 2008. Complainant therefore respectfully requests that its complaint inthis matter be affirmed.

9Dated: May 9, 2012

10 Respectfully submitted,

# /fJk~ 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.govCERTIFICATE OF SERVICE I hereby certify that I served by U.S. Certified Mail, return receipt requested, a copy of the preceding Complainant's Reply to Respondent's Post-Hearing BriefinIn 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 servedbyU.S. Certified Mail, 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: Hearing Docket Clerk, AGC-430 Federal Aviation Administration 600 Independence Ave., S.W. Wilbur Wright Building-Suite 2W1000 Washington, D.C. 20591

Name:

## B~**B~** Date: 

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