UNITED STATES OF AMERICA R. ECEIVED 

U. S. DEPARTMENT OF TRANSPORTATION . 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

) 

MAY ~ 9.2012 

HEARING DOCKET 

In the matter of ) 

) 

AIR Z FLYING SERVICE, INC. ) 

FAA Docket No. CPlOSWOOlO 

Case No. 2009SW910051 

Judge Richard C. Goodwin 

) 

COMPLAINANT'S REPLY TO RESPONDENT'S POST-HEARING BRIEF 

In accordance with Rn1e 13.23l(c) of the Rn1es of Practice in Federal Aviation 

Administration Civil Penalty Actions, 14 C.F .R. § 13.231 (c), and in accordance with the order of 

Administrative Law Judge Goodwin, Complainant hereby files his Reply to Respondent's PostHearing Brief in the above-captioned matter. 

ARGUMENT 

I. Respondent's Arguments Relying On Ms. Frankel's Testimony Are 

Mischaracterizations or are Irrelevant to the Issues to be Decided 

Complainant has proven its case with a preponderance of the reliable and credible 

evidence, while Respondent's arguments to the contrary are not supported by the record. A 

significant part of Respondent's argument in his brief relies on his characterization of 

Ms. Frankel's testimony. (See generally Resp't Br. 2-4.) All of his arguments in this 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 if necessary. (Id) She was not involved in the 
primary review of the evidence collected; the inspectors she supervised did this. (Tr. 87:9-16.) 

Furthermore, Ms. Frankel did not see the evidence collected at the inspection again until she 

performed her final review and approved the case for referral to Complainant's legal counsel. 

(Tr. 87: 17-88: 16.) Thus, any discovery conducted by Complainant would have occurred after her 

review of the file. She may have never seen items received in response to Complainant's 

discovery requests, as well as other items generated after the file went to 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 of sloppiness or an inadequate 

investigation. Rather, it simply illustrates that she was not closely involved with every aspect of 

this case, particularly those that developed after she transferred the case to the legal counsel's 

office. This is a wholly unremarkable fact for any sort of government agency that does 

investigations or inspections. 

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 

test result on or before the date it hired him. (Resp't Br. 3.) Ms. Frankel testified about the 

regulations it is her job to ensure compliance with, as well as the meaning of important 

documents in light of those regulations. Ms. Frankel, as a supervisor reviewing the inspection in 

this case, was qualified to describe how certain common types of documents (like drug result 

reports, Exhibits A & C-1 in this case) prove a violation of drug 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. 

Respondent makes much of the fact that Ms. Frankel believed, at the time of the 

inspection, that ChoicePoint was Respondent's MRO. (Resp't Br. 3-4.) Respondent fails to note 

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that 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 of the verified negative result of 

Mr. Kovacic's drug test provided to Complainant at the inspection was the ChoicePoint result 

report, Exhibit C-1. As Ms. Frankel testified, Complainant relied on the information provided by 

Respondent to determine who its MRO was. (Tr. 78:6-18.) It was only long after the inspection 

that Complainant received Exhibits C and C-7. These exhibits explain why there were MROs at 

two companies (ASTS and ChoicePoint) involved in this case, and how Mr. Kovacic's test 

results came to each of them. Exhibit C-7 also sheds light on why the CCF (Custody and Control 

Form) received date, verification date, and reported date on Exhibit C-1 are all the same. Exhibit 

C-7 lays out how Choice Point received the CCF, verified the result, and reported it on all on July 

17,2008. (Ex. C-7.) Ms. Frankel testified that each of these events occurring on the same date 

was a plausible scenario. (See Tr. 74:5-8.) Complainant therefore 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 overlook the ASTS report, Exhibit A. (Resp't Br. 3-4.) Indeed, the 

documentary evidence and testimony resulting from the inspection in this case constitutes a 

preponderance of the evidence in support of the 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 or before June 6, 2008. This date is crucial because it is the latest of three possible 

dates of hire for Mr. Kovacic. 1 One date, May 28, 2008, is the date given on Exhibit C-2, 

Mr. Rohl's note of July 23, 2008. Mr. Rohl, however, testified that May 28, 2008, is not the hire 

date. (Tr. 217:14-218:4.) The second date is on Mr. 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 of the three possible hiring dates is explained more fully on page four of Complainant's initial brief. 

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Mr. Kovacic's first performance of a safety-sensitive function for Respondent: June 6, 2008. 

Respondent correctly notes from Ms. Frankel's testimony that the date offrrst performance may 

be used when there is no explicit evidence of a hire date. (Tr. 31: 15-21.) Even if the court 

accepts June 6, 2008 as the date of hire for Mr. Kovacic, which would favor Respondent, 

Respondent did not receive the verified negative result of his pre-employment drug test on or 

before that date. (Compl. Br. 4.) Exhibit C-7 shows how ChoicePoint did not receive 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 

result until July 15, 2008. Mr. Jones's statements in Exhibit C do not establish that ASTS 

reported the test result to Respondent any sooner than that, 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 in Exhibit C that the 

"verification process 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't Br. 4-5.) Yet he seriously misconstrues and takes out of context 

Mr. Jones's statements in Exhibit C and elsewhere.2 First, Respondent ignores the fact that 

Mr. Jones unequivocally states in Exhibit C: "At no point did ASTS report the result [of 

Mr. Kovacic's test] to Air Z [i.e. Respondent], Concentra or any other party, verbally or written, 

until the set-up sheet was received via Fax transmission on July 15, 2008. ASTS then verified the 

result and forwarded the result to the DER at Air Z." (Ex. Cat 3.) In Exhibit B, Mr. Jones again 

2 See also Complainant's initial brief at pages nine and ten for a discussion of why Mr. Jones's statement does not 

support the conclusion that ASTS reported the test result to Respondent on June 6, 2008. 

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gives July 15, 2008 as the date ASTS reported the result and provided Exhibit A to Respondent. 

Mr. Jones's testimony at hearing is consistent with both Exhibit C and Exhibit B. (Tr. 134:7-

135:4.) The explicit mention of the 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, Respondent had to receive 

the test result on or before that date to avoid the charged regulatory violation. Mr. Jones's 

consistent and repeated testimony and statements are strong proof that Respondent did not 

receive the test result until after June 6, 2008. 

Second, Respondent lifts Mr. Jones's statement that "our system does not allow us to 

manipulate dates" out of context. (Resp't Br. 5.) The quote in its 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 somewhat misleading, as our system does not 

allow us to manipulate dates, which was a safety feature that I insisted be part of 

our design to prove that we do not "back date" results at the request of employers. 

The remainder of the data is the same as reported to Air Z on 7/15/2008. 

(Ex. B. at 2 (emphasis added).) It is therefore wrong for Respondent to assert that ASTS 

must have contacted it on June 6, 2008 based on the quoted language because (1) the date 

referred to as not subject to manipulation is February 9, 2011, which is the date for "Report 

Released"; and (2) Mr. Jones states in the very same paragraph 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 not report Mr. Kovacic's test 

results to Respondent on or before June 6, 2008. 

III. The Documentary Evidence In the Record Shows That Respondent Did Not Receive 

the Verified Negative Result of Mr. 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 

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on June 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 of Respondent's DER. ASTS's policy is not to call a company to get the DER's 

contact information, but to instead require that information in writing from the company. 

(Tr. 125 :22-126:21.) This policy is consistent with the regulatory requirement that test results 

must be reported to the DER. 49 C.F.R. 40.165(a). Both of these policies are meant to help 

preserve the privacy of test results and the effective operation of drug testing programs by 

limiting the individuals who handle them. In addition, Respondent had the legal duty to provide 

the name and telephone number of its DER to the collector. 49 C.F.R. § 40.35. Respondent 

cannot blame ASTS for following its policy to not call employers like itself to 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 on the CCF and there is no evidence indicating Respondent gave 

Mr. Rohl's name as DER to Concentra so that it could be transmitted toASTS or any other 

MRO. (Ex. B.) ASTS also attempted to get the DER information from Concentra multiple times 

before it fmally received the information on July 15,2008. (Ex. C; Tr. 124:15-125:2, 129:9-

131 :8; see also id 127:2-18.) ASTS thus acted properly in following its policy, and in so doing 

did not report 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 test result. It argues that§ 40.167(b) requires all MROs to transmit verified 

negative drug test results on the same day they are verified. (Resp't Br. 1-2.) In fact, as clearly 

stated in the part of the regulation not quoted by Respondent, "all verified positive test results, 

results requiring an immediate collection under direct observation, adulterated or substituted 

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specimen results, and other refusals to test" are those that must be report on the same day as 

verification.§ 40.167(b). There is no mention whatsoever of verified negative test results. 

Furthermore, the statement that "direct telephone contact with the DER is the preferred method 

of reporting" is from § 40.167(b )(I), indicating that it refers to the requirement to immediately 

report "all verified positive test results, results requiring an immediate collection under 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. 

If ASTS had called and reported the verified negative result of Mr. Kovacic's test on 

June 6, 2008, it had to under§ 40.167(c) provide a written report within two days of verification. 

Respondent, however, has never produced that written report to support its argument, even 

though by regulation it had to maintain that report for one year. The fact that there is no written 

report extant is consistent with Mr. Jones's testimony that ASTS verified the result and put it in 

"limbo" because they did not have Respondent's DER name and other contact information. 

(Tr. 132:10-134:6.) Furthermore, as noted above, 49 C.F.R. § 40.165(a) states that an MRO must 

report results to the DER. If ASTS did not have the name of Respondent's DER to call him by 

phone, neither could they 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 hid records 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 that there had been just "a couple 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 

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produce all of the relevant documents to Respondent in response to its subpoena duces tecum, 

and thus impeded Respondent's ability to make a defense. (Resp't Br. 8.) In particular, he points 

to Mr. Jones's testimony on page 141 of the hearing transcript. However, all Mr. Jones stated 

there was that he did not, in response to the subpoena duces tecum, produce any computer 

printouts like the one in Exhibit C-6 showing the state of that data file when it was first created. 

(See Tr. 141:3-142:6.) What Mr. Jones did produce was Exhibit C-6, the screen print of the data 

on Mr. Kovacic's test result from ASTS's database. In paragraph three of Mr. Jones's cover 

letter for ASTS's response to the subpoena, Exhibit B, Mr. Jones labels the data screen print as 

"Attachment A" and describes the various relevant parts of the screen print. Exhibit C-6 is 

labeled "Attachment A" and has two ofthe areas described by Mr. Jones in Exhibit B circled. 

Exhibit C-6 also matches the general description of Attachment A given in paragraph three of 

Exhibit B. Mr. Jones's provision of Exhibit C-6 in response to Respondent's subpoena duces 

tecum provided all of the information on Mr. Kovacic's test kept in ASTS' s database. 

As Respondent did not object to Mr. Jones's testimony about ASTS's transmittal logs 

(indeed, Respondent himself asked about them 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. Garza may have made to Respondent and the setup sheet from Concentra. (Id, 175:6-

176:21.) Furthermore, Mr. Jones did provide Exhibit A to Respondent when requested; it is the 

document described in paragraph five on page two of Exhibit 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 of Exhibit B to argue that Exhibit A proves ASTS verbally reported the test result to 

8 
Air 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 of the reliable, probative, and substantial evidence clearly proves that 

Respondent did not receive the verified negative result of Mr. Kovacic's drug test on or before 

June 6, 2008. Nothing in Ms. 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 by the 

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 on Mr. Kovacic's test result, Mr. Jones's testimony and statements 

uniformly say that ASTS did not provide that test result to Respondent until July 15, 2008. 

Respondent takes Mr. Jones's statements out of context in order to make them seem to say that 

ASTS must have reported the test result to Respondent on June 6, 2008. ASTS did not and also 

could not have reported the results on that day because it did not yet have the name and phone 

number for Respondent's DER. This was fully consistent with its policies and with the 

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 of the evidence, that it did not receive the verified negative 

result of Mr. Kovacic's drug test on or before June 6, 2008. Complainant therefore respectfully 

requests that its complaint in this matter be affirmed. 

9 
Dated: May 9, 2012 

10 

Respectfully submitted, 

Nicholas 

/fJk~ R. Milliard 

Attorney 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

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 by U.S. Certified Mail, return receipt requested, a copy of 

the preceding Complainant's Reply to Respondent's Post-Hearing Brief in In the Matter of Air Z 

Flying Service, Inc, FAA Docket No. 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 by U.S. Certified Mail, return receipt requested, 

a copy of the same, addressed to: 

to: 

The Honorable Richard C. Goodwin 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

I also hereby certify that I served by hand delivery, the original and one copy of the 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: )\1\(,U,! q , L.O \ L._ 

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