Nolen v. Pham, NTSB Order EA-5936
| Court | Court of National Transportation Safety Board |
| Writing for the Court | HOMENDY, CHAIR |
| Parties | BILLY NOLEN,[1] Acting Administrator, Federal Aviation Administration, Complainant, YDIL W. PHAM, Respondent. |
| Docket Number | NTSB Order EA-5936,SE-30891 |
| Decision Date | 26 August 2022 |
BILLY NOLEN,[1] Acting Administrator, Federal Aviation Administration, Complainant,
v.
YDIL W. PHAM, Respondent.
NTSB Order No. EA-5936
Docket No. SE-30891
United States Court of National Transportation Safety Board
August 26, 2022
Adopted by the NATIONAL TRANSPORTATION SAFETY BOARD at its office in Washington, D.C. on the 25th day of August, 2022
EMERGENCY
OPINION AND ORDER ON REMAND
HOMENDY, CHAIR
1. Background
On remand from the United States Court of Appeals for the District of Columbia Circuit, we revisit respondent's appeal of the oral initial decision of Administrative Law Judge William R. Mullins, issued November 24, 2020.[2] By that decision, the law judge determined the
Administrator proved respondent violated 49 C.F.R. § 40.191(a)(2) and 14 C.F.R. § 120.7(o) by refusing to submit to a required drug test, and therefore, affirmed the Administrator's revocation of respondent's airline transport pilot certificate and airman medical certificates. We affirmed in part, but mitigated the revocation sanction to a 180-day suspension. With due consideration for the issues raised by the Court, we reverse our prior decision concerning the sanction and affirm the Administrator's revocation of respondent's airline transport pilot certificate and airman medical certificates.
A. Facts[3]
Respondent held an airline transport pilot certificate, issued under 14 C.F.R. Part 61, and airman medical certificates issued on or about March 10, 2020 and November 11, 2017, under 14 C.F.R. Part 67.[4] On August 11, 2020, Private Jets, Inc. conditionally offered respondent employment as a pilot, a safety-sensitive position.[5] Private Jets, Inc. had implemented a drug and alcohol testing program pursuant to 14 C.F.R. Part 120 and 49 C.F.R. Part 40.[6] Respondent was a covered employee subject to pre-employment drug testing under Private Jets, Inc.'s drug and alcohol testing program.[7]
On August 11, 2020, Private Jets, Inc. directed respondent to report for a pre-employment drug test.[8] Respondent reported to Quest Diagnostic for testing and the collector, Lois West, began the testing process. Respondent was unable to produce 45 milliliters of urine, which is the minimum amount required for testing by the DOT Drug and Alcohol Testing Program
regulations.[9] Respondent left Quest Diagnostic without providing a sufficient urine specimen and left the testing site before the testing process was complete.[10] Ms. West contacted Cindy Boone, the Drug Testing Program Manager for Private Jets, Inc., to inform her that respondent left the testing site without providing a sufficient sample and without completing the test.[11] Ms. Boone reported respondent's conduct as a refusal to the FAA.[12] Respondent did not return to the testing facility to complete the drug test.[13]
B. Procedural Background
On November 5, 2020, the Administrator issued an Emergency Order of Revocation, which became the complaint in this case, revoking respondent's airline transport certificate and airman medical certificates. The Administrator alleged respondent violated 49 C.F.R. § 40.191(a)(2)[14] and 14 C.F.R. § 120.7(o)[15] by refusing a DOT-required drug test.
Respondent timely appealed the emergency order on November 6, 2020, and filed an
answer to the complaint on November 16, 2020. The law judge conducted a hearing on November 23, 2020, and issued an oral initial decision on November 24, 2020. Respondent timely appealed the law judge's oral initial decision on November 25, 2020, and filed a supporting brief on November 30, 2020. The Administrator filed a reply brief on December 7, 2020.
At the hearing before the law judge, the following witnesses testified on the Administrator's behalf: Lois West, the Quest Diagnostics test collector; Cindy Boone, the Drug Program Manager for Private Jets, Inc.; and Lacey Jones, Manager of the FAA Special Investigations Branch of the Drug Abatement Division. Respondent testified on his own behalf and called no other witnesses.[16]
Ms. West testified that she has performed urine specimen collections for Quest Diagnostics on and off for about 10 years.[17] On direct examination, she testified that she performed approximately three to five tests per day, but was unsure of how many DOT-regulated drug tests she performed.[18] Ms. West described generally the DOT-regulated testing procedures, and stated that she recalled respondent's test.[19] Ms. West testified that respondent's test began as a normal test, but he was unable to produce any urine and handed Ms. West an empty cup after going to the restroom.[20] She then explained that if respondent had produced urine, it was not
nearly a sufficient amount.[21] Ms. West testified that respondent informed her that he was unable to stay at the testing site any longer, and Ms. West could not recall whether she informed respondent of the shy bladder procedures.[22] However, Ms. West testified that she told respondent that his leaving the testing site would be considered a refusal.[23] Ms. West elaborated that, because she has not experienced many refusals, she recalls respondent's refusal to test and the fact that she advised respondent that leaving would constitute a refusal.[24] Ms. West did not recall telling respondent that he could leave the site; rather, she notified respondent that if he left, he would need to obtain a new order form from his prospective employer.[25] Ms. West testified that respondent left, did not drink any water, and did not attempt to produce another urine specimen that day.[26]
Further, Ms. West explained the process for completing the control and custody form for respondent's test.[27] She stated that much of the information on the form is computer-generated based on her inputs.[28] On the form for respondent's test, Ms. West checked the box stating, "No specimen provided," and as a result, she was not prompted to respond to other questions on the form, such as one pertaining to the temperature of the specimen.[29] Ms. West also explained that because she checked the "No specimen provided" box, the computer generated a comment stating, "Donor refused to provide specimen."[30] In the "Remarks" section, Ms. West wrote that
she contacted Cindy Boone because when the donor is unable to leave a specimen, the computer prompts her to contact his employer.[31] After completing the "Remarks" section, the only steps left were for Ms. West to add her signature and check "Finish."[32] When asked whether the computer prompted Ms. West to inform respondent that he could not leave the testing facility, Ms. West responded, "I believe it does. But right now, I would - I would have to see it in my face."[33] Ms. West testified that to the best of her recollection, the computer-generated comment stating "Donor refused to provide specimen" reflected what occurred during respondent's test.[34] Moreover, Ms. West testified again on direct examination that she recalled notifying respondent that leaving the testing facility would be considered a refusal, stating, "I let - yes, I let him know that if he left it would be considered a refusal."[35] Ms. West additionally noted that she was trained to inform the patient that failing to provide a specimen was considered a refusal.[36] Ms. West testified that respondent was at the testing facility for approximately 20 minutes.[37] Finally, Ms. West stated that after respondent left the facility, she called Ms. Boone, whose name appeared on the custody and control form as the personnel contact.[38] According to Ms. West, she told Ms. Boone that respondent was unable to leave a specimen and left the facility, and that Ms. West informed respondent that if he left, it would be considered a refusal.[39]
On cross-examination, Ms. West clarified that she has been performing about three to five drug tests per day since she became a "float" for her company in May 2020, moving from location to location.[40] At "a lot of" the locations, she does not conduct drug testing.[41] Prior to becoming a "float," Ms. West worked in a doctor's office for three years and did not perform any drug testing.[42] Ms. West agreed with respondent's counsel that she does not have independent recollection of respondent's drug test on August 11, 2020, but noted,
I can say that we rarely ever have any refusals, and that's why I can - I can remember this. I can remember him coming into the facility and I can remember him leaving the facility because when most people come for a drug screen, they're usually able to urinate for that drug screen. So we rarely ever have any refusal.[43]
Ms. West testified that she remembered respondent returning to her an empty cup but acknowledged that it was possible that respondent produced an insufficient amount of urine.[44]
Further, Ms. West testified that she did not recall whether she explained the shy bladder procedures to respondent, including whether she informed him that he may drink up to 40 ounces of water over three hours, but Ms. West stated that she remembered that respondent did not drink any water because he left the facility.[45] On cross-examination, respondent questioned Ms. West about her recollection of whether respondent washed his hands at the beginning of the test or refrained from hand-washing after his attempt to produce urine. Ms. West testified that respondent washed his hands before and used hand sanitizer after his attempt to deliver a urine specimen because her practice was to instruct patients as such.[46] However, Ms. West admitted
that she did not independently recall whether she instructed respondent to wash his hands before attempting to produce urine or refrain from washing his hands after his attempt.[47] Moreover, Ms. West conceded that she lacks independent recollection of whether she showed respondent the 45 millimeter mark on the specimen cup.[48] Ms. West testified that she did...
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