U,S,Deportmentof Transportation

Federal AviationAdministration

fJAN 20 2012

Mr. Jeff Lewis28242 S. Salo RoadMulino, OR 97042

Dear Mr. Lewis:

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Air Traffic Organization800 Independence Avenue SWWashington, DC 20259

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This is in response to your December 15,2011 Freedom ofInformation Act (FOrA 2012-2042)request for various records regarding the September 29,2010 accident ofN856HA atHillsboro, Oregon, The portion of the request which sought a copy of all releasable portions ofATSAP filings related to the accident was assigned to ATO, Safety. The remaining items ofyour request will be addressed by another FAA office under separate cover.

Under the FOrA, there is a two-part test for determining what constitutes "agency records,"Specifically, "agency records" are records that are (1) either created or obtained by an agency,and (2) under agency control at the time of the ForA request. In this case, the ATSAP recordsyou seek, if they were to exist, do not meet the criteria of an "agency record," as they wereneither created nor obtained by the FAA and are not under agency controL Specifically,ATSAP records are obtained, maintained and controlled by a contractor. Accordingly, they arenot considered agency records and are not subject to the FOrA. Therefore, there are no recordsresponsive to that portion of your request, which sought a copy of all releasable portions ofATSAP filings related to the subject aircraft accident.

There are no fees associated with this request because the cost of processing was less than $10,

The undersigned is responsible for this no records determination. You may requestreconsideration of this detennination by writing to the Assistant Administrator for Finance andMam'[.gement, AFN-l, Federal Aviation Administration, 800 Independence Avenue, SW,Washington, DC, 20591. Your request must be made in writing within 30 days from the dateof receipt of this letter and must include all information and arguments relied upon. Yourletter must state that it is an appeal from the above-described denial of a request made underFOrA. The envelope containing the appeal should be marked "FOIA."

A Timeline, Showing Concealment of Agency RecordsThe Case, as presented prior to 3/4/2009...

2/16/07: Lewis locked out by CCR manager.

3/28/07: Accountability Board ROI (94-pages) iscompleted, sent out for review and disciplinary action.

4/17/07: Start of 24-week Constructive Suspension.

6/13/07: Accountability Board case CLOSED.

6/14/07 and 7/14107: First LR's Marshall, then LR'sFossier, both recommend a written admonishment.

7/16/07: CCR Manager emails LR Specialist Fossier andfive others, with draft of letter admonishing Lewis.

7/27/07: District Manager sends admonishment letter.

9/5/07: LR Specialist Fossier emails five managers,confirms Lewis was admonished, so ROI is releasable.

10/1/07: CCR Manager emails FOIA Specialist Zullo,he does not have to produce records because there is"no current proposed disciplinary action" for Lewis.

1/10/08: Regional Flight Surgeon fullyrestores Lewis' ATC Medical Clearance.

4/17/08: District Manager sends Lewis letteradvising "return to work p/an"to be discussed.

5/1/08: Lewis accepts LR Specialist GlenRotella's offer of settlement, withdraws ULP andfiles a new grievance, to recover $40,000 in paylost during the 2007 Constructive Suspension.

7/16/08: Lewis receives first copy of letter fromDistrict Manager, proposing his removal, basedsolely on the ROI completed in March 2007. At thetime, Lewis had been locked out for 17-months.

11/6/08: Lewis was fired.

11/30/08: Lewis files Appeal with MSPB.

2/13/09: Agency Counsel continues to offer Lewis adisability retirement: he declines, as he is ineligible.

2/19/09: In a 3-hr deposition, CCR Manager JasonRalph repeatedly states Lewis was admonished.Witnessed by AWP Counselor Naomi Tsuda.

3/4/09: AWP Counselor Tsuda tells Judge, Lewis wasnever admonished. MSPB Hearing never starts.

5/5/09: Lewis forced to retire.

08

APR

08

JUL

08

oCT

. .. and the key evidence, Concealed by FAAOfficials, but revealed after 3/4/2009 ..•

3/12/07: AWP EAP Manager, coordinates with A WPMedical, Legal, and LR officials, then provides the two,letters, initiating the lockout, and ordering Lewis to geta$2,mLQ. eV.<L!uation.rreveal~d 6/l~!2QI01~_ ~_5/9/07: LR Specialist Fossier emails that Lewishas no conduct record. [revealed 2/16/2010]~ =-_~ __m~_. _ _6/13/07: LR Specialist Fossier twice questions Dr.Goodman: was Lewis properly notified? [revealed 3/18/2010]

'7/6/07: Regional Flight ·Surgeo-;· sends email to LR-''Specialist Fossier, advises Lewis' medical file is on hisdesk for viewing. F ossier then forwards this email toLewis' Air Traffic Managers. [revealed 12/3/2009]

.. .- - .

12/3/07: District Manager Andy Richards wants to reassignlewis to the tower at Santa Rosa. Barry Davis advises Teri

Bristol that there is a"!imeliness")ssue. [revealed 7/22/2010]

_. -.

4/17/08: LR Specialist Marable reviews I3-month-old,ROI, drafts letter proposing I4-day suspension, sends

!.? Distr~~!,!anag~r. [re~e~l~d 4/~5/201~) •..5/15/08: LR Specialist Marable emails DistrictManager Andy Richards, advises she has started

draft~g a ~moval !etter. [re.veale.d9/2712010]6/24/08: Monique France concurs with draftremoval proposal; she had been reading A WP /LRTerminal Reports for eight months that falselyclaimed Lewis was A~PL. rrevealed)/28[20111

. ..-

10/6/08: Acting District Manager submits unsigned DouglasFactors. None of the alternative sanctions (written'admonishment, reassignment, or 14-day suspension) arementioned. States Lewis had to be removed because herefused a disability retirement (fails to note Lewis was noteligible for disability). [revealed 111512011]

. ..

2/24/09: In two MSPB pre-Hearing conferences, A WPCounselor Naomi Tsuda expresses "significant securityconcerns" and requests "armed guards" and "metal,detectors" ... yet, Lewis had no police record, no history

. supporting these requests. [revealed 1/15/2011]

6/29/09: Lewis receives Detailed Incident Report,the first of dozens of exculpatory records redacted'from FOIA and concealed from MSPB.

The Lewis-CCR Case

FAA's handling of the Lewis-CCR Case happened in two phases: first, the 2007 efforts toforce Lewisinto a medical disability retirement, and later, the 2008 efforts to simply fire Lewis, then offer him hisretirement annuity if he agreed to retire. These efforts were led by two Agency organizational units:the Air Traffic Line of Business (AT-LoB), and the FAA's Western Pacific Region (AWP).

2007: The failed effort to retire Lewis on a medical disability

Lewis was locked out, an Accountability Board (AB) case was investigated, and a written admonishment wasissued. Lewis eventually succeeded in having his ATC Medical Clearance restored. Key officials:

AT-LoB:

Ted Bristol, Acting Director, Western Service Area, Terminal Operations. Bristol was also the AB AccountableOfficial; she later became FAA's VP of Technical Operations. Her duties were assisted by Barry J. Davis (Sr.Advisor for Bristol) and Monigue France (Executive Staff Advisor, starting July 2007).

Dennis Sullivan was the Acting Golden Gate District Manager, in charge of all towers in the Bay Area.He was replaced by Andy Richards in August 2007.

CCR ATCT: When Lewis was locked out on 2/16/2007, Concord was a very small tower,with eight controllers. The Concord Manager was Jason Ralph; the Supervisor was PatriciaHardy; the NATCA representative was Bill Marks. Lewis' other coworkers included AndrewAmott, John Crabtree, Ken Hougey, Ken Moyer, Andy Papageorge, and James Swanson.

AWP:

HRlLRlER: Tim Kubik was the Acting HRM Director (Human Resources Management). Within HRM,the office that assisted ATO-LoB in disciplinary cases was AWP-16 (Labor Relations / Employee Relations, orLR/ER). Dan Castrellon was the Acting Manager at AWP-16. Specialists within AWP-16 included: GwenMarshall (the HR POC for the AB case in early 2007); and Dick Fossier (charged with assisting in thehandling of the Lewis-CCR Case, including the issuance of appropriate discipline). Cindy Lopez-Hicksonwas the manager in charge of the AWP Employee Assistance Program (EAP).

Other AWP Officials: Dr. Stephen Goodman was the Regional Flight Surgeon who agreed to retractLewis' ATC Medical Clearance, to jsutify the Lockout (he later restored it, on 1/10/2008). Richard Giles(A WP-750) was the Manager responsible for production of the Report ofInvestigation (ROI), which was useda year later as the sole document justifying the firing of Lewis. Tony DiBernardo was the former AWP-540who offered guidance to Bristol and Davis during the transition from Regions to Service Areas.

2008: a New Plan ... first fire Lewis, then offer him his annuity if he retires

Fifteen-months after Lewis was locked out, but just a week after he had filed a grievance seeking recovery of$40,000 taken during an illegal 2007 Constructive Suspension, a removal proposal was drafted. The removalwas based solely on the ROI, for alleged actions in February 2007. Key officials:

AT-LoB:

Kathryn Vernon, Director, Western Service Area, Terminal Operations (in 2009, she became the new ANMRegional Administrator)Dave Adams (Sr. Advisor for Vernon; he first read the removal proposal letter on 8/14/2008)

Monigue France (Executive Staff Advisor; she approved the proposal letter draft on 6/30/2008)

Andy Richards was the Golden Gate District Manager, who signed the removal proposal letter. JasonRalph had been promoted, and was now the District Staffmg Manager. Mark Deplasco was ActingDistrict Manager in the Fall of2008, and he submitted the uncertified Douglas Factors Checklist on10/6/2008, then signed the removal decision letter on 10/30/2008.

AWP: Key AWP officials included Tim Kubik (HRM Director), Dan Castrellon (AWP-16, Acting Manager), GlenRotella and Ros Marable (LR/ER Specialists assigned to the Lewis-CCR Case), and AWP Counsel (NaomiTsuda, Don Bobertz, and Lierre Green). Former AWP-540 Tony DiBernardo continued to advise in the'background, more than a year after his job had been transferred to the Western Service Area.

FAA Officials involved in the Lewis-CCR Case

The Lewis-CCR Case

Agency Malfeasances: Actions by Various Agency Officials Disciplinary Proposals:

JANll- APRll- JULll-

6/13/07: the AB Case was offIcially closed at FAA-HQ (Robinson).

6/14/07: ER Specialist Marshall emailed Fossier: " ... I/orgot to ask,was Mr. Lewis getting some sort 0/discipline, e.g., a writtenadmonishment ... ? "

Comments and Actions by Agency Officials

3/28/07: AWP-700 fmishes and distributes ROI AWP-20070078.

5/9/07: in an email, ER Specialist Fossier noted that Lewis has no·conduct record and, " ... if Aerospace Medicine opts to reinstate Lewisand restore his medical, the LOB and 16 need to decide our nextmove. "

7/14/07: in an email, ER Specialist Fossier made his recommendation:" .. .1 would suggest that Lewis be counseled, admonished, and/orreprimanded regarding his behavior and the use o/the n-word ... "

7/27/07: Lewis was admonished, in a signed letter sent by DistrictManager Dennis Sullivan.

9/5/07: ER Specialist Fossier emailed Giles et aI, stating: "...Lewiswas admonished ...we [HR & LOB] closed the Accountability Boardcase ...1 would say it is OK to provide Lewis a copy ... " of the ROI.

10/1/07: Ralph emailed FOIA Coordinator Jene Zullo, stating:" ... there is no requirement to provide documents because there is nocurrent proposed disciplinary action associated with his conduct ... "

12/3/07: Barry Davis emailed Terminal Ops Director Teri Bristol,stating: " ...Andy wants to propose discipline/or the previous conductissue that led to this, and to send him over to Santa Rosa ATCT. I told

Andy we may have an issue with the timeliness ... "

1/10/08: Lewis' ATC medical clearance fully restored. Three monthslater, Marable reviews ROI and drafts 14-day suspension proposal.

Beginning in June 2009, Lewis used FOIA and Privacy Act to obtainexculpatory evidence, which Agency offIcials had previously concealed.

JAN09- APR09- JUL09- OCT09-

11/6/08: Lewis was fIred, 21­months after he was locked out

4/17/08: AWP LR Specialist Rotella negotiated a settlement of Lewis' ULP (unfair labor practice). A WP ERSpecialist Marable checked out the year-old ROI and began drafting a 14-day suspension. Both Rotella and Marableemailed Andy Richards, who mailed Lewis a letter that stated, "A return to work plan will be discussed soon ... "

~: Lewis withdrew his ULP and filed a grievance to recover $40,000 lost during the Constructive Suspension ...

... Rotella forwarded the grievance to Andy Richards on 5/7/08 and, within a week, Marable was drafting aremoval letter, based solely on the 14-month-old ROI. This was an Illegal Retaliation (for filing a grievance).1/10/08: Lewis' ATC

Medical Clearance

fully restored

5-monthConstructive

Suspension

Initial Slanders: Jason Ralph repeatedly slandered Lewis ... though the emails showing this wereconcealed for years. Most egregiously, on 2/2/07 he named four of Lewis' coworkers as"witnesses" to an alleged "Us niggers can't get any leave" comment, which became AB Case2007-0098. He slandered Lewis again during the 2/16/07 ViWP teleconference. Then, on 2/20/07,he invented the allegation that Lewis had lunged at his supervisor two weeks earlier.

The Medical Workaround: Cindy Lopez-Hickson, as A WP EAP Manager, stepped far outsideher duties to coordinate two letters to compel Lewis to get a psychological evaluation under threat

of discipline, and at his own expense. This was a workaround to bypass the Contract and force anevaluation without involving the Regional Flight Surgeon, Dr. Stephen Goodman.

The ROI: Richard Giles, as AWP-750, accepted as truth the many slanders he heard at the ViWP,then proceeded to manage production of the Report ofInvestigation. Content of the ROI wasmanipulated to produce a document that would misrepresent Lewis as a violent racist, to support amedical retirement. Key records such as Special Agent Burr's 2/20/07 Detailed Incident Reportwere excluded. Contradictions within the ROI were ignored. In the end, the ROI was neversubstantiated, yet it was widely distributed, seriously damaging Lewis' reputation.

Obstruction of Due Process: There has been a concerted effort to obstruct Lewis' Due Process

in two ways: by not communicating the charges to Lewis, and by concealing key and exculpatoryAgency records. Consider this: had Lewis accepted the disability retirement when fIrst offered, henever would have known any of the charges ... that he allegedly made the "can't get any leave"comment, that he lunged, kicked, pounded, hit, poked, and lied during the ROI interview. In fact,most of these charges were fIrst learned by Lewis in October 2007, and some charge details wereconcealed for more than three years. Key offIcials obstructing Lewis' Due Process include: Dr.Stephen Goodman, Ed Jones, Naomi Tsuda, and Tim Kubik.

FAA's Silent Majority: This case clearly reveals FAA's broken work-culture, in whichemployees are afraid to speak up when they see something wrong. Many key employees witnessedor eventually recognized the serious Agency mistakes in this case, including: Andy Richards,Dennis Sullivan, Mark Deplasco, Barry Davis, Patricia Hardy, James Swanson, Glen Rotella, DickFossier, Ros Marable, and Richard Giles. It would be healthy, and this case would be quicklycleaned up, if these people were encouraged to speak frankly, and without fear.

2/16/07:

Lockout begins;Lewis' ATC

medical clearance

revoked, basedsolely on slandersbv Jason Raloh.

U.S. Deportmentof Transportation

Federal AviationAdministration

'MAY 24 2011

The Honorable Elton GalleglyMember, United States House

of Representati ves5051 Verdugo Way, #120Camarillo, CA 93012

Dear Congressman Gallegly:

Western-Pacific RegionOffice of the Regional Administrator

P. 0 Box 92007Los Angeles, CA 90009-2007

Thank you for your letter dated May 5, 2011, on behalf of your constituents, Don Hiebert andMichael Marcotte, who are concerned about an incident which occurred at the CamarilloAirport on July 25,2010. They allege that management failed to interview a witness during theinvestigation of the incident, and that this is a violation of Federal Aviation Administration(FAA) Order 721O.56C. They also believe the incident, and others like it, are being "sweptunder the rug."

The incident in question involved an alleged loss of separation between a landing aircraft and adeparting aircraft. The issue was originally brought to the attention of management at theCamarillo Airport Traffic Control Tower through a Freedom ofInformation Act (FOIA)request for data and an Equal Employment Opportunity complaint in September 2010. It wasalso the subject of a confidential call to the FAA Administrator's Hotline on February 17,2011.

An investigation was conducted by the Los Angeles District to identify if a loss of separationoccurred and to review an allegation that this incident was covered up. The investigationincluded a review of the voice tapes and the information requested under the FOIA, along withinterviews of both the Front Line Manager and the controller involved. Based on the review ofthe voice tapes and the interviews, there was no evidence that a loss of separation occurred.

It is true that the witness was not interviewed; however, this is not a violation of FAA Order7210.56C, Air Traffic Quality Assurance. The Order states, in part:

"Personnel interviews should be conducted to the extent necessary to determine if anoperational error/deviation has actually occurred. In addition, it will at times [emphasisadded] be necessary to gather additional information from operational personnel thatwere providing air traffic services during, or were witnesses to, an incident to properlycomplete FAA Forms 7210-2 and 7210-3. Since many personnel in a facility, e.g.,controllers, air traffic assistants, and supervisors may be knowledgeable of, or actuallywere providing air traffic services during an incident, it is recommended thatoperational personnel be interviewed as appropriate [emphasis added]'''

2

Since the investigation showed no evidence that a loss of separation occurred, there was noneed to interview additional personnel.

A copy of the response to the FAA Administrator's Hotline is enclosed and provides furtherinformation about the investigation and findings.

Thank you for this opportunity to answer your inquiry. If you need further help, please contactme or Ms. Lirio Liu, Deputy Regional Administrator, at (310) 725-3550.

~thYCO~be

Regional Administrator

2 Enclosures:FAA Administrator's Hotline Response dated March 18,2011Transmitted Correspondence

cc:

Washington Office