Curry, Pearson & Wooten, PLCsavecti.org/wp-content/uploads/2016/04/MSJ-Release.pdf · 2017. 4....

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Attorneys at Law 814 W. Roosevelt

Phoenix, Arizona 85007 (602) 258-1000 Fax (602) 523-9000

Michael W. Pearson, SBN 016281 [email protected] [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jorge Alejandro Rojas, Plaintiff(s), vs. Federal Aviation Administration; Department of Transportation, Defendants.

No. CIV-15-01709-PHX-GMS

PLAINTIFF’S MOTION TO ALLOW TIME FOR LIMITED DISCOVERY;

RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT

(Assigned to the Honorable G. Murray Snow)

Plaintiff Jorge Alejandro Rojas, through undersigned counsel, respectfully moves

pursuant to Rule 56(d) of the Federal Rules of Civil Procedure for time to take discovery

before the Court rules on Defendants’ Motion for Summary Judgment (Def. Mot. Summ. J.

February 29, 2016). Plaintiff opposes Defendants’ Motion and cross-moves for summary

judgment. Plaintiff submits the accompanying Statement of Facts and Controverting

Statement of Facts, Affidavits and Exhibits in support of Plaintiff’s Motion.

MEMORANDULM OF POINTS AND AUTHORITIES

I. INTRODUCTION

The Freedom of Information Act (FOIA) was enacted to “pierce the veil of

administrative secrecy and open Agency action to the light of public scrutiny.” U.S.

Department of State v. Ray, 502 U.S. 164, 173 (1991). Since 2013, over 3,000 individuals

have been negatively impacted by Defendant Federal Aviation Administration’s (FAA)

Case 2:15-cv-01709-GMS Document 21 Filed 03/30/16 of 15

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changes to the Air Traffic Control Specialist (ATCS) hiring process. Plaintiff’s Statement of

Facts (“PSOF”) ¶ 1. The FAA significantly reduced the requirements for this safety sensitive

and skill intensive position. Id. ¶ 2. Part of the new hiring process included purging an

employment referral list of approximately 2,000-3,000 qualified candidates. Id. ¶ 3. These

candidates had graduated from FAA sanctioned air traffic control Collegiate Training

Institutions (CTI) and passed the air traffic control aptitude examination (AT-SAT). FAA

Spokesman Tony Molinaro said the decision was made to "add diversity to the workforce.”

Id. ¶ 4. Furthermore, the FAA used a non-validated Biographical Assessment (BA) to screen

new applicants. Id. ¶ 5.

This case is about the FAA’s lack of institutional veracity and repeated improper

attempts at withholding documents that are clearly subject to release and review. As the

FAA has failed to be upfront about the rationale or methodology of the new process,

Plaintiff is therefore utilizing the FOIA process to serve the public interest by sharing

records concerning the changes with those impacted by the action. Those impacted by the

FAA’s action are not a small subset of society – anyone who flies is adversely impacted by

the degradation of the national airspace system at the hands of those entrusted to ensure

safety. FAA Spokesman Mr. Molinaro stated that the purge was done to add “diversity to the

workforce.” Piercing the veil of administrative secrecy and opening up the FAA’s action to

the light of public scrutiny is particularly necessary in this case to ensure public safety.

Revealing the FAA’s intentional compromising of safety due to political correctness is the

type of action the FOIA law was meant to reveal.

Plaintiff was forced to file the underlying suit due to the FAA’s well practiced game

of administrative thimblerig and continual delay. In summary, the FAA states emails

involving an employee are corrupt and unreadable. FAA’s SOF (“FAA SOF”) ¶ 17. This

employee improperly released answers to an employment exam to a select group of

applicants prior to them taking the examination in an effort to gerrymander the hiring

process. PSOF ¶ 12. The FAA avowed that an email recovery attempt was performed, but


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media reports contradict the FAA’s assertions. FAA SOF ¶ 18. The FAA has failed to justify

withholding key documents concerning changes to the ATCS hiring process through its

failure to provide a Vaughn Index or declaration concerning records withheld. The FAA

alleges that emails sent from a federal email account, authored by the very individual

complicit in giving correct answers to select air traffic control applicants prior to the BA

examination, are not Agency records. Id. ¶ 48; PSOF ¶ 12. Furthermore, the FAA has failed

to show that it performed an adequate search for responsive records.

II. SUMMARY OF REQUESTED ITEMS

Race and Ethnicity Request (9349). On June 9, 2015, Plaintiff requested records

concerning ATCS applicant demographics. FAA SOF ¶ 1. Plaintiff challenged the FAA’s

response through the filing of an Amended Complaint (Pl’s Am. Compl. November 11,

2015). Parties agreed to resolve this request by providing raw data, vice a pre-compiled

table. PSOF ¶¶ 8-9. The FAA did not release the data until after it moved for summary

judgment. Id. ¶ 10. Plaintiff’s Controverting Statement of Facts (PCSOF) ¶ 1, 10. Plaintiff

has reviewed the records and this request is no longer an issue. Plaintiff asks this Court to

disregard this portion of the case as moot. Plaintiff has “substantially prevailed” within the

meaning of FOIA, as FAA released responsive records following the civil action. Id. ¶ 11.

As such, this should be considered when Plaintiff files his application for fees and costs.

Shelton Snow Request (9300). On June 25, 2015, Plaintiff requested email and chat

records for FAA employee Shelton Snow. FAA SOF ¶ 11. Mr. Snow provided select

individuals an unfair advantage by providing answers to the BA. PSOF ¶ 12. Plaintiff

challenges the adequacy of search, redactions, and withholdings. PCSOF ¶ 5. Plaintiff did

not get legible responsive documents until seven days prior to Defendant’s Motion for

Summary Judgment being filed. Id. ¶ 13. The FAA previously sent a set of illegible records.

Id. ¶ 14. PCSOF ¶ 8. Plaintiff challenges FAA’s withholding of records it deems not to be

“Agency records” and the discovery of corrupted emails. Media reports indicate significant


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differences between the FAA’s declarations and what actually occurred. Id. ¶ 15. PCSOF ¶

3-4.

Application Information Request (9333). On June 29, 2015, Plaintiff requested

records concerning guidance for the selection of applicants for federal employment, and

scores received and the threshold required to pass an employment exam known as the

Biographical Assessment (BA). FAA SOF ¶ 57. Plaintiff challenges the exemptions

invoked. The FAA has also failed to provide a declaration, affidavit, or Vaughn Index

justifying its withholding of responsive records.

III. LEGAL ARGUMENT

A. Plaintiff is Entitled to Limited Discovery

Plaintiff requests limited discovery in order to respond to the FAA’s Motion for

Summary Judgment. Rule 56(d) of the Federal Rules of Procedure prevents the FAA from

“railroading” Plaintiff into a premature motion for summary judgment. Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986). A party faced with a premature summary judgment

motion is required to file an affidavit “outlin[ing] the particular facts [it] intends to discover

and describe why those facts are necessary to the litigation.” Id. (citing Byrd v. U.S. Envtl.

Prot. Agency, 174 F.3d 239, 248 (D.C. Cir. 1999)). Plaintiff has attached such an affidavit to

this motion. See Exhibit 1.

Discovery in FOIA cases is permissible. See, e.g., Landmark Legal Found. v. Envtl.

Prot. Agency, 959 F. Supp. 2d 175 (D.D.C. August 14, 2013) (RCL) (permitting limited

discovery to address the adequacy of the search); Public Citizen Health Research Group v.

Food and Drug Admin., 997 F. Supp. 56, 72 (D.D.C. 1998) (RCL) (permitting discovery for

“investigating the scope of the Agency search for responsive documents, the Agency’s

indexing procedures, and the like”). The FOIA itself provides courts “jurisdiction to enjoin

the Agency from withholding Agency records and to order the production of any Agency

records improperly withheld.” 5 U.S.C. § 552(a)(4)(b) (2016).


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Limited discovery is appropriate in this case because the declarations submitted by

the FAA fail to answer important questions regarding the missing Sheldon Snow emails. In

addition, it has become apparent that the FAA did not undertake any significant efforts to

obtain the emails from alternative sources, nor promptly notify Plaintiff following the

discovery that the emails were missing. PSOF ¶ 16. The emails are potentially responsive to

Plaintiff’s FOIA requests and the FAA’s failure to search for them in other recordkeeping

systems raises material questions of fact about whether the FAA has conducted a reasonable

search. The limited discovery is necessary to enable Plaintiff and the Court to assess what

constitutes a reasonable search under the extraordinary circumstances of this case. As

recently stated by Judge Lamberth concerning email records belonging to former Secretary

Clinton:

“Plaintiff is not relying on “speculation” or “surmise” as the State Department claims. Plaintiff is relying on constantly shifting admissions by the Government and the former government officials. Whether the State Department’s actions will ultimately be determined by the Court to not be “acting in good faith” remains to be seen at this time, but plaintiff is clearly entitled to discovery and a record before this Court rules on that issue.”

See Memorandum and Order at 3, Judicial Watch, Inc. v. Department of State, No. 1:14-cv-

01242-RCL (D.D.C. March 29, 2016).

More problematic is the FAA’s failure to get their story straight. The FAA stated it

attempted to retrieve the Shelton Snow emails from “disaster recovery tapes from the

outside contractor,”, and that the “Agency’s Messaging Service Team informed

[Investigative Specialist] Mr. Maggard that they tried techniques to recover and retrieve the

data from the December 2013 disaster recovery tapes, but they were unsuccessful.” FAA

SOF ¶¶ 17-18.

Following the FAA’s Motion for Summary Judgment, Fox Business Network

contacted Mr. Maggard and Iron Mountain, which provides data storage services for the

FAA. Mr. Maggard stated that Iron Mountain attempted to recover and retrieve the data.


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Iron Mountain stated that it does not provide this service and that its third-party provider

“did not provide any type [of] recovery services for the FAA at that time”. PSOF ¶ 15.

The unusual circumstances of this case plainly warrant limited, focused discovery. As

Plaintiff explains in its accompanying Rule 56(d) affidavit, the limited matters of inquiry are

information on how the searches were performed, what records are missing, how the missing

records can be obtained from alternate sources and what efforts the FAA has or has not

undertaken to obtain the missing records from other sources. Questions also exist concerning

the FAA’s backup systems and its ability to search for responsive records. Further

clarification concerning the different “minimum passing scores” and “confusion” alleged

concerning the guidance material and scores is needed. At a minimum, Plaintiff should be

allowed to depose those who authored declarations in support of the FAA’s Motion for

Summary Judgment as well as those who allegedly performed the searches for the

information.

B. There Are Disputed Issues of Material Fact and the FAA is Not Entitled to Judgment as a Matter of Law

1. A Genuine Dispute Regarding Material Facts Exists and Defendant Did Not Conduct an Adequate Search

Defendant is not entitled to summary judgment because there are multiple issues of

material fact in dispute. The Court shall not grant summary judgment if there is “genuine

dispute as to any material fact.” Fed. R. Civ. P. 56(a). An Agency is not entitled to summary

judgment if it has not conducted an adequate search for the records in question. Zemansky v.

EPA, 767 F.2d 569, 571 (9th Cir. 1985). The FOIA defines search as being “to review . . .

Agency records for the purpose of locating those records which are responsive to a request.”

5 U.S.C. § 552(a)(3)(d) (2016). In responding to a request, an Agency must “exercise due

diligence” and shall make the requested records “promptly available.” 5 U.S.C. §

552(a)(6)(c)(i), 552(a)(3)(a) (2016). The Agency shall also “make reasonable efforts to

search for the records in electronic form or format.” 5 U.S.C. § 552(a)(3)(c) (2016).


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In this case, a material dispute exists wherein the FAA states that it attempted to

retrieve the Shelton Snow emails from “disaster recovery tapes from the outside contractor”,

but did not succeed. FAA SOF ¶¶ 17-18. Iron Mountain provides the data storage services

for the FAA. Upon being contacted by Fox Business Network, the FAA’s Investigative

Specialist, Mr. Maggaard, stated that it was Iron Mountain that attempted to recover and

retrieve the data. PSOF ¶ 15.

In contrast, Iron Mountain stated that it does not provide this service, and that its

third-party provider “did not provide any type [of] recovery services for the FAA at that

time”. Id. As in Judicial Watch, where the Judge allowed discovery, Plaintiff is relying on

constantly shifting admissions by the Government. See Memorandum and Order at 3,

Judicial Watch, Inc. v. Department of State, No. 1:14-cv-01242-RCL (D.D.C. March 29,

2016). With such contradictions, it calls into serious question what search if any the FAA

actually conducted to access those tapes, which have the emails requested. As a result, there

is a genuine dispute of material fact.

In addition to the evidence mentioned above, the record further shows that the FAA

has not adequately searched the records to succeed on summary judgment. The FAA failed

to address Plaintiff’s requests for Sheldon Snow’s “chats.” The FAA never informed

Plaintiff about whether they searched for relevant chats as requested in the FOIA request.

The FAA has also not justified its search or withholdings for the application guidance

material.

2. As a Matter of Law, The FAA is Not Entitled to Summary Judgment

A Court shall grant summary judgment only if “the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. Pro. 56(a). “[T]he burden is on the Agency to sustain its

action.” 5 U.S.C. § 552(a)(4)(b) (2016). The Supreme Court has “often noted “the Act’s goal

of disclosure” and insisted that exemptions be “given a narrow compass”” Milner v.

Department of Navy, 562 U.S. 562, 571 (2011) (citation omitted). The FAA did not justify


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for all the requested records that it withheld as required. The FAA failed to meet its burden

of justifying its withholdings under exemptions (b)(2), (b)(6), (k)(6) or establishing that the

withheld emails are not “Agency records.”

a. Defendant Failed to Justify Withholding Certain Agency Records

The FAA failed to provide certain requested records and did not provide justification

for doing so. The FOIA places a real burden on agencies, and despite its exemptions, it

“does not authorize withholding of information or limit the availability of records to the

public.” 5 U.S.C. § 552(d) (2016). It is not up to the discretion of an Agency as to whether it

will provide a justification or not. The case is replete with “self-vouching” in that the FAA

asserts that the withheld documents are not Agency records or meet and exemption to

disclosure yet fails to meet its burden in establishing the underlying premise. Conclusory

assertions, lacking in legal reasoning, are not a catch-all safe-haven allowing the Agency to

withhold records.

As emphasized earlier, Plaintiff requested the Sheldon Snow chats for the pertinent

period stated but, to this date, the FAA has not addressed Plaintiff’s request. Paradoxically,

the FAA stated that Lotus Notes emails from December 2013 were available in the January

archive. FAA SOF ¶ 18. However, the FAA failed to provide those that it did find

accessible. For example, “Daily Broadcast” emails were not included for every federal work

day from the December 2013, January 2014, and March 2014 periods in the FAA’s

production. PSOF ¶ 18. PCSOF ¶ 5. Daily Broadcast emails are, by the very nature of their

name, sent every work day to FAA employees. The failure to provide even a single Daily

Broadcast email indicates a failure to comply with the request, as the email would have been

responsive. This is indicative that other records for the same period are missing. PSOF ¶ 17.


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b. The FAA Does Not Sufficiently Justify Withholding Records Pursuant to FOIA Exemption B(2)

The FAA failed to meet its burden to sufficiently justify withholding records pursuant

to exemption b(2). The FOIA “does not apply to matters that are related solely to the internal

personnel rules and practices of an Agency.” 5 U.S.C. § 552(b)(2) (2016). “[I]nternal”,

meaning that “the Agency must typically keep the records to itself for its own use.” Milner

at 564. As the Supreme Court noted, “[t]his provision replaced an Administrative Procedure

Act (APA) exemption for “any matter relating solely to the internal management of an

Agency,” (citation omitted). Congress believed that the “sweep” of the phrase “internal

management” had led to excessive withholding, and drafted Exemption 2 “to have a

narrower reach.”” Id. at 562 (quoting Department of Air Force v. Rose, 425 U.S. 352, 362-

363 (1976), see also Maricopa Audubon Soc. v. U.S. Forest Service, 108 F.3d 1082, 1086

(9th Cir. 1997). The line “drawn is one between minor or trivial matters and those more

substantial matters which might be the subject of legitimate public interest.” Rose at 365

(quoting Vaughn v. Rosen, 523 F.2d 1136, 1142 (D.C. Cir. 1975). In the Rose case, the case

involved respondents seeking information on disciplinary systems and procedures. Id. at

354-55. The Supreme Court rejected the petitioner’s denial of “case summaries of honor and

ethics hearings, with personal references or other identifying information deleted.” Id. at

355, 358.

Like the military in Rose, the FAA’s activities revolve around the safety of the public

– especially in the selection and training of future air traffic control specialists (“ATCS”).

The quality and training of our ATCS’s is paramount to the publics’ safe air travels. It is

“significant” to have ATCS’s “able and ready” to be effective in carrying out their jobs. Id.

at 368. The weight of this reasoning heightened when investigations by both the media and

Congress calls into serious question the FAA’s ATCS hiring practices. PSOF ¶ 18.

While the Court wrote dictum in Milner implicating “interview applicants” under the

exemption, this case is distinguishable by the pressing public interest involved in attaining


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application information, which the Court contemplated in the Rose case. Milner at 563. As a

result, the FAA’s reasoning in withholding the scores and application guidance materials

through exemption (b)(2), does not overcome its burden to mandatory disclosure.

c. The FAA Fails to Sufficiently Justify Withholding Pursuant to FOIA Exemption (B)(6)

The FAA failed to meet its burden to sufficiently justify withholding all records

pursuant to exemption b(6). The exemption applies to “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of

personal privacy”. 5 U.S.C. § 552(b)(6) (2016). “Congress . . . made clear that non-

confidential matter was not to be insulated from disclosure merely because it was stored by

an Agency in its “personnel” files.” Rose at 372. The Court must balance the privacy interest

of individuals against the public interest. Yonemoto v. Department of Veterans Affairs, 686

F.3d 681, 694 (9th Cir. 2011). The relevant public interest is the extent to which the

disclosure of the information would shed light on an Agency’s performance of its statutory

duties or otherwise let citizens know what their government is up to. Bibles v. Or. Natural

Desert Ass’n., 519 U.S. 355, 355-56 (1997).

In the Rose case, The Supreme Court rejected arguments from the Navy that

producing the case summaries “could result in identifying cadets involved in Honor or

Ethics Code Violations.” 425 U.S. at 378. The Court noted that such privacy interests could

not be “rejected as trivial” yet the “policies underlying [FOIA]” and the lack of finding a

““clearly unwarranted” invasion of privacy” influenced the court to rule against the Navy as

it found none would result. Id. at 381.

If the potential revelation that could implicate one’s code of ethics for the sake of a

law review article was not enough to utilize exemption (b)(6), then neither does it pass

muster here. Here there is a much stronger public interest involved. The emails shed light on

Agency activities. There are numerous regulations that the FAA are required to follow when

selecting controller applicants. Failure of a government Agency to engage in a fair, equal


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and open competition creates constitutional concerns. The documents disclosed indicate that

private emails were used by Agency employees to discuss the Fox business investigation

and airing. PSOF ¶ 19. Officials should not be able to hide from the grasp of FOIA through

the use of personal email accounts and “self-vouching”. Furthermore, Mr. Snow sent himself

the “Barrier Analysis”, which evaluated the FAA’s hiring practices during the period the

records were requested by Plaintiff. PSOF ¶ 20. Mr. Snow was possibly connected with the

issues involving the changes and possibly improperly influenced the new hiring process.

PSOF ¶ 21.

The responsive emails Mr. Snow sent or received through his personal email accounts

should not be subject to Exemption 6 as there is a public interest in the data that outweighs

the personal interest. Public interest exists in knowing the activities of Mr. Snow in the wake

of the changes to the hiring process. Mr. Snow is on tape notifying select applicants that he

would provide answers to the BA. Assisting applicants with cheating on an occupation test

in a safety related vocation such as air traffic control certainly compromises public safety.

PSOF ¶ 12. Mr. Snow’s emails sent or received through his personal email accounts are

highly relevant and it is suspicious that the FAA withheld approximately 39 instances of

them. At a minimum, this Court should undertake an in-camera review of the records

withheld to verify the FAA’s assertions.

Plaintiff contests that the FAA’s redactions of all personal email addresses. The

Agency should be required to provide the email, or in the alternative, the name of the

individual the email was sent to or received by. The Agency has previously done so, on

appeal, for a similar circumstance, FOIA 2015-009228. PSOF ¶ 22.

d. The FAA Failed to Justify Withholdings Pursuant to Privacy Act Exemption (K)(6)

With regards to the scores, the FAA does not sufficiently object to its disclosure

under Exemption (k)(6). The act states that “[t]he head of any Agency may promulgate rules

. . . to exempt [a] system of records [that] . . . is testing or examination material used solely


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to determine individual qualifications for appointment or promotion in the Federal service

the disclosure of which would compromise the objectivity or fairness of the testing or

examination process.” 5 U.S.C. § 552a(k)(6) (2016). The score required and score received

on an employment exam are not “examination material.” The FAA missed the mark and

discussed release of the weighting criteria in its Vaughn Index and Declaration (FAA

Exhibit 2, ¶ 20), however Plaintiff has requested only the minimum passing score and score

received. Plaintiff is requesting scores – not the exam itself. FAA SOF ¶ 57. The scores

themselves do not allow an applicant to inflate a score nor do they compromise objectivity

or fairness as the criteria concerning weighting has not been requested. PCSOF ¶ 16-17. The

FAA has previously released the information concerning scores required and received.

PSOF ¶ 23. Releasing the scores would actually increase fairness, as it would allow

individuals to see their score on the pass/fail examination. It would also ensure that the cut-

off or minimum score necessary to pass the BA was applied equally across all applicant

pools. There is no fairness if different applicant groups had different passing scores and

therefore were treated unequally.

The FAA’s continued use of the AT-SAT examination, for which scores have always

been produced, demonstrates that there is no “threat to the integrity… … of the overall

ATCS selection process” (FAA SOF ¶ 72) as a result of the release of the BA scores. The

entire purpose of this civil action is to demonstrate that the new hiring process lacks

integrity and therefore compromises public safety. Additionally, the FAA continues to

disclose the scores received and required while training at Oklahoma City. The FAA is

relying on extreme possibilities to withhold the information, citing reverse engineering the

scoring key, which is not possible from the score received and the score obtained figures

alone. FAA Exhibit 2, ¶ 18. Plaintiff isn’t asking for the key.

Furthermore, the FAA cites cost savings as a reason for failing to disclose. FAA

Exhibit 2, ¶ 19. The FAA’s cost estimates are not accurate as the FAA could have used the

previous hiring system wherein only individuals from an FAA approved university or


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college took the AT-SAT, versus having everyone who takes the BA take the AT-SAT, as

the FAA is attempting to use that figure in its cost estimate. The FAA’s assertion that it

would be difficult to release scores broadly is also false (FAA Exhibit 2, ¶ 14) as the FAA

has previously released scores and provided data from USAJobs concerning demographics

to Plaintiff. Further, Cannon’s argument would therefore mean that the FAA manually

reviewed scores. In addition to all of this, the FAA has changed the test it used for

assessment of ATCS and is likely to change it again. In 2014, it used the BQ, in 2015, the

BA. The next cycle will likely follow a revised process.

e. The FAA Does Not Sufficiently Justify Withholding the 181 Emails Under the Claim That They Are Not Agency Records

The FAA improperly withheld 181 Agency record emails that must be disclosed. The

Supreme Court defined Agency Record as a material that the Agency must either create or

obtain, and must be in control of at the time of the request. U.S. Dept. of Justice v. Tax

Analysts, 492 U.S. 136, 144-45 (1989). Agency records also include “information . . .

maintained for an Agency by an entity under Government contract, for the purposes of

records management.” 5 U.S.C. § 552(f)(2)(b) (2016).

In Tax Analysts, the respondent in that case sought federal district court decisions

from the Tax Division of the Justice Department “that it receives in the course of litigating

tax cases”. 492 U.S. at 136. The Supreme Court ruled that the FOIA required the Justice

Department to make them available. Id. The Court reasoned that it was not relevant

“whether the organization” from which the document originated is covered by FOIA. See

Tax Analysts at 146. Also the fact that the decisions were in the “Agency’s possession” was

enough to show it “clearly control[led]” the decisions. Tax Analysts at 146. The Supreme

Court rejected efforts to analyze “the intent of the creator of a document” as it “is nowhere

to be found in the Act” and that “discerning intent . . . may often prove an elusive endeavor.”

Id. at 147-148.


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In this case, the records requested from the Proofpoint system were created as soon as

Mr. Snow sent the email from Outlook. PSOF ¶¶ 24-25. PCSOF ¶ 10. The FAA obtained the

emails through its email system and has them either through Iron Mountain or its own email

storage. The FAA claims that records were not integrated in the FAA’s recordkeeping

systems. FAA’s SOF ¶ 56. The FAA’s email retention database, Proofpoint, retains the

email messages sent by Agency employees even if the employee deletes the email. PSOF ¶

24-25. PCSOF ¶ 12, 15. As a result, the emails meet the two requirements enumerated by

the Supreme Court. Mr. Snow as an FAA employee using an @FAA.gov email address sent

or received the record email and the FAA has possession of the record email. Therefore, the

181 emails are in fact Agency records that should be disclosed.

Because of the FAA’s failure to justify withholding of all the records requested, the

FAA’s insufficient justifications under FOIA exemptions (b)(2) and (b)(6) as well as Privacy

Act Exemption (k)(6), and the fact that the 181 emails are Agency records, the FAA is not

entitled to summary judgment as a matter of law.

IV. CONCLUSION

The spirit and intent of the Freedom of Information Act is to pierce the veil of

administrative secrecy and open Agency action to the light of public scrutiny. Agency

actions that compromise public safety and then attempts to cover up illegal activities must be

revealed for the sanctity of our democratic system. For the foregoing reasons, Defendants’

Motion for Summary Judgment should be denied and Plaintiff’s Cross Motion for Summary

Judgment should be granted. In the alternative, the Court’s ruling should be stayed pending

discovery and Plaintiff’s request for discovery involving depositions as to those involved in

the record search and providing declarations, requests for admissions, and the subpoenaing

of email communications from Iron Mountain granted.

/ / /


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RESPECTFULLY SUBMITTED this 30th day of March, 2016. CURRY, PEARSON & WOOTEN, PLC /s/ Michael W. Pearson Michael W. Pearson Kyle B. Sherman 814 W. Roosevelt St. Phoenix, AZ 85007 Attorney for Plaintiff ORIGINAL of the foregoing filed with the Clerk of the Court this 30th day of March, 2016. COPY of the foregoing mailed this same date to: John S. Leonardo United States Attorney Paul A. Bullis Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue Suite 1200 Phoenix, Arizona 85004-4408 Attorneys for Defendants /s/ Christine L. Penick


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PLAINTIFF’S CONTRAVERTING STATEMENT OF FACTS AND

SEPARATE STATEMENT OF FACTS IN SUPPORT OF RESPONSE TO

DEFENDANTS’ MOTION TO SUMMARY JUDGMENT, PLANTIFF’S

CROSS-MOTION FOR SUMMARY JUDGMENT AND MOTION FOR

DISCOVERY


PLAINTIFF’S CONTRAVERTING STATEMENT OF FACTS

Plaintiff Jorge Alejandro Rojas, through undersigned counsel, submits his

Controverting Statement of Facts and Separate Statement of Facts in Support of his Response

to Plaintiff’s Motion for Summary Judgment, Plaintiff’s Cross-Motion for Summary

Judgment and Plaintiff’s Discovery Motion. The facts of record show the impropriety and

inaccuracies of Defendants’ Statement of Facts. The controverting facts support a finding that

Defendants are not entitled to summary judgment, and that Defendants’ Motion for Summary

Judgment (Dkt. 19) must therefore be denied. These inaccuracies also support a finding that

Defendant is not eligible for summary judgment for this Freedom of Information Act (FOIA)

action as Defendants’ statements are controverted. Military Audit Project v. Casey, 656 F.2d

724, 738 (D.C. Cir. 1981).

Case 2:15-cv-01709-GMS Document 22 Filed 03/30/16 Page 1 of 9

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Race and Ethnicity Request (9349)

1. Plaintiff denies ¶ 5 of Defendants’ Statement of Facts (SOF). The FAA did not

provide all responsive records it has available relevant to the initial FOIA request. Dkt. 20-2

at Exhibit 1; Att N (ROJAS-FAA-93-95). The resulting FOIA response for 2015-009349

was missing key information requested, including the ethnicity of those within the “Hispanic

or Latino” race.

2. Plaintiff denies ¶ 10 of Defendants’ Statement of Facts (FAA SOF). The FAA did not

provide all responsive records it has available relevant to the initial FOIA request. Id. The

resulting FOIA response for 2015-009349 was missing key information requested, including

the ethnicity of those within the “Hispanic or Latino” race.

Snow Request (9300)

3. Plaintiff denies ¶ 17 of Defendants’ SOF. Plaintiff requires discovery to obtain

additional facts concerning the process which the FAA attempted to obtain archived emails.

Based on currently available information, the Agency was not able to identify the December

2013 archive as unreadable and corrupted, as the FAA has made statements to the press which

contradict Iron Mountain, the provider of the data storage services. Exhibit A. Fox Business

Network – FAA Contradicts Court Documents Related to Emails Article.

4. Plaintiff denies the first sentence of ¶ 18 of Defendants’ SOF. Plaintiff incorporates ¶

3 of this CSOF by reference as if fully restated herein.

5. Plaintiff denies the second sentence of ¶ 18 of Defendants’ SOF. Based on a review of

responsive records concerning the Shelton Snow email request, “Daily Broadcast” emails for

December 2013 are missing. This is indicative that there are records which should have been

provided, as, by the nature of the name “Daily Broadcast”, these are sent every federal work

day. Therefore, while the January 2014 archive may have contained December 2013 emails,

those records were not provided, as evidenced by searching “Dec 2013” in the record

production. Dkt. 20-2. Exhibit 1. Att Q. ROJAS-FAA-128-1051.


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6. Plaintiff denies ¶ 19 of Defendants’ SOF. The FOIA request is 2015-009300, not 2016-

009300 (emphasis added). FAA SOF ¶ 4. Furthermore, because Defendants have failed to

show a complete and adequate search, per ¶ 5 above, Plaintiff denies Defendants’ fact that

responsive records were properly provided.

7. Plaintiff denies ¶ 20 of Defendants’ SOF. The FAA’s record production for request

2015-009300 clearly demonstrates that all emails are of the same format, layout, and style. As

the FAA notes, the emails were on two different systems for the timeframe requested. FAA

SOF ¶ 15. It is unlikely that a complete search of both Lotus Notes and Microsoft Outlook &

Proofpoint was conducted as if both sets of systems were searched, differently styled emails

would have been provided. Dkt. 20-2. Exhibit 1. Att Q. ROJAS-FAA-128-1051.

8. Plaintiff denies ¶ 21 of Defendants’ SOF. On February 9, 2016, the FAA provided a

record set different than that introduced in the docket. Dkt. 20-2. Exhibit 1. Att Q. ROJAS-

FAA-128-1051. Exhibit B – Select example page from Defendants’ Initial Email Production.

Specifically, the FAA provided emails which were illegible and unreadable. The FAA did not

provide proper responsive records until on or about February 22, 2016. Plaintiff therefore

makes this Court aware that Defendant is misrepresenting the documents it provided Plaintiff,

as the documents listed in Defendants’ Vaughn Index weren’t provided until February 22,

2016.

9. Plaintiff denies ¶ 24 of Defendants’ SOF. The FOIA request is 2015-009300, not 2016-

009300 (emphasis added). FAA SOF ¶ 4. Plaintiff also disagrees with the characterization of

the 181 emails not being Agency records.

10. Plaintiff denies the first sentence of ¶ 53 of Defendants’ SOF. The record of the email,

including the email itself, was created in the Proofpoint system as soon as Mr. Snow sent or

received the email in Outlook, as per Agency policy. Exhibit C. EMS365, page 2. Exhibit D.

Proofpoint Manual, page 5.

11. Plaintiff denies the second sentence of ¶ 53 of Defendants’ SOF. Plaintiff asserts that

the 181 emails are Agency records. In any case, Mr. Snow has sent Agency documents to


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outside individuals, which he would need Agency approval to do – yet he likely did not have

the approval. This lack of approval is evidenced by Mr. Snow sending the Barrier Analysis to

his National Black Coalition of Federal Aviation Employees (NBCFAE) email, as well as to

an undisclosed personal email account outside the Agency, yet the Agency’s record

production does not show any correspondence regarding an approval to send said document.

Defendant’s Email Production, ROJAS-FAA-000210, Dkt. 20-3.

12. Plaintiff denies the third sentence of ¶ 53 of Defendants’ SOF. Mr. Snow did not have

complete control of the Proofpoint records, as evidenced by his inability to delete records from

it. Exhibit C. EMS365, page 2. Exhibit D. Proofpoint Manual, page 5.

13. Plaintiff denies the second sentence of ¶ 54 of Defendants’ SOF. Evidence of Mr. Snow

using the email to conduct agency business is evident throughout the record production. A

specific example is when Mr. Snow requests a call from Mr. Coulter, who, according to the

FAA directory, is an FAA employee. Dkt. 20-2, ROJAS-FAA-000045. Exhibit E. FAA

Directory Listing. Furthermore, if Mr. Snow had not been using his agency email for personal

business, he would have used his personal email to send or get the email.

14. Plaintiff denies ¶ 55 of Defendants’ SOF. Plaintiff incorporates ¶ 13 of CSOF by

reference as if fully restated herein. Furthermore, the FAA’s policy concerning “limited

personal use of the agency’s email system” prohibits “using FAA resources for … financial

gain or in support of outside individuals or entities; engaging in unauthorized fundraising,

lobbying or political activities; etc.” See Exhibit F. Human Resources Policy Manual (HRPM)

Volume 4: Employee Relations ER-4.1, page 5. NBCFAE activities are evidently in support

of outside individuals or entities.

15. Plaintiff denies ¶ 56 of Defendants’ SOF. The FAA was required by its own policies

to retain all messages sent or received from Outlook in Proofpoint. Exhibit C. EMS365, page

2. Exhibit D. Proofpoint Manual, page 5.


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16. Plaintiff denies ¶ 67 of Defendants’ SOF. It is mathematically impossible for an

individual to obtain the answer key based on the score received and the minimum passing

score.

17. Plaintiff denies ¶ 68 of Defendants’ SOF. Plaintiff’s request did not ask for the basis

for scoring and weighting of the questions. FAA SOF ¶ 57.

18. Plaintiff denies ¶ 72 of Defendants’ SOF. It is mathematically impossible for an

individual to obtain the answer key based on the score received and the minimum passing

score.

19. Plaintiff makes this Court aware of the supplemental production noted in ¶ 73 of

Defendants’ SOF. Plaintiff maintains that the FAA was required to support its withholding

and justify its search through a Vaughn Index and a Affidavits.

PLAINTIFF’S SEPARATE STATEMENT OF FACTS

Plaintiff submits this Statement of Facts in Support of in Support of his Response to

Plaintiff’s Motion for Summary Judgment, Plaintiff’s Cross-Motion for Summary Judgment

and Plaintiff’s Discovery Motion.

1. The Federal Aviation Administration (FAA) changed the hiring practices for Air

Traffic Control Specialists (ATCS) in December of 2013, taking in to effect in February 2014.

Exhibit 1. FAA, “ATC Hiring – Stakeholder Briefing on Hiring, Slide 2. Process”. Exhibit 2.

FAA Letter to Collegiate Training Initiative Schools Graduates.

2. The FAA changed the policy to only requiring a four-year degree in any field, or three

years of work experience, or a combination of both. Exhibit 2. FAA Email to Collegiate

Training Initiative Schools Graduates, page 1. Previously the FAA used to hire from a group

of schools approved by the Agency, offering aviation specific education. Exhibit 3. FAA, “Air

Traffic Collegiate Training Initiative (AT-CTI)”, 8/10/2011 to 2/25/2014 Website, page 1.

3. The new practices included removing a list of about 2,000-3,000 individuals who were

on a Qualified Applicant Register or other list of candidates. Individuals were negatively


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impacted as they were forced to reapply under the new hiring system and not all were selected.

Exhibit 4. National Black Coalition of Federal Aviation Employees “ATC Hiring update from

the National President”, page 1.

4. FAA Spokesman Tony Molinaro, said the FAA’s decision to modify the hiring process

was “to add diversity to the workforce”. Exhibit 5. INFOURM – Want to be an air traffic

controller? UND says FAA has ‘dumbed down the process’, page 1.

5. The FAA’s biographical test used to select candidates was not adequately validated.

Exhibit 6. Air Traffic Control Hiring and Training Barrier Analysis Support Services

Feedback and Recommendations – May 7, 2014, page 3.

6. Plaintiff, thru undersigned Counsel, contacted Defendants’ Counsel prior to the filing

of Defendants’ Motion for Summary Judgment. Defendants indicated that responsive

documents for the request would be provided shortly. Exhibit 7. Email between Paul A. Bullis

(AUSA) and Michael Pearson, page 1.

7. Defendants’ previous production of records was inadequate, as it did not specify all of

the data Plaintiff requested (Dkt. # 16).

8. Plaintiff, thru undersigned Counsel, contacted Defendants’ Counsel prior to the filing

of Defendants’ Motion for Summary Judgment. Defendants indicated that responsive

documents for the request would be provided shortly. Exhibit 7. Email between Paul A. Bullis

(AUSA) and Michael Pearson, page 1.

9. Defendants’ previous production of records was inadequate, as it did not specify all of

the data Plaintiff requested (Dkt. # 16).

10. Plaintiff did not receive raw data for the request until after it received Defendant’s

Motion for Summary Judgment. Exhibit 16 Rojas Affidavit at ¶ 4.

11. Plaintiff is now satisfied with the FOIA request response, as a result of the raw data

release. Plaintiff contends that he has substantially prevailed and will later move for fees in

this action, as the FAA did not release documents and was not processing the request until

after suit was filed. Exhibit 16 Rojas Affidavit at ¶ 5.


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12. Mr. Shelton Snow is an individual alleged to have released answers to the biographical

assessment. Exhibit 8. Fox Business Network – Trouble in the Skies Article, page 5.

13. On February 22, 2016, Plaintiff received a legible set of records. Exhibit 9. FOIA

Response 2015-009300 Revised Response Letter.

14. On February 11, 2016, Plaintiff received a set of illegible records concerning the

subject FOIA request. Exhibit 2.

15. Media reports from Fox Business demonstrate differences between what the FAA

stated via declaration and what was said to the media. Specifically, FAA employees’

statements in declarations and the statements to Fox contradict Iron Mountain’s statements

concerning the records and the alleged restoration process. Exhibit 10. Fox Business Network

– FAA Contradicts Court Documents Related to Emails Article.

16. The FAA did not notify Plaintiff of the corrupt records until it moved for summary

judgment. Exhibit 16 Rojas Affidavit at ¶ 6.

17. The FAA failed to provide records for portions of or the entirety of December 2013,

January 2014, and March 2014. This is evidenced by the lack of “Daily Broadcast” emails in

Defendants’ production, which are sent every work day. Exhibit 16 Rojas Affidavit at ¶ 7.

18. Congress and the media have conducted investigations and inquiries concerning the

FAA’s new hiring practices for ATCS. Exhibit 11. Sample of Congressional Inquiries &

Media Reports.

19. Private emails were utilized to discuss press inquiries from Fox, prior to the Fox expose

on the changes to the hiring process and the cheating by Mr. Snow, based on the b(6)

withholding. Exhibit 9. FOIA Response 2015-009300 Revised Response Letter and Record

Sample, page 2. Defendant’s Vaughn Index, ROJAS-FAA-000013, Dkt. 20-2.

20. Mr. Snow sent an email to a personal email – an email address that is redacted, with a

copy of the barrier analysis. Defendant’s Email Production, ROJAS-FAA-000210, Dkt. 20-3.

21. Mr. Snow was connected to the issues concerning the changes to the hiring process as

evidenced by emails in which he is mentioned or involved in and which involve discussions


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concerning the new hiring process. Exhibit 12. Mr. Snow Correspondence. Exhibit 8. Fox

Business Network – Trouble in the Skies Article, page 5.

22. The FAA has previously admitted a public interest exists in the disclosure of employees

who used personal email accounts, and has compiled a listing of names in response to a FOIA

appeal for a b(6) redaction. Exhibit 16 Rojas Affidavit at ¶ 8.

23. The FAA has previously notified applicants for ATCS positions of the score received

and score required for employment examinations. Exhibit 13. AT-SAT Results for three

individuals

24. The agency Proofpoint system creates record entries based on the Outlook emails sent

or received. Exhibit 14. FAA – EMS365.

25. The Proofpoint system retains records for five years. Exhibit 15. FAA – Proofpoint

User Manual, page 5.

RESPECTFULLY SUBMITTED this 30th day of March, 2016.

CURRY, PEARSON & WOOTEN, PLC /s/ Michael W. Pearson Michael W. Pearson Kyle B. Sherman 814 W. Roosevelt St. Phoenix, AZ 85007 Attorney for Plaintiff / / /


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ORIGINAL of the foregoing filed with the Clerk of the Court this 30th day of March, 2016. COPY of the foregoing mailed this same date to: John S. Leonardo United States Attorney Paul A. Bullis Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue Suite 1200 Phoenix, Arizona 85004-4408 Attorneys for Defendants /s/ Christine L. Penick


EXHIBIT 1


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JORGE ALEJANDRO ROJAS AFFIDAVIT REGARDING

DISCOVERY


I, Jorge Alejandro Rojas, swear as follows:

1. I am the Plaintiff in this matter and have information concerning this case as a result of

my involvement with Defendants, Defense Counsel and my counsel.

2. If called to testify as a witness in this case, I will be able to testify as to each statement

enumerated herein.

3. This affidavit is written in support of Plaintiff’s Motion for Discovery, in compliance

with Rule 56(d), which requires a declaration in support of a request for discovery.

4. At a minimum, Plaintiff requires depositions from those who have submitted

declarations in support of the Agency’s position and of any additional individuals who

participated in the agency’s search efforts and issuance of subpoenas to the Agency’s email

repository, Iron Mountain.


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5. The questions above are important to the instant action as questions of material fact

exist concerning the truthfulness of the current declarations and additional clarification is

needed concerning the statements put forth in the declarations.

6. As to request 9300, I require discovery to obtain facts concerning the alleged corruption

of important emails in this matter.

7. The discovery requested would include depositions from individuals responsible for

the Agency’s information technology storage, including outside contractors. Questions

concerning the process by which Defendant attempted to recover and restore emails will be

asked, including questions about the scope of the loss of emails, other avenues for recovery,

and the process by which emails were lost.

8. The requested discovery would also concern the search for chats in Shelton Snow’s

account. Defendant never addresses if the search of chats was conducted. Therefore, a

declaration from the individual who searched Mr. Snow’s chats, per the initial request, will be

sufficient. If the search has not been conducted, a declaration will be needed after an

appropriate search is made.

9. The questions above are important to the instant action as questions of material fact

exist concerning the current adequacy of the search, in light of the government’s recent

statements to the media concerning the course of events concerning the corrupt emails, and its

failure to address a search being conducted of Mr. Snow’s chats.

10. As to request 9333, discovery will include depositions of Rickie Cannon, Agency HR

department personnel, concerning his statement regarding different “applicant groups” getting

different minimum passing scores. This is important in this matter as it appears the Agency is

engaging in activity prohibited by the Civil Rights Act and FOIA has been designed to allow

the public to check The Government’s actions in matters such as this.

11. Discovery, if approved, will also be conducted for the portion of the request concerning

application guidance material, in which Plaintiff will request a Vaughn Index and supporting

declaration to justify withholding of records and the adequacy of search.


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12. The questions above are important to the instant action as clarification concerning the ·

previous Cannon Declaration is needed.

I swear or affirm under penalty of perjury under United States laws that to the best of

my knowledge, the forgoing is true and correct. 28 U.S.C. sec. 1746; 18 U.S.C. sec. 1621.

Executed this 3 !51 day of March, 20 16.

Jorge Alejandro Rojas

Subscribe d, sworn to and acknowledged before me by Jorge Alejandro Rojas, this 31st day of March , 20 16.

Notary Public:

My Commission Exp ires:

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EXHIBIT A

Case 2:15-cv-01709-GMS Document 22-1 Filed 03/30/16 Page 1 of 149

3/28/2016 FAA Contradicts Court Documents Related to Emails | Fox Business

http://www.foxbusiness.com/politics/2016/03/07/faa-contradicts-court-documents-related-to-emails.html 1/2

FAA Contradicts Court Documents Related to Emails |Fox Business

The Federal Aviation Administration is giving conflicting accounts of what may have happened to crucialemails at the center of its air traffic control cheating scandal, the FOX Business Network has learned.

As reported by FOX last week, the FAA admitted in motions filed in Federal District Court in Arizona statethat some of the tapes which record and store email communication between FAA employees are“corrupted” and unrecoverable.

The motions include a document titled Declaration of Daniel Maggard, who is an investigative specialist inthe Digital Media Analysis Unit of the FAA. According to his declaration, the agency used two differentemail systems, one of which was Lotus Notes. As first reported by FOX’s “Trouble in the Skies”investigation last year, air traffic control candidates suing the FAA have requested, through the Freedom ofInformation Act (FOIA), the release of emails from the Lotus Notes system from December 1, 2013 throughApril 23, 2014.

According to Maggard, “The Lotus Notes email records are retrieved from disaster recovery tapes andstored with an outside contractor…The Lotus Notes Archive for December of 2013 was unable to retrievedata and was identified as unreadable and corrupted.” The Maggard declaration goes on to state, “TheAgency’s messaging Service Team informed me that they tried several techniques to recover and retrievethe data from the December 2013 disaster recovery tapes, but they were unsuccessful.”

FOX Business called Daniel Maggard on Wednesday March 2, 2016 and asked him to identify who “The




Agency’s Messaging Service Team” referred to. Maggard responded, “Iron Mountain.”

Iron Mountain (IRM), an international firm that stores data tapes, tells a different story. In a statement toFOX Business;

“Iron Mountain does provide data backup tape storage for the FAA, but does not do any data recovery ordata restoration services for the FAA (or any of its customers).....

“Iron Mountain does provide data backup tape storage for the FAA, but does not do any data recovery ordata restoration services for the FAA (or any of its customers); instead, we utilize a third-party provider forthose services. We have reviewed our tape delivery records for the FAA – and the service records for ourthird-party recovery provider – and confirmed that we did deliver tapes back to the FAA as stated in themotion; however, our third-party provider did not provide any type [of] recovery services for the FAA at thattime.”

– Iron Mountain, March 7, 2016

In response, the FAA tells FOX Business, “We have no response at this time because of pending litigation."

Sponsored Stories You May Like

- Iron Mountain, March 7, 2016


EXHIBIT B


2 l w o r y2015 Employee Viewpoint Survey

FFrom Administrator Michael Huerta <adminis rator_michael_huerta%faa@faa gov>

BBcc "Snow Shelton (FAA)" <shelton snow@faa gov>

D eDate Thu 07 May 2015 13 31 32 -0400

Co eagues,

This week, 24,000 FAA emp oyees wi eceive an emai invitation to pa ticipate in the 2015 Fede a Emp oyee Viewpoint (FedView) Su vey administe ed by the O iceo Pe sonne Management (OPM)

The FedView Su vey gives you an oppo tunity to make you voice hea d about the ob you do, ou o ganization, and the wo k envi onment t a so gives you anoppo tunity to te management and eade ship what is impo tant to you

Th ough ast yea ’s esu ts, you to d us we need to bette sustain a wo kp ace cu tu e that is engaged and inc usive cha enged my senio eade ship team toimp ove emp oyee engagement and bette demonst ate ou commitment to you, and to imp ove ou wo kp ace

Ou eade s p ay a c itica o e in bui ding a high y engaged wo k o ce and cu tu e Th ough ou Wo k o ce o the Futu e st ategic initiative, we a e t ans o mingagency eade ship p actices to st engthen engagement FAA’s eade ship deve opment st ategy emphasizes capabi ities such as deve oping othe s, co abo ation andinnovation, and va uing dive sity and inc usion

This goes hand in hand with the stand up o the FAA Leade ship and Lea ning nstitute (FLL ) and integ ation o these capabi ities into new eade ship deve opmentp og ams We’ve a so imp oved ou onboa ding p og am to engage and connect with emp oyees om thei i st day with the agency, beginning with an unde standingo how thei ob cont ibutes to the ove a success o the FAA

isten ca e u y to you input and insight You esponses to this su vey p ovide impo tant eedback o you espective eade ship teams and in o m how we shapeou wo k o ce tomo ow and into the utu e

Those eceiving the FedView emai have unti June 15th to submit esponses, and can dedicate up to an hou o o icia duty time to p ovide eedback Fo mo ein o mation on the su vey, visit the 2015 FAA FedView Su vey page

Sec eta y Foxx and encou age you pa ticipation in this yea ’s FedView Su vey, and ook o wa d to hea ing you pe spectives

Michae


EXHIBIT C


3/1/2016 EMS365

https://my.faa.gov/tools_resources/info_technology/ems.html#3 1/4

EMS365

StatusFor More InformationEMS365 is more than just email...Where can I get help?What training is provided?A Few Reminders

Status

Email Migrations are CompleteAll scheduled mailbox migrations, including individual and shared functional/group accounts, have beencompleted. For any remaining operational Lotus Notes email accounts, please contact your national IT HelpDesk (https://my.faa.gov/tools resources/info technology.html) and request it be provisioned in EMS365.

Users of shared group/functional mailboxes should continue to access their shared mailboxes using theirindividual EMS365 user credentials through Outlook Web App (OWA) (https://email.dot.gov/) .

Please contact your national IT Help Desk (https://my.faa.gov/tools resources/info technology.html) for anyproblems, issues, questions, etc., regarding EMS365.

Back to top

For More InformationRead our Shared Mailbox Migrations FAQs(https://my.faa.gov/tools_resources/info_technology/ems/shared_mailbox_faqs.html) .Watch the 30-minute video (https://employees.faa.gov/tv/?mediaId=1023) that includes a demonstrationto access and bookmark your shared group/functional mailboxes using OWA (https://email.dot.gov/) .Search the online EMS365 FAQs (https://employees.faa.gov/tools_resources/info_technology/ems365/#faq) bykeyword for answers to questions on migration, webmail, smartphones or online archives related toindividual user accounts.


3/1/2016 EMS365


Back to top

EMS365 is more than just email......it is an office productivity tool. This cloud-based system features Outlook 2010 for email, calendaring andcontact management as well as Lync 2010 as the instant messaging and eventual online meetingreplacement for SameTime. It also features Proofpoint to automatically archive all email messages you sendor receive for up to 5 years, and you can access it online.

Both Outlook and Lync offer an enhanced feature set and more capabilities over what was previouslyavailable. They also offer improved functionality across many of the Microsoft Office 2010 products you'realready using, like Word, Excel and Powerpoint. Learn more(https://my.faa.gov/tools resources/info technology/ems/Benefits.html)

Back to top

Where can I get help?For problems with EMS365 (e.g., Outlook doesn't work, you keep getting error messages or have accessissues), please contact your Help Desk (https://my.faa.gov/tools resources/info technology.html) .

When you're trying to personalize your email, set up your out of office status, or have questions about how touse any of new EMS365 features, check out the online EMS365 Training archive(https://my.faa.gov/tools resources/info technology/ems/Training.html) .

Back to top

What training is provided?Get started on the path to improved productivity by learning how to use the full suite of office tools byreviewing available How-To tutorials, videos, manuals and self-help courses. EMS365 training resourcescome in a variety of formats to support your individual style of learning. Learn More(https://my.faa.gov/tools resources/info technology/ems/Training.html)

Back to top

A Few RemindersAutomatic replies to users outside of EMS365 are blocked. For instance, out-of-office replies to partnerorganizations outside the FAA domain are not being delivered.Until further notice, users of shared functional/group accounts must use Outlook Web App (OWA)(https://email.dot.gov/) to access the functional/group account through their individual (personal) EMS365email account.Unless a legal hold is placed on an account, the retention period for EMS365 data is five years. Data willbe automatically deleted once the retention period is reached.Users should keep their network & eCenter credentials (userid/password) active. A help desk ticket is


3/1/2016 EMS365


needed if your credentials become deactivated. OWA access depends upon network credentials.Users should keep their profile current and accurate. Team calendars in EMS365 depend upon accurateprofile information.Transend can still be used to convert your local Lotus Notes archives into a format useable by EMS365Outlook. If formatting or other anomalies occur with the conversion, please refer back to Lotus Notes forthe original copy. Transend cannot be used for shared group/functional archives.Lotus Notes Sametime (through eCenter (https://ecenter.faa.gov/appspub/national/ecenter.nsf?Open) ) continuesto be the official solution for online meetings.User actions to incorporate add-ons are discouraged.

Back to top

Page Last Modified: 01/11/16 12:38 EST

OWA Shared Mailbox GuidesHow to Open a Shared Account in OWA (PDF)How to Bookmark a Shared Account in OWA (PDF)How to Create & Use Templates in OWA (PDF)How to Share Contacts or Groups in OWA (PDF)How to Open Proofpoint Archives in OWA (PDF)

Quick Reference GuidesAccessing OWA from Home (PDF)Accessing OWA from FAA Office (PDF)Outlook - Creating a Meeting (PDF)OWA - Creating a Meeting (PDF)QRC - Adding Rooms & Resources (PDF)Outlook Mail (PDF)Outlook Calendar (PDF)OWA - Mail (PDF)OWA Calendar (PDF)Inbox & Calendar Permissions (PDF)Lync - Instant Messaging (PDF)

FAQsFrequently Asked Questions (https://employees.faa.gov/tools_resources/info_technology/ems365/#faq)


3/1/2016 EMS365


This page can be viewed online at: https://my.faa.gov/tools_resources/info_technology/ems.html

Take a tour of EMS365 features (https://employees.faa.gov/tv/?mediaId=880)

User Instruction ManualsOutlook User Manual (PDF)OWA User Manual (PDF)Lync User Manual (PDF)Proofpoint Archives User Manual (PDF)

TrainingOutlook (https://my.faa.gov/tools_resources/info_technology/ems/Training/outlook.html)OWA (https://my.faa.gov/tools_resources/info_technology/ems/Training/owa.html)Lync Instant Messaging (https://employees.faa.gov/tools_resources/info_technology/ems365/instant_messaging/)Transend Conversion Tool (PDF)How-To Video: Migrate Your Email Archive(https://my.faa.gov/content/dam/myfaa/tools_resources/info_technology/ems/ems365emailconversion_instruction_video.wmv)


EXHIBIT D


Case 2:15-cv-01709-GMS Document 22-1 Filed 03/30/16 Pa e 12 of 149

EMS365 Proofpoint End User Manual FAA EMS365: DTFAWA-12-D-00021

Date Last Saved 21 August 2014 Page i D.14

Table of Contents 1. Introduction to Proofpoint ................................................................................................... 1

1.1. About this Guide ...................................................................................................................... 1 1.2. Prerequisite Knowledge .......................................................................................................... 1 1.3. Other Sources of Information ................................................................................................. 1 1.4. Contacting Support ................................................................................................................. 1 1.5. What Proofpoint Enterprise Archive Means for You ............................................................. 1 1.6. FAA Retention Policy .............................................................................................................. 1

2. Accessing Proofpoint .......................................................................................................... 2

3. Search for Messages ............................................................................................................ 4 3.1. About the Search Screen ........................................................................................................ 4 3.2. Search Procedure .................................................................................................................... 4 3.3. Finding Messages from Specific Senders or Recipients...................................................... 5 3.4. Finding Messages in Specific Mailboxes ............................................................................... 6 3.5. Finding Messages Sent on Specific Dates ............................................................................ 6 3.6. Finding Messages That Contain Specific Types of Attachments ........................................ 9 3.7. Finding Messages That Contain Specific Words or Phrases ............................................. 10 3.8. Using Boolean Logic for Content Searches ........................................................................ 11

4. Working with Search Results ............................................................................................ 12 4.1. Working with Messages ........................................................................................................ 12 4.1.1. To view a message: ............................................................................................................... 12 4.1.2. Print a Message ...................................................................................................................... 12 4.1.3. Retrieve a Message ................................................................................................................ 12 4.2. Sorting and Navigating Through Results ............................................................................ 13



Date Last Saved 21 August 2014 Page ii D.14

List of Figures Figure 1: Proofpoint Web Login Screen ....................................................................................................... 2 Figure 2: Proofpoint Home Page ................................................................................................................. 3 Figure 3: Proofpoint Search Screen ............................................................................................................. 3 Figure 4: Search Screen .............................................................................................................................. 4 Figure 5: Enter Search Criteria - Search ...................................................................................................... 4 Figure 6: E-Discovery Advanced Search ..................................................................................................... 5 Figure 7: Search for Messages - ME ........................................................................................................... 5 Figure 8: Search for Messages - Specific Sender/Recipient ........................................................................ 6 Figure 9: Search for Messages - by Mailbox ................................................................................................ 6 Figure 10: Search for Messages - Last 7 Days ............................................................................................ 6 Figure 11: Search for Messages - Any Date ................................................................................................ 7 Figure 12: Search for Messages - Between ................................................................................................. 7 Figure 13: Search for Messages - Specify Date .......................................................................................... 7 Figure 14: Search for Messages - On, Before, After a Certain Date ............................................................ 8 Figure 15: Search for Messages - Specify Date .......................................................................................... 8 Figure 16: Search for Messages - by Attachment, Not Required ................................................................. 9 Figure 17: Search for Messages - by Attachment, Specify File Type .......................................................... 9 Figure 18: Search for Messages - by Attachment, Enter Type of File ........................................................ 10 Figure 19: Search for Messages - Content ................................................................................................ 10 Figure 20: Search for Messages - Content Criteria Search Fields ............................................................. 11 Figure 21: Open a Message, Open an Attachment .................................................................................... 12 Figure 22: Print a Message ........................................................................................................................ 12 Figure 23: Retrieve a Message .................................................................................................................. 13 Figure 24: Sorting and Navigating the Results ........................................................................................... 13

List of Tables Table 1: Boolean Logic for Content Searches ........................................................................................... 11



Revision History

Revision Record Change Description of Change Number

D.1 Outlined & Formatted D.2 Content Updated D.3 Posted for Review D.4 Updated Post QA Review D.5 Updated URL

Removed 2.1 Accessing the Archive from Outlook or

D.6 Outlook Web Access Removed associa ted Figures Updated Post QA Review

D.7 Uodated Post FAA Review, Readv for EMS365 Pilot Section 2 updated to reflect DOT and FAA syntax for log-into Proofpoint

D.8 Note added "If using Outlook Web App (OWA), always open Proofpoint in a separate window or tab." Updated Title Added DOT Looo

D.9 Updated Section 4 .2

D.10 Updated Section 3.5 with Note regarding Proofpoint displavino times in CENTRAL TIME

D.11 Updated the FAA looo D.12 Correct FAA Domain callout Section 2 D. 13 Updated for new Web User Interface screens hots D.14 Added E-Discoverv Advanced Search

EMS365 Proofpo int End User Manual

Date Last Saved 21 August 2014 Page iii

Effective Change By Date

2/ 11/2013 Jerrv Kennedv 2/21/2013 Jerrv Kennedv 2/22/2013 Jerrv Kennedv 2/23/2013 Jerrv Kennedv 3/22/2013 Jerrv Kennedv

3/28/2013 Jerry Kennedy

6/5/2013 Jerrv Kennedv




2/7/2014 Jerrv Kennedv 6/11/2014 JR Grownev 7/28/2014 JR Growney 8/12/2014 JR Grownev

FAA EMS365 : DTFAWA-12 -D-00021

D.14


Date Last Saved 21 August 2014 Page 1 D.14

1. Introduction to Proofpoint

1.1. About this Guide

This guide introduces Proofpoint Enterprise Archive and provides step-by-step instructions for real-time searching for messages in the archive.

1.2. Prerequisite Knowledge

This guide is intended for an end-user who knows how to use Outlook or Outlook Web Access (OWA).

1.3. Other Sources of Information

This guide covers procedural information for Proofpoint Archive searches conducted from Outlook or OWA. For other information, see:

• Online Help: Every screen in the Proofpoint Enterprise Archive user interface includes a help button. Click on this button to display information about the steps required to perform tasks on that screen.

• Legal Discovery and Supervision: Explains how to search the archive using advanced search features available only through the web interface. Also explains how to carry out discovery and supervision activities. Your user permissions may give you limited access to these functions.

1.4. Contacting Support

If you need help resolving an issue, please contact your local help desk.

1.5. What Proofpoint Enterprise Archive Means for You

With Proofpoint Archive in place, your messages are stored in a centralized archive accessible from a web browser, such as Internet Explorer, and Microsoft Outlook or Outlook Web Access (OWA). You can search for and read the full history of your email communications, or retrieve past communications so you can forward them to others.

1.6. FAA Retention Policy

Proofpoint retains all emails sent, all emails received, and calendar invitations sent by all users. These items are retained in Proofpoint for five (5) years, unless there is a legal hold. In that situation, items are retained until released from legal hold.




2. Accessing Proofpoint

Accessing the Archive from a Browser

User names and passwords for Proofpoint Archive (Figure 1) are fully integrated with your network user name and password.

Whenever you change your password on the network, your password used to log in to Proofpoint Archive is also changed.

a. Open a browser (such as Internet Explorer, Foxfire, Safari, or Chrome).

NOTE: If using Outlook Web App (OWA), always open Proofpoint in a separate window or tab.

b. In the address bar type the URL to access the Proofpoint Archive.

NOTE: The URL is: https://email.dot.gov/archive. Save to your Favorites or Bookmarks.

c. Enter the Username into the text field.

1. For DOT personnel, the Username format is: ADDOT\network log-in name

2. For FAA personnel, the Username format is: FAA\network log-in name

d. Enter Password into the text field.

e. Click LOGIN button.

Figure 1: Proofpoint Web Login Screen

cADDOT\network log-in nameFAA\network log-in name

d

e




The Proofpoint Home page opens (Figure 2) if you have not selected a preference.

Figure 2: Proofpoint Home Page

Alternately, Proofpoint Personal Archive web page (Figure 3) may open.

a. Depending on your personal preferences, you will typically be brought straight to the Search page.

b. Select the View Tutorial button on the right hand side of the screen to view a Proofpoint Tutorial.

Figure 3: Proofpoint Search Screen



3. Search for Messages

3.1. About the Search Screen The search screen (Figure 4) has four basic components :

• The Search Criteria Area (a): specify what you want to search for.

• The Results List (b): contains a list of messages that match your search criteria.

• A Preview Area (c): contents of the message selected in the list.

• The Archive Toolbar (d): offers access to functions that affect the selected message.

proof po mt ~

m '""" - TO

El CONTeff'T

Resu It s List (b )

PERSONAL AACHIVE C-OIS(OvtRV ~ ...,.

" , I , , , ·, I ",,. .. I _ I Ii:! I o

El lilm m mm

filH 11un1-1 ATTAO'IICHT ~1 ... -,,,~ ... ~.cd------- ~t!.I m

MAILBOX· I UY..,,.ll.BOX

SENT· l.tNYOATE G:.] lillll"""

Getting St arted 8 '113:ll'ei·HMU

l~orm .. montoloo>.tor

2 (ll( k "Seilt(fl-

Tnc •rcttlW' wll t>e k•1t.h~ form•«htt•no""'r~uClf1,,pW1)'COll'I me ,rc4'COU'IC!dt-

3 Clldl on • rc:w l t to vHw 'l'cxi cen d tw OH: me,,-s,e oodclownl,o..cl •n.Khmcnu !n dil, •u.•• by c11eklrcon,wartnrnu:t.

Figure 4: Search Screen

3.2. Search Procedure

Archive

}

Too lbar (d)

Search Criteria Area (a)

Preview Area (c)

a. Enter Search Criteria (see below for details on the diff erent types of search criteria you can enter).

b. Click Search (Figure 5).

The messages that match the criter ia appear in the results list.

t!2!!!,: The Clear button can be used to clear all data from the Search Criteria fields .

FROM: 4(~-----------11 a IMA!LSOX, !My Moilbox

SENT: .-,A.V_Y_OA-TE---,.0-, TO:

CONTElff filoJ'lfljH9l·j AnAC HM.:HT: I Not Requ ired

Figure 5: Ente r Search Crite ria • Search

An alternative search capability is available using the E-Discovery Search tab, commonly used for advanced searches.

a. Select the E-Discovery tab above the archive toolbar

b. Enter Search Criteria then click Search (Figure 6). EMS365 Proofpoint End User Manual

Date Last Saved 21 August 2014 Page4

FAA EMS365: DTFAWA-12-D-00021

D.14



Figure 6: E-Discovery Advanced Search

3.3. Finding Messages from Specific Senders or Recipients

To find messages (Figure 7) that you sent or received:

a. Enter ME (in capital letters) in the From or To box and

b. Press ENTER.

Figure 7: Search for Messages - ME

To find messages based on a display name or Internet email address:

c. Enter the name or address in the From or To text box (Figure 8). (John)

Note: Proofpoint automatically suggests options as data is put into the From or To text box

d. Press ENTER or, from the suggestion list, choose Name/address containing desired. (John Griffith)

Note: The “Current” tab on the suggestion list shows all users with a mailbox that exist within Active Directory (whether or not the account is active). Proofpoint also tracks every account in Active Directory from the point that the archive was implemented. Accounts deleted from Active Directory appear on the “Deleted” tab.



From: ,ha I~ c -To: ~ame/address containing: John

~ohn Anderson Content: ~ohn Bryson

~ohn Griffith ,. • I D From - d ~ohn Hodge

Oesa lr ~ohn Lavorato ~ohn Sherriff

I

Current I Deleted

Figure 8: Search for Messages · Specific Sender/Recipie nt

3.4. Finding Messages in Specific Mailboxes Depend ing on your user access , you may be able to search jus t in your own mailbox, or in mailboxes associated with others (individuals or shared mailboxes ).

To find messages in specific mailboxes :

e. From the Mailbox list (Figure 9), choose the appropriate mailbox (or group of mailboxes).

MAILBOX:

SENT:

ATTACHMENT: Not Required e

Figure 9: Search fo r Messages • by Mailbox

3.5. Finding Messages Sent on Specific Dates To find messages sent on specific dates:

Wi';);AIM

fW,!#Jitili

.

T

f . From the Sent list, choose the appropriate date condition and, from the adjacent list, choose the specific date (if required ) (Figure 10). (Last 7 days )

SENT: BETWEEN

ATTACHMENT: AFTER BEFORE ON THfSWEEK THIS MONTH THfSYEAR LAST7 DAYS LAST30DA YS LAST90DA YS LAST 12 MONTHS

ffl AND

Figure 10: Search for Messages . Last 7 Days

v

EMS365 Proofpoint End User Manual FAA EMS365: DTFAWA-12-0-00021

Date Last Saved 21 August 2014 Page6 0 .14


g. To search for messages sent on any date, choose An y date (Figure 11 ).

SENT: .. BETWEEN

ATTACHMENT: AFTER BEFORE ON THIS WEEK THIS MONTH THIS YEAR LAST7DAYS LAST30DAYS LAST900AYS LAST 12 MONTHS

Iii AND

Figure 11: Search for Messages - Any Date

h. If you know the approximate date, choose Betw een (Figure 12).

MAILBOX : My Mai lbo x

ANY DATE SENT: : 1111 AND

AF TER

ATTACHM ENT: BEFOR E ON THIS WE EK THIS MONTH h THIS YEAR LA ST7DAYS LAST30DAY S LA ST90DAY S LA ST 12 MONTH S

Figure 12: Searc h for Messages - Between

i. Spec ify the dates using the calendar (Figure 13).

MAILBOX: I My Mailbox

SENT: I BETWEEN lfflll AND

ATI ACHMENT: Not Req uired

6 7

n 14

1 2

8 9

15 16

22 23

29 30

v

v

1111 v

3 4

10 11

17 18

24

31

5

12

19

26

CLEAR CLOSE

Figure 13: Searc h for Messages - Specify Date

To specify the date that messages must have been sent On , Before or Afte r (Figure 14).

EMS365 Proofpoint End User Manual Date Last Saved 21 August 2014 Page7


D.14


j . Choose On, Before or After . (After)

MAILBOX:

SENT:

ATI ACHMENT:

ANY DATE BETWEEN

BEFORE ON THfSWEEK THfSMO NTH THfS YEAR LAST7 DAYS LAST30DA YS LAST90DA YS LAST 12 MONTHS

Figure 14: Sea rch for Messages - On, Before , Afte r a Certain Date

k. Specify the date (Figure 15) using the calendar.

NOTE:


SENT: AFTER 7/1/ 2014

ATI ACHMENT: I Not Required

2 3 4 5

k 6 7 8 9 10 11 12

13 14 15 16 17 18 19

20 2.1 22 23 24 25 26

27 28 29 30 31

CLEAR CLOS E

Figure 15: Sear ch for Messages - Spe cify Date

The Proofpoint Archiv ing App liance is collocated with the Managed Servers sitting in the Central Time Zone. Unlike a client-side applicat ion that references the end-user's computer t ime zone sett ings, the Proofpoint Archiving Appliance relies solely on the server to which it is installed.

As such, all date /time stamps on action and activities are referenced in the Central Time Zone . To avoid confus ion, Proofpoint has added the display of the time zone wherever a t ime stamp is presented, in this case "CT" for Central T ime.

EMS365 Proofpoint End User Manua l

Date Last Saved 2 1 August 2014 Pages


D.14



3.6. Finding Messages That Contain Specific Types of Attachments

Choose the attachment type from the Attachment list to find messages with specific attachment types.

l. Choose Not Required (Figure 16) to search for messages regardless of whether or not they have an attachment. Not Required is the default.

Figure 16: Search for Messages - by Attachment, Not Required

m. To search for messages with a specific type of attachment, choose the appropriate option. (is an Excel spreadsheet) (Figure 17)

Figure 17: Search for Messages - by Attachment, Specify File Type




To search for messages with another type of attachment (Figure 18), n. Choose is of another type…

o. Enter the file extension that will identify the attachment when prompted to do so.

p. Click Close.

Figure 18: Search for Messages - by Attachment, Enter Type of File

3.7. Finding Messages That Contain Specific Words or Phrases

For Content Criteria, enter words or phrases to search for. The search includes:

• Subject • Senders (From) • Recipients (To, CC, BCC) • Body • Header (SMTP header) • Names of attachments • Content of attachments

When you search for individual words, each word must appear somewhere in the message, but the words do not have to appear in the same area of the message.

q. Enter the words or phrases in the Content box (Figure 19) to find messages containing words or phrases.

r. Click Show Helper.

Figure 19: Search for Messages - Content

The helper can show you how to construct more complex search criteria. The criteria you enter in the helper is automatically shown, using the correct syntax, in the Content box. You can edit what the helper enters in the box.



s. Enter Content Criteria (Figure 20) in the desired search fields.

t. Click Close.

Content: "archive" (FM OR retention OR policy)

Cl From !vou have edited the search text. Changes made in the helper will replace your changes.

Descrir flnd messages t hat have:

all these words:

archive

an of these words:

FM

But don't include messages that have:

any of these unwanted words:

Figu re 20: Searc h for Messages . Content Crit eria Search Fields

3.8. Using Boolean Logic for Content Searches

Hide Helper

Note: The operators "AND" and "OR" must be entered with capita l letters. The lower case versions are used to search for content containing the words "and" and "or" themselves.

In addition to entering words and phrases, you can also use basic Boolean logic (Table 1) to refine searches . The following elements are supported:

Term Meaning AND Indicates that the words/phrases are both requ ired. As spaces between words and/or

phrases are treated as an "AND", use of this keyword is generally not required . Usage: "Bob Smith" AND factory

OR Indicates that one or the other of the words/phrases is requ ired, but they don't both have to be in the message for it to match. Usaae: "Bob Smith" OR factorv

- hyphen Indicates that the fo llowing word or phrase must not be in the message. Usage: "Bob Smith" - factory

() brackets Indicates a group ing of logical elements for evaluation. Generally brackets are only required when you combine "AND" and "OR" logic in a single search . Usage: ("Bob Smith" OR "Mary Jones") AND factory

- t ilde Inserting a t ilde fo llowed by a number lets you do a prox imity search to find matches with in the proxim ity of the orig inal results . In the examp le, all documents that conta in searchte rmA with in 3 words of searchtermB will be found . Usage: "searchtermA searchtermB"-3

Table 1: Boo lean Logic fo r Content Searches

EMS365 Proofpoint End User Manual

Date Last Saved 21 August 2014 Page 11


D.14


4. Working with Search Results

4.1. Working with Messages

4.1.1. To view a mess age:

a. Click on a message in the results list.

The message opens (Figure 21) in the preview area.

Note: You can open multiple messages by holding SHIFT or CTRL while clicking on messages.

b. To open an attachment, click on it in the preview area.

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EXHIBIT E



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Michael Coulter a

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EXHIBIT F


Human Resources Policy Manual (HRPM)Volume 4: Employee Relations ER-4.1

Standards of Conduct

This Chapter applies to: (1) Non-bargaining unit employees/positions (2) bargaining unit employees/positions,except those employees/positions where any bargaining obligation has not been met or where the applicablecollective bargaining agreement contains conflicting provisions.

Chapter established: August 11, 2000

This version effective: September 28, 2015

Background information: A pen and ink change is made to this Chapter to remove reference to the HumanResource Operating Instruction (HROI) – Drugs and Alcohol in Paragraph 15 a.

1. Policy2. Employee Responsibilities3. Managers’ Responsibilities4. Safeguarding and Use of Information, Documents and Records5. Safeguarding Public Funds6. Use of Federal Equipment, Property, Time, Funds and Personnel7. Observing Safety Regulations8. Absence and Leave9. Giving Statements and/or Testimony

10. Letters and Petitions to Congress11. Recording or Monitoring of Telephone Calls or Covert Recording, Video Taping or Monitoring of Conversations,

Meetings, etc12. Defamatory or Irresponsible Statements13. Workplace Violence14. Possession of Firearms15. Drugs and Alcohol16. Eliminating Discrimination and Creating a Model EEO Program17. Sexual Harassment and Misconduct of a Sexual Nature18. Political Activity19. Holding Office in State or Local Government20. Subversive Activity21. Striking22. Canvassing, Soliciting or Selling23. Borrowing and Lending Money24. Accepting Notarial Fees25. Meeting Financial Obligations26. Accepting Gifts27. Outside Employment and Financial Interests28. Reporting Violations

1. Policy: All Federal Aviation Administration (FAA) employees are expected to comply fully with the letter andspirit of the Standards of Conduct set forth in this Human Resources Policy Manual (HRPM) and with thosecontained in FAA Order 3750.7(series), Ethical Conduct and Financial Disclosure. The agency's policy onemployee conduct applies to all FAA employees and is designed to encourage employees to maintain a level of


t) MyFAA ~-----

behavior and performance that will promote the efficiency of the Federal service and conform to acceptedethical principles.

An employee's conduct on the job has a direct bearing on the proper and effective accomplishment of officialduties and responsibilities. Employees are expected to approach their duties in a professional and business likemanner and maintain such an attitude throughout the workday. It is also expected that employees will maintaina professional decorum at all times while in a temporary duty travel status or otherwise away from theirregularly assigned post of duty, such as telecommuting, whether at home or at a telecommuting site, orattending training. Employees who enter Government work space, even on their regular day off, mustmaintain a professional attitude and decorum. Those employees in direct contact with the public bear aheavy responsibility as their conduct and professionalism significantly impacts the image of the Federal serviceand the FAA.

Employees are also expected to conduct themselves off-duty in a manner which will not adversely reflect onthe agency's ability to discharge its mission, cause embarrassment to the agency by the employee's activity orbehave in a manner that will cause the public and/or managers to question their reliability, judgment andtrustworthiness in carrying out their responsibilities as employees of the Federal Government.

2. Employee Responsibilities: All employees are responsible for conducting themselves in a manner, which willensure that their activities do not discredit the Federal Government and the FAA. Employees must observe thefollowing basic on-the-job rules:

a. Regular attendance, report for work on time and in a condition that will permit performance of assignedduties (i.e., in appropriate clothing and/or outfitted with required tools or equipment; free from any effectsof alcohol and/or drugs that impair job performance or conduct; physically fit as needed by jobrequirements; and in a mentally alert condition to perform the duties of his/her position).

b. Render full and industrious service in the performance of assigned duties. Keep manager fully apprisedof the status of assignments in an effort to ensure an efficient workflow.

c. Respond promptly to, and fully comply, with directions and instructions received from their manager orother management officials.

d. Exercise courtesy and tact at all times in dealing with fellow workers, managers, contract personnel andthe public. Employees must treat everyone with dignity and respect and support and assist in creating aproductive and hospitable work environment. Employees are obligated to avoid disrespectful, abusiveor other inappropriate behavior toward other personnel, management officials and customers.

e. Maintain a clean and neat personal appearance to the maximum practicable extent during working hours.Employees are expected to dress appropriately in clothing that communicates professionalismappropriate to the position held. Individual decisions related to dress should reflect sound andprofessional judgment.

f. Safeguard and handle appropriately all classified information and unclassified information that should notbe given general circulation as provided for in FAA Order 1600.2E, Safeguarding Classified NationalSecurity Information.

g. Conserve, protect and assure appropriate use of Federal funds, time, property, equipment, materials,information and personnel (both Federal and contract).

h. Observe and abide by all laws, rules, regulations and other authoritative policies and guidance, written andunwritten. Employees will familiarize themselves with the Standards of Conduct contained in this HumanResources Policy Manual (HRPM), as well as, the Standards of Ethical Conduct for Executive BranchEmployees, 5 CFR Part 2635, transmitted by FAA Order 3750.7(series), Ethical Conduct and FinancialDisclosure.

i. Immediately report known or suspected violations of law, regulations or policy through appropriatechannels and fully participate in inquiries. For instance, this includes immediately reporting anoperational error or deviation or reporting any personal violation that has the possibility or appearance ofimpacting on the employee's position (e.g., employees occupying safety- or security-sensitivepositions reporting an arrest for an alcohol or drug-related infraction before the start of their nextscheduled work shift and, in addition, safety-sensitive employees must report such an infraction


within 48 hours to the Regional Flight Surgeon).j. Uphold with integrity the public trust involved in the position to which assigned.

k. Observe and abide by prohibitions against any violent, threatening, harassing and/or confrontationalbehaviors towards others, as well as prohibitions on discrimination and misconduct of a sexualnature.

l. Report any change in address and/or telephone number to their manager as soon as possible.

3. Managers' Responsibilities: In addition to the responsibilities described above, managers, which includesagency management officials at all levels and team leaders, are also responsible for applying the FAA'sconduct and discipline program to employees under their supervision. Managers must:

a. Remind employees to review the Standards of Conduct addressed in this Human Resources Policy Manual(HRPM). Also, managers must ensure that employees have reviewed, at least once, the Standards ofEthical Conduct for Executive Branch Employees, 5 CFR Part 2635, transmitted by FAA Order3750.7(series), Ethical Conduct and Financial Disclosure. In addition, managers shall ensure that thoseemployees required to complete a financial disclosure are reminded of their obligation to do so andreminded of the need to attend the mandatory annual training.

b. Provide positive leadership and serve as a role model for their subordinates by demonstrating acommitment and sense of responsibility to their job and loyalty to the organization.

c. Treat their employees with dignity, respect and in a fair and equitable manner in conformance with the FAAModel EEO Program. In addition, managers will communicate to their staff that they will not tolerate orcondone discrimination, or the appearance of discrimination, on the part of any employee.

d. Promptly notify their servicing security organization and their servicing Human Resources ManagementDivision (HRMD) Labor/Employee Relations Staff, of known or suspected criminal activity on the part ofemployees; and in accordance with FAA Order 1600.1(series), Personnel Security Program, report anyinformation that would raise doubts about an employee's continued eligibility for access to classifiedinformation.

e. Embrace, fully support and comply with all DOT and FAA regulations, policies and programs. Takenecessary corrective action when employees under their supervision commit offenses in violation ofpolicies or programs.

4. Safeguarding and Use of Information, Documents and Records: Employees shall ensure the properhandling of Government records and shall not disclose or discuss any sensitive unclassified information(SUI). SUI includes any unclassified information, in any form (i.e., print, electronic, etc.) that must beprotected from uncontrolled/unauthorized release to persons inside or outside the FAA. The FAAgenerally handles four types: "For Official Use Only (FOUO)"; Sensitive Security Information (SSI);Sensitive Homeland Security Information (SHSI); and Protected Critical Infrastructure Information (PCII).Such information may not be released unless specifically authorized to do so, or as required, on a "need-to-know" basis, in the proper discharge of official duties. Examples of such information include drug and alcoholtesting information (e.g., random testing schedules), EEO matters (e.g., complaints, settlement/resolutionagreements, etc.) or Personal Identifiable Information (PII) (Privacy Act information). Classified informationshall not be disclosed to anyone who does not have the appropriate security clearance. See FAA Order1600.2E, Safeguarding Classified National Security Information, for additional information. In addition,employees shall not:

a. Divulge any official information obtained through or in connection with their Government employment toany unauthorized person or organization.

b. Release any official information in advance of the time prescribed for its authorized issuance.c. Use, or permit others to use, any official information for private purposes that is not available to the general

public.d. Remove official documents or records from files for personal or inappropriate reasons. Falsification,

concealment, mutilation or unauthorized removal of official documents or records, either hard copy orautomated, is prohibited by law. Any employee who knowingly provides inaccurate information strikesat the heart of the employee-employer relationship and impeaches the employee's reliability,veracity, trustworthiness and ethical conduct. Employees occupying safety- or security-sensitive


positions and/or testing designated positions (TDP), are held to a higher standard when completingofficial documents directly related to the safety of the national airspace system (NAS), such as FAAForm 8500-8, Application for Airman Medical Certificate or SF-86, Questionnaire for NationalSecurity Positions.

e. Disclose any Personal Identifiable Information (PII) information or information contained in Privacy Actrecords, except as provided in FAA Order 1280.1(series), Protecting Personally Identifiable Information,which implements the various laws, regulations and mandates as it related to Privacy within the FAA.Individuals who demonstrate egregious disregard or a pattern of error in safeguarding PII will have theirauthority to access information or systems removed.

5. Safeguarding Public Funds: All employees whose duties involve the expenditure of public funds must haveknowledge of and observe all applicable legal requirements and restrictions. In addition, employees areexpected to be prudent and exercise sound judgment in the expenditure of such funds.

a. Unauthorized Commitments: Only contracting officers and other designated employees, acting within thescope of their authority, may enter into contracts or other agreements and expend funds on behalf of theGovernment. An agreement that is entered into by an FAA employee who does not have the authority toenter into agreements on behalf of the FAA is an unauthorized commitment. Unauthorized commitmentsare a serious violation of fiscal law and statutes. Persons who enter into unauthorized commitments will beheld accountable. Managers shall make every effort to prevent unauthorized commitments and mustconsider whether discipline is appropriate for an employee who enters into an unauthorized commitmentregardless of whether the procurement action is later ratified. See Section 3.1.4, "Contracting Authority" ofthe Acquisition Management System or Section T3.1.4 of the FAA Procurement Toolbox Guidance foradditional information.

b. Personal Services Contracts: An FAA employee shall not award or be involved in the award oradministration of personal services contracts unless specifically authorized in accordance with the policyand guidelines contained in the FAA Acquisition Management System. Additionally, employees will avoid allappearances of improper association with contract personnel. A personal service contract is a contractthat, by its expressed terms or as administered, establishes what is tantamount to an employer-employeerelationship between the Government and the contractor's personnel. Such a relationship is created whenthe Government exercises relatively continuous supervision and control over the contractor personnelperforming the contract. See Section 3.8.2.3, "Personal Services Contracts" of the AcquisitionManagement System or Section T3.8.2 of the FAA Procurement Toolbox Guidance for additionalinformation. If a legal determination is required, contact the Office of Chief Counsel.

c. Disclosure of Proprietary or Source Selection Information: No procurement official or other employeewho is given authorized or unauthorized access to proprietary or source selection information regarding aprocurement shall disclose such information directly or indirectly to any person other than a personauthorized by the FAA Administrator or the contracting officer to receive such information. An employee,who does not know whether information is proprietary or source selection information or who does notknow whether he or she may disclose or receive such information, has an affirmative obligation to inquire ofthe contracting officer or the Procurement Legal Division whether the information is proprietary or sourceselection sensitive. See Section 3.1.6, "Disclosure of Information" of the Acquisition Management Systemor Section T3.1.6 of the FAA Procurement Toolbox Guidance for additional information.

6. Use of Federal Equipment, Property, Time, Funds and Personnel: Employees may not use or permit othersto use Federal equipment, property, time, funds/Governmental monies or personnel, including but not limitedto stenographic and typing assistance, computer hardware, software, telecommunication capabilities, cellularcommunication devices and services, duplicating services, mail services (internal and external) or chauffeurservices, for other than official business or officially approved or sponsored activities.

a. Government telephones, including facility interphones, are provided for use in conducting official business.Occasionally, employees are permitted to make authorized personal calls that are considered necessary inthe interest of the Government. Refer to FAA Order 1830.8, Federal Telecommunications System, CallingCards and General Government Telephone Usage, for examples of authorized personal calls.

b. Employees may not have their personal mail directed to their place of employment. Exceptions to this


policy may be granted by managers in unusual circumstances such as when an employee is on travel over50 percent of the time or for employees in an overseas post of duty.

c. The use of U.S. Government-furnished postage, either metered or stamps, for personal benefit oradvancement, including application for a Federal position, is prohibited by 18 USC 1719. The use of othermailing services for personal use and paid for by the FAA is also prohibited. Employee organizations andtheir members are also prohibited from using Government or FAA paid mailing services to distributeorganizational information or conduct organizational business.

d. Employees are prohibited from using the Government contractor-issued travel credit card for personal use.Employees will seek reimbursement of legitimate official business expenses within five (5) working daysafter completion of a trip or period of travel, or every 30 days if the employee is on continuous travel status.Prompt payment of account balances is mandatory in order to avoid delinquency and embarrassment tothe FAA. Misuse of the travel credit card includes, but is not limited to: failure to timely file a travelvoucher resulting in delinquency; failure to pay account balance after reimbursement; obtainingtravel advances that exceed expected expenditures; personal use to include ATM withdrawals;delinquency in excess of 60 days; inappropriate purchases of wireless cell devices/services andfailure to report the loss of the travel card, safeguard the travel card or PIN resulting in unauthorizeduse. See FAA Travel Policy, Chapter 302, for further information.

e. Government Purchase Card: All cardholders are responsible for executing card transactions withinassigned dollar thresholds and in accordance with applicable procedures. The cardholder mustsafeguard the purchase card and card number and assure that all transactions are supported byappropriate documentation. The cardholder and approving officials are responsible for assuring thatthe purchase card is not used for prohibited purchases. See FAST Procurement Toolbox T3.2.2.5., forindepth information about the use of the purchase card.

f. Computers: All Internet and electronic media access accomplished by FAA users (utilizing Governmentsupplied resources) shall be consistent with assigned duties and responsibilities or consistent with theofficial business interests of the FAA. Incidental, non-government use of the Internet and Government-owned computers is permissible as long as such use does not interfere with official business and involvesminimal additional expense to the Government. Such incidental use must not violate any Federal or FAArules, regulations or policies. All employees are subject to unannounced periodic monitoring to assure thatthe employee is not engaging in any activity that would discredit the FAA. Non-permissible use includes,but is not limited to: seeking, transmitting, collecting or storing defamatory, discriminatory, sexuallyoriented, harassing material; propagating chain letters or broadcasting inappropriate or unsolicitedmessages; concealing or misrepresenting user identity or affiliation; using FAA resources for commercialpurposes, financial gain or in support of outside individuals or entities; engaging in unauthorizedor entitifundraising, lobbying or political activities; etc. See FAA Order 1370.79(series), Internet Use Policy, FAAOrder 1370.81, Electronic Mail Policy, FAA Order 1370.82, Information Systems Security Program, andDOT H 1350.2, DOT Internet Policy, for further information.

g. Employees who willfully use or authorize the use of passenger carriers for other than official business shallbe suspended for at least one month or longer as warranted, or summarily removed from the Service, asmandated by 31 USC 1349 (b). Passenger carrier includes motor vehicle, aircraft, boat, ship or other similarmeans of transportation owned or leased by the U. S. Government. Employees will also be heldaccountable for inadvertent misuse of a Government vehicle. In these instances, discipline will beapplied in accordance with the Table of Penalties for misuse of Government property. Refer to FAAOrder 4670.2, Motor Vehicle Management, for information pertaining to the authorized use of a motorvehicle.

7. Observing Safety Regulations: Employees must observe all rules, signs and instructions relating to personalsafety in the workplace. See FAA Order 3900.19(series), Occupational Safety and Health for additionalinformation. In addition to avoiding accidents, employees must report potentially unsafe or unhealthful workingconditions and/or practices to their manager or the appropriate safety and health official, and cooperate fullywith agency safety staff. Nonobservance of safety precautions, such as the acts described below, isprohibited:

a. Failure to report an accident involving injury to persons or damage to property or equipment.


b. Failure to use protective clothing or equipment (e.g., failure to use a safety climbing device when one isprovided).

c. Endangering the safety of, or causing injury to, personnel or damaging property or equipment throughnegligence, dangerous horseplay and/or threatening or violent behavior.

d. Failure to wear a safety/seat belt while operating or occupying a motor vehicle while on officialGovernment business. This includes operating a privately owned vehicle (POV), Government ownedvehicle (GOV) and contract or leased vehicle. See DOT Order 3902.9(series) for additionalinformation.

e. The District of Columbia and many States prohibit the use of a cell phone, unless it is hands-free,while operating a vehicle. In keeping with this safety precaution, employees are prohibited fromusing a cell phone, unless it is hands-free, while operating a government vehicle. Employees arealso prohibited from any other unsafe activity while driving a government vehicle, such as textmessaging.

f. Failure to report an operational error or deviation.g. Failure to evacuate the premises during a fire alarm/drill or other order to vacate a work site. Failure to

abide by the directions of a Floor Warden, safety, security or management official.

8. Absence and Leave:a. All FAA personnel are expected to be dependable and reliable in attendance. Unplanned and

frequent absences negatively impact the mission of the FAA and cause disruption to the workplace.Employees must schedule and use earned leave in accordance with established procedures. Employeesmust obtain prior approval of all absences from duty including leave without pay (LWOP). Employees arerequired to contact their manager, normally within one hour of the employee's scheduled start time, torequest and explain the need for unscheduled leave. Excessive unplanned absences negatively reflect onthe employee's dependability and reliability.

b. Sick leave cannot be granted for rest, minor inconvenience or in place of annual leave. Employeesmust provide sufficient information why sick leave is needed so the manager can determine whetherthe requested leave can be granted. Failure to provide adequate information will result in denial ofthe leave. Evidence of frequent unscheduled and/or questionable use of sick leave without medicaldocumentation may result in the employee being placed under the terms of a leave restrictionand/or charges of absence without leave (AWOL) and/or failure to follow leave requestingprocedures. In accordance with the guidelines outlined in Human Resources Policy Manual (HRPM),Volume 8 (LWS), any absence that is not approved will be charged as AWOL.

c. Tardiness includes delay in reporting to work at the employee's scheduled starting time, returning late fromlunch or scheduled break periods and overdue return to the employee's work site after leaving the workstation on official business. Unexplained and unauthorized tardiness is prohibited and will be charged toAWOL, which can be recorded in one-minute increments. Also, employees will be charged AWOL forunauthorized early departures from the workplace.

9. Giving Statements and/or Testimony:a. It is the duty and requirement of every employee to give oral and/or signed statements, as directed, to

any manager, Special Agent or DOT official conducting an investigation, inquiry or hearing in the interest ofthe agency. Such statements must be complete and truthful.

b. When directed by the Administrator (or his/her authorized representative), an employee shall take an oathor make an affirmation about his/her testimony or written statement before an agent authorized by law toadminister oaths, and the employee shall, if requested, sign his/her name to the transcript of testimony,affidavit or written statement which the employee provided. No employee may refuse to testify or providecomplete and truthful information pertinent to matters under investigation or inquiry.

c. All employees must give complete and truthful information in response to requests received fromCongress, the General Accounting Office, the Office of the Inspector General, the Office of PersonnelManagement or other duly authorized investigative bodies, regarding matters under their jurisdiction. It isFAA policy to fully cooperate with such bodies in the public interest. Employees must notify their manager,or their middle or senior-level manager if the inquiry concerns the front-line manager, of any such request.


d. Employees will produce any documentation held by the employee relative to any inquiry orinvestigation. Employees may not discuss their statements or testimony unless permitted by anauthorized official.

10. Letters and Petitions to Congress: The use of appropriated funds to influence the consideration of legislationis prohibited by statute (18 USC 1913). However, the right of employees, either individually or collectively, topetition Congress or any member thereof or to furnish information to any committee or member of Congress isprovided by law. While the FAA desires that employees seek to resolve any problem or grievance within theagency, any employee exercising the right to correspond with a member of Congress shall be free fromrestraint, reprisal or coercion. Employees may not use agency facilities, supplies, equipment, personnel and/orduty time when contacting, either orally, electronically and/or in writing, about personal business to anyone,including any committee or member of Congress.

11. Recording or Monitoring of Telephone Calls or Covert Recording, Video Taping or Monitoring ofConversations, Meetings, etc:

a. Telephone eavesdropping is prohibited. Advance notice must be given whenever another individual isplaced on the line for any purpose whatsoever. An advance verbal warning must be given when anautomatic recording device or a speaker telephone is used. The use of recording devices, portable orotherwise, on telephones shall be for official purposes and generally limited to areas involving air safety.This includes accident investigations, near-collision reporting, Command Communications Network andthe Washington Tactical Switch. For further information, refer to FAA Order 1600.24(series), Listening-in toor Recording of Conversations on Telephones or Telecommunications Systems.

b. FAA employees, in the conduct of their official duties, may not use, aid in the use of, or ignore the improperuse of, secret recording, video taping or monitoring equipment of any kind. Conversations shall berecorded for official purposes only, and only with the knowledge and consent of all those being recorded.

c. Covert/secret taping, either audio or video, of any conversation or meeting occurring at the workplace orconversation or meetings off-site that deal with workplace issues and matters of official concern areprohibited. Examples of such meetings are promotion interviews, EEO meetings with a counselor orinvestigator, meetings between a manager and a subordinate, etc. This prohibition applies regardless ofany State law which may permit covert/secret tape recording.

d. The prohibitions do not preclude the use of normal or standard types of recording equipment used openlyin areas involving air safety or official investigations, or under circumstances wherein the priorconcurrence of all parties is clearly and specifically indicated and understood.

e. In accordance with FAA Order 1600.69(series), Facility Security Management Program, Chapter 3,photography will not be permitted on or within an FAA facility. The Facility Manager must coordinatewith the Regional Servicing Security Element (SSE) prior to allowing permission of any photographyat an FAA facility.

12. Defamatory or Irresponsible Statements: While FAA encourages freedom of expression, employees areaccountable for the statements they make and the views they express. Employees shall not makeirresponsible, false, disparaging, disrespectful or defamatory statements which attack the integrity ofindividuals or organizations, or disrupt the orderly conduct of official business, nor may they make statementsurging or encouraging other employees to act or speak irresponsibly, or to commit unlawful acts.

13. Workplace Violence: Violent, threatening, harassing and/or confrontational behaviors in any form areunacceptable and will not be tolerated. Threatening behavior may include harassment in the form ofintimidation, or any oral and/or written remarks or gestures that communicate a direct or indirect threat ofphysical harm, or otherwise frightens, or causes an individual concern for their personal safety. Suchinappropriate behavior may include pushing, poking, physically crowding, stalking, fist shaking, throwingobjects regardless of the target of the object being thrown, name calling, obscene language or gestures, or anyother intimidating or abusive action which creates a fearful environment and apprehension of harm. Employeesand managers are responsible for enforcing the highest standards of personal safety and welfare at theworkplace. Consequently, employees must immediately report threats of violence, violent incidents, dangerous


horseplay, irrational or other inappropriate behavior to their managers.

14. Possession of Firearms: No employee, while in or on FAA/GSA-owned or leased property, to includeGovernment and personal vehicles, shall carry or have in their possession, privately owned firearms or otherweapons unless authorized by the FAA to do so in connection with his/her official duties, such as survival andemergency firearms in an operational area, such as the Alaskan Region. See FAA Order 1600.69(series),Facility Security Management Program, Appendix 12, for additional information. This prohibition appliesregardless of any State law which may permit the carrying of firearms.

15. Drugs and Alcohol:a. DOT Order 3910.1 (series) (PDF) provides information on the drug and alcohol program and specifically

identifies those FAA positions designated as TDP's.b. The FAA is concerned with the decision of any employee who inappropriately or illicitly uses illegal and

legal substances. Illegal substances include, but are not limited to, cocaine, marijuana, opiates,amphetamines and phencyclidine. Legal substances include alcohol, prescription and over-the-counter(OTC) medications. These substances can affect the employee's work performance and/or conduct andhave an adverse impact on the employee's credibility. For instance, a person's credibility could beseriously impacted when an employee is in the workplace, and although not drunk, still smells ofalcohol. Often others do not wish to work around a person smelling of alcohol or do not trust thejudgment or decision making skills of the employee.

c. As an employer with responsibility for aviation safety, the FAA is especially concerned when an employee'sactions could affect the safety or security of the National Airspace System (NAS) and/or the flyingpublic. The confidence of the flying public depends upon absolute trust in the integrity of the airtransportation system. FAA must be sure that employees are operating without the constraint of drugsor alcohol, or the consequences of such abuse, such as a hangover. Alcoholic beverages areprohibited on any FAA owned or leased property. Employees occupying Testing Designated Positions(TDP), who inappropriately or illicitly use substances, on or off the job, place their jobs in jeopardy. Thisincludes arrest for drug and alcohol related crimes, such as driving under the influence (DUI).Employees must avoid this kind of off-duty behavior since it indicates irresponsibility and lack ofjudgment and is incompatible conduct while occupying a TDP. As stated in employeeresponsibilities, employees occupying safety- or security-sensitive positions must report an arrestfor an alcohol or drug-related infraction before the start of their next scheduled work shift and, inaddition, safety-sensitive employees must report such an infraction within 48 hours to the RegionalFlight Surgeon. In addition, employees occupying safety-sensitive duties must immediately report totheir manager any use of prescription and OTC drugs. The FAA will not allow any employee known toinappropriately or illicitly use substances to perform any safety- or security-sensitive duties until the FAAhas determined that such an employee is no longer a risk to public safety or national security.

16. Eliminating Discrimination and Creating a Model EEO Program:a. The FAA Personnel Management System (PMS), paragraph VIII, Prohibited Personnel Practices, prohibits

discrimination against anyone on the basis of race, color, national origin, religion, age, sex, disability, sexualorientation, political affiliation or marital status. In addition, the Administrator's Non-Discrimination PolicyStatement states that the FAA has a zero tolerance policy with respect to any form of discrimination andthat disciplinary action may be taken against any employee found to have engaged in discriminatoryconduct.

1. The FAA is committed to providing a work environment where unlawful discrimination is eliminated andwhere the contributions of all employees are supported and encouraged without regard to non-meritfactors. To facilitate this effort, the FAA developed the Model EEO Program that directly supports theFAA Strategic Plan. The precepts outlined in the Model EEO Program are applicable to all employees.All conduct must be appropriate and supportive of a hospitable and productive work environment. Forinstance, discriminatory conduct, the making of disparaging remarks, expressing stereotypical views ordisplaying and/or distributing offensive material are prohibited in the workplace.

2. Every level of management is required to provide positive leadership and support for the agency's EEO


policies and programs through ensuring that all agency programs, practices and activities aredeveloped and administered in accordance with pertinent laws and agency policy prohibitingdiscrimination. Managers must not engage in unlawful discrimination or inappropriate behavior incarrying out their authority to take, direct others to take, recommend or approve any personnel actionwith respect to FAA employees and applicants. Managers are responsible for taking proactive steps tocreate and maintain a workplace that is hospitable and free of discrimination, intimidation and otheroffensive behaviors and materials. Managers will be held accountable if they fail to take appropriateaction to correct intimidating and offensive activity in the workplace.

b. Coercion or Retaliation: It is a violation of FAA policy to coerce, threaten, retaliate against, or interferewith any person in the exercise of rights prescribed under Title VII of the Civil Rights Act of 1964, asamended or the FAA Personnel Management System (PMS) of 1996. No employee shall be subject toretaliation for making a charge of discrimination, giving testimony, assisting, or otherwise participating in acomplaint of discrimination; nor shall an employee be retaliated against for filing an EEO complaint orgrievance or participating in the grievance process, or addressing his/her concerns through theAccountability Board (See FAA Order 1110.125), Administrator's Hotline, Inspector General complaint,etc..

17. Sexual Harassment and Misconduct of a Sexual Nature: As an employer, the FAA is committed to providinga workplace that is free of sexual harassment or misconduct of a sexual nature. All employees have a right towork in an environment where they are treated with dignity and respect.

a. Sexual Harassment, pursuant to 29 CFR S1604, exists when unwelcome sexual advances, requests forsexual favors and other verbal or physical conduct of a sexual nature occurs and:

1. Submission to such conduct is made either explicitly or implicitly a term of an individual's employment,2. Submission to or rejection of such conduct by an individual is used as the basis for employment

decisions, or3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work

performance or creating an intimidating, hostile or offensive working environment.b. Misconduct of a Sexual Nature: This is conduct that may not rise to the statutory definition of sexual

harassment, but is nonetheless inappropriate for the workplace and will not be tolerated. For instance,viewing and/or printing material of a sexual nature from the Internet is inappropriate.

c. Misconduct in Violation of the Agency's Policy: All employees have a responsibility to behave in a propermanner and to take appropriate action to eliminate sexual harassment or other misconduct of a sexualnature in the workplace. The FAA established the Accountability Board which addresses sexual misconductexhibited at the workplace. See FAA Order 1110.125, Accountability Board, for more information. Examplesof actions which are considered in violation of the agency's policy include, but are not limited to:

1. Sexual teasing, jokes, remarks or questions.2. Sexually suggestive/offensive looks, leering, ogling, staring at a person's body, or sexually

suggestive/offensive gestures or actions.3. Unwelcome letters, cards, cc mail messages and/or telephone calls.4. Posting, distributing, showing, viewing, accessing through the Internet or other electronic media

sources, materials of a sexual nature. Sexually explicit materials are prohibited at the worksite,regardless of whether or not a specific complaint is filed.

5. Pressure for dates.6. Inappropriate physical touching.7. Promise of benefit in exchange for sexual favors.8. Threat or act of reprisal for refusal to provide sexual favors.

18. Political Activity: It is the right of all employees to vote as they choose and to express their opinions on allpolitical subjects and candidates as specifically authorized in the Hatch Act (5 USC 7321). However, employeesare responsible for acquainting themselves with restrictions on partisan political activity and for not engaging inprohibited actions. Any political activity that is prohibited in the case of an employee acting independently isalso prohibited in the case of an employee acting in cooperation with others or through an agent. Employees


are accountable for political activity by persons other than themselves, including wives or husbands, if theemployees are thus accomplishing by collusion and indirection what they may not lawfully do directly andopenly. This does not mean that an employee's spouse may not engage in politics independently upon his orher own initiative and in his or her own behalf. See Title 5, Chapter 73, or 5 CFR Part 733 and 734 for additionalguidance. Employees are encouraged to contact the Office of Special Counsel (OSC) to seek an advisoryopinion whether any activity could be construed as a violation of the Hatch Act.

19. Holding Office in State or Local Government: No employee shall run for the nomination or as a candidate fora local partisan political office, except as expressly provided in Title 5, Chapter 73. Because of the uniqueinterrelationship between the FAA and local and state government, employees are urged to seek the advice oftheir Regional or Center Counsel to help determine if a particular office represents a real or apparent conflict ofinterest. Employees who hold local or state office must observe both the letter and spirit of the prohibition onactive participation in partisan politics.

20. Subversive Activity: In accordance with Title 5, Chapter 73, no employee shall advocate or become a memberof any organization which the employee knows advocates the overthrow of the constitutional form ofGovernment of the United States, or which seeks by force or violence to deny other persons their rights underthe Constitution of the United States.

21. Striking: No employee shall engage in or encourage another Federal employee to engage in a strike, workstoppage, work slowdown, or sickout involving the Federal Government. See Title 5, Chapter 73, for furtherinformation.

22. Canvassing, Soliciting or Selling: Employees shall not engage in private activities for personal or non-personal financial gain or any other unauthorized purpose while on Government owned or leased property,nor may Government time, personnel or equipment be utilized.

a. This prohibition applies specifically, but is not limited to, such activities as:1. Canvassing, soliciting or selling, particularly for personal or private monetary gain. This prohibition

also applies to such efforts for charities, schools, etc., except when directly linked to theagency-wide Combined Federal Campaign effort each year.

2. Canvassing or soliciting membership, except as authorized in connection with organized, sanctionedemployee groups.

3. Soliciting contributions from other employees for a gift to anyone in a superior official position incontravention of FAA Order 3750.7(series). This prohibited activity applies on or off Governmentpremises. However, this prohibition does not apply on occasions of special significance (e.g.,retirement, marriage, etc.) as long as the contribution is voluntary and a nominal amount. SeeFAA Order 3750.7(series), Appendix 6, Subpart C, Gifts Between Employees.

b. This prohibition does not apply to:1. Activities that are specifically authorized by appropriate authority.2. Soliciting contributions for charitable, health, welfare and similar organizations as authorized by

appropriate authority (e.g., Combined Federal Campaign).3. Those activities of voluntary groups of Federal employees commonly accepted as normal social,

welfare or recreational functions of such groups.4. A spontaneous, voluntary collection for an employee in connection with marriage, birth of a child,

illness, retirement or as an expression of condolence, or other significant life activity, when conductedby co-workers of approximately equal status to the employee.

23. Borrowing and Lending Money: Managers shall not borrow money from subordinates or have a subordinateact as an endorser or co-maker of a note given as security for a personal loan. Neither shall an employee lendmoney to any other employee, superior official or peer, for the purpose of monetary profit or other gain. Theseprohibitions do not apply to the operation of recognized credit unions or to employee welfare plans.

24. Accepting Notarial Fees: An employee who is a notary public shall not charge or receive fees for performing


notarial acts in connection with his or her official duties. The prohibition on acceptance of fees does not applyto notarial acts performed in an unofficial capacity during off-duty hours and off Government-controlledproperty.

25. Meeting Financial Obligations: All employees are expected to discharge their just financial obligations,especially those such as Federal, state or local taxes. Employees are also expected to honor all other validdebts, including personal commercial debts, Government contractor-issued credit card debts, claims based oncourt judgments, Federally insured student loans and tax delinquencies, and to make and adhere toarrangements for settlement of debts.

26. Accepting Gifts: With certain exceptions, FAA Order 3750.7(series), Ethical Conduct and Financial Disclosure,Appendix 6, Subpart B, prohibits employees from accepting any gifts, favors, gratuities, or any other thing ofmonetary value, including free transportation, from any person or company that is subject to FAA regulations,that has or is seeking to have contractual relations with FAA, or that has interests that might be affected by theperformance or non-performance of the duties of the particular employee. See FAA Order 2700.20 (series),Gifts and Bequests and FAA Order 3750.6(series), No-Charge Transportation Provided by State and LocalGovernment Agencies for Official Travel by FAA Employees, for additional information.

27. Outside Employment and Financial Interests: Employees must comply fully with the letter and spirit of theguidance and information relating to outside employment and financial interests contained in FAA Order3750.7(series), Ethical Conduct and Financial Disclosure, Appendix 6, Subparts D and H, and in DOTSupplemental Regulations, 5 CFR 6001.

28. Reporting Violations: As mandated under "Employee Responsibilities," and FAA Order 1600.38 (series) it isthe duty of every employee to report any known or suspected violation of law, regulation or policy to theirmanager, the servicing security organization, the Administrator's Hotline, or the Inspector General, etc.Employees are obligated to preserve information and evidentiary items that may relate to the suspectedviolation and to release such information as directed. Failure to report a violation may result in disciplineunless the failure to report is justified by applicable law. In rare instances, when reporting a violation ofsexual harassment, misconduct of a sexual nature or other discriminatory behavior through the managerialchain is not feasible, the employee must notify the Accountability Board (FAA Order 1110.125).

Related Information

Policies

FAA Order 1110.125, Accountability Board

Human Resources Operating Instructions

Table of PenaltiesAddressing Findings of Discrimination

Reference Materials

Douglas Factors In-Depth

Revision History LogDate Revision

August 11,2000

HRPM ER-4.1 established

September Paragraph 16 revised from Model Work Environment (MWE) to Model EEO Program in compliance


29, 2006 with EEOC MD-715 requirements however effective date was maintained as 08-11-2000.

July 1,2008

Amended to enhance and clarify various policy statements and to add policy statements

Page Last Modified: 10/09/15 13:09 ET

This page was originally published at: https://employees.faa.gov/org/staffoffices/ahr/program_policies/policy_guidance/hr_policies/hrpm/er/er-

4-1/


EXHIBIT 1


Case 2:15-cv-01709-GMS Document 22-1 Filed oJ 30/16

ATC Hiring

Stakeholder Briefing On

Hiring Process

Congressional Briefing Coordination

FAA

Date: 16 January, 2015


Background • Interim Changes to the ATCS hiring process went into effect with

the February 10, 2014 announcement. Key changes included: - 1 vacancy announcement => streaml ined announcement process

- 1 set of qualifications /eligibil ity => simp lified min qual/eligibility review

- Multi-hurd le selection process => increased validity & efficiency of process

- Eliminated CSP & Interview => shortened process and removed potentia l subjectivity

- Resulted in 1,591 selections

• Job Task Analysis (JTA) of ATCS occupation

• Biographical Assessment revision

• Current process relied on results from interim process, Job Task Analysis and assessment of alternative courses of action

• Dialogue and updates with CTI Schools, CTI School Associations, FAA Employee Associations, and NATCA


Biographical Assessment (BA) • Newly developed BA driven by recent job analysis

and subject matter expert input • Empirically validated against key performance

indicators - (e.g., Maintaining Safe & Efficient Air Traffic Flow, Maintaining

Attention & Vigilance, Prioritizing , Technical Knowledge , Teamwork)

• Alternate forms created to enhance security and validity - BA items randomized


Hiring Process Summary • Two-track approach consisting of a:

General Experience/Education Track • External (All U.S. Citizens) general public vacancy announcement (FG-

1)

• Focus is on reaching candidates without operational ATCS experience , but who have education and/or other general work experience

Specialized ATC Experience Track • External (All U.S. Citizens) announcement (AT-AG)

• Focus is on reaching ATCS candidates with operational ATCS experience (e.g. , reinstatement I former CPCs , former military with ATCS experience)

• Retain authority for non-competitive appointments outside of standard two-track approach for critically staffed facilities - To be used on a very limited basis

Gene ra1asE>tp0Effftfrfe~YEct U~5Udne U ri1y Track • March 2015 announcement; Temporary, 2152 FG-1

• ATO will determine the number of hires needed for 18-24 months - Announcement open period will be sufficient to reach total number of applications

required to meet projected hiring needs

• Candidates MUST pass qualifications tests - Revised Biographical Assessment ; Increased security

- Alternate version of the AT-SAT

• All candidates who pass qualifications tests provided tentative offer letter • All qualified candidates who then meet all pre-employment requirements will receive a

firm offer letter

• New hires attend Academy for initial training, facility offered upon graduation

• Service area preference considered but final facility assignment and option based on Agency need

• Includes consideration of those candidates impacted by age-related rovision in the FY15 Consolidated A ro riations Act


Specialized Experienced Track • 52 weeks of post-certification ATC experience

• Permanent, 2152 AT-AG (or higher pay level, if CBA provides) • Specialized ATC experience requirement eliminates need for

qualifications tests • Hired for/go directly to a specific facility (training at Academy as

required)

• Service area preference considered but final facility assignment and option based on Agency need

• January 2015 announcement with reference to the March 2015 announcement for General Experience/Education Track candidates

• Includes consideration of those candidates impacted by agerelated provision in the FY15 Consolidated Appropriations Act


Process Overview Specialized = Yes

ATC Experience

January Announcement

Min Quals

Medica l/Security /Suitability

I Facility Placement (2nd Qtr 2015)

52 Weeks Certified ATC Experience?

Includes requirement for 52 weeks of postcertification ATC experience

Option for non-competitive appointments for critically staffed fac ilities

No= General Experience/Education

March Announcement

Min Qua ls

Biographical Assessment

AT-SAT

TOL

Medical/Security /Su itab i I ity

FOL

1st Academy Class (4th Qtr 2015)


Future Improvements for FY2017 Hiring

• Introduction of new validated cognitive ability test to replace

AT-SAT

• Projected first use for announcement in Fall 2016

• Applies to General Experience/Education, FG-01 track only

EXHIBIT 2


Subject: Fwd: All Sources Announcement February 2014

...

From: DateTo: Sub ry 2014

From: <[email protected]>Date: Jan 27, 2014 16:01Subject: All Sources Announcement February 2014To:Cc:

DearApplicant,

TheFederalAvia3onAdministra3on(FAA)isimplemen3ngchangestoimproveandstreamlinetheselec3onofairtrafficcontrolspecialists(ATCS).Yourstandinginourcurrentapplicantinventoryisbeingimpactedbythesechanges.

Specifically,thecurrentapplicantinventories,includingyourapplica3on,areintheprocessofbeingclosedandwillnolongerbeu3lized.AnewapplicantinventorywillbeestablishedbasedonaFebruary2014announcement.Anypriorapplica3onthatyousubmiJedwillnolongerbeconsidered.YouwillneedtoapplyfortheFebruaryannouncementinordertocompeteforentryintothenewinventoryandtoreceivefurtherconsidera3onforemploymentasanATCS.

AnoverviewoftheotherchangesbeingmadetotheATCShiringprocessincludes:

· Ana3onwidecompe33ve,FG-01,vacancyannouncementopentoallU.S.Ci3zenswillbeissuedinFebruary,2014.Anyindividualdesiringfutureconsidera3onforemploymentmustapplyunderthenew


proces~ ~~ild'Q-Q h~ cv~~~aT>1i lic.fn~ t ~~ tteAii\WP.;~ of 149 employment will continue to be processed.

All applicants will be evaluated against the same qualifications criteria. Specifically, applicants must possess at least three years of full-time work experience or a bachelor's degree, or a combination of the two to equal three years.

The pre-employment test has been revised. The revised test is comprised of a two-part process including a questionnaire completed during the initial application and a subsequent test administered post-application. The subsequent test will only be administered to those who meet the qualification standards and pass the applicant questionnaire.

All applicants will be required to take and pass the new assessments in order to be referred for

selection consideration . A single vacancy announcement will be used for all applicant sources, resulting in a single

nationwide referral list containing all qualified candidates who meet the qualification standards and pass the pre-employment test. Although applicant geographic preferences will be considered, geographic preferences will no longer be used for referral or selection and those selected may be placed anywhere in the United States.

We recognize this is a change from the previous application process. If you have questions or need further clarification of these changes, please feel free to contact Aviation Careers at 405-954-4657 Monday to Friday from 8:00 a.m. to 4:30 p.m. Central Standard Time.

Sincerely,

Ii Rickie Cannon Deputy Assistant Administrator for Human Resource Management

EXHIBIT 3



Show n below is the website that was live on the faa .gov website from 8/ 10/ 2011 through 2/ 25/ 2014 .

This site prov ided detai ls on the Air Traff ic Collegiate Train ing Initiati ve (AT-CTI) stat ing that "the program is designed to

provide qualified applicants to fill developmental air traffic control specialist positions " and "The FAA hopes to employ

all eligible CTI graduates ... " This site directed peop le to "Graduate from an FAA approved AT-CTI program " in order to

become an air traffic contro ller and attracted thousands of students to attend appro ved CTI programs .

,A Federal Aviation - Adm inis tration

FM Home About FAA Jobs News A-Z Index [v•f i · Sear ch

Aircraft Airports Air Traffic Data & Research Licenses & Certificates Regulations & Policies Training & Testing

,.,.,,.., 1c.. 1e » 0 .... e • ur n ... o... Gt a ~ ~r • ob-~ Jt C...... et. :s •

Human Resource Management

Key Officials

Offices

Job s & Careen,

Htnan Resources Office Directory

New Employ ee Onboarding

FAA for .. .

Pilots Mechanics Other Aviation Professionals Travelers Educators & students

Handbooks & Manuals

Aircraft Aviation Examiner & Inspector

Forms

FAA Fom1s National Airports Forms

A i rcraft Cert ificates

Type Certificate Data Sheets (TCDS)

Air Traffic Collegiate Training Initiative (AT-CTI)

f/:, Print

What is the AT-CTI program?

The FAA has partnerships wrth many colleges and universities. These schools offer tw<r and four-year non-engineering av,ation degrees that teach basic courses ,n au traffic control. We call this program the Air Traffic Collegiate Training lnitiatiVe (AT ·CTI) program. The program is designed to provide Qualified applicants to fill developmental air traffic control specialist positions.

Graduates of the AT-CTI program are eligible to bypass the Air Traffic Basics Course, which JS

the first five weeks of Qualification training at the FAA Academy in Oklahoma City. Academy training consists of option-specific (tem1inal or en route) inttial training. students must successfully complete an reQuired training at the FAA Academy to continue employment with FAA.

Length of Training Initial Qualification Training for the terminal option is approximately 37 days

• Initial Qualification Training for the en route option is approximatety 62 days

If I am interested in the AT-CTI program and want to be an air traffic controller, what must ldo?

• Graduate from an FAA approved AT-CTI program • Receive an official schoOI recommendation • Be a Untted States citizen • In most cases, not have reached age 31 • Pass a medical examination • Pass a security invesbgabon • Achieve a score of at least 70 on the FAA pre-employment test

Speak English clearly enough for others to understand you on communications eQuipment • Complete an interview

What schoo ls have AT-CTI approved programs?

A number of schools across the country have approved programs. Here is a list of AT-CTI SchOOIS.

Does FAA prov ide tuit i on ass i stance for the AT-CTI program?

No. You must pay to attend an AT-CTI program. For tuition assistance, contact the financial aid office at the AT -CTt school you want to attend. They will tell you about financial aid programs, scholarships, and grants.

How does FAA track my status i n the AT-CTI program?

The Aviation Careers Division maintains an inventory of students enroned in the AT-CTI program provided by sehoOI officials. and of eligible AT-CTI graduates. The FAA uses the AT-CTI inventory to track information on applicant eligibility, graduation dates, school recommendation status, and for scheduling the pre-employment test

How long can I stay i n the AT-CTI inventory?

You can stay in the inventory for at least three years aner you graduate from your AT-CTI program. The initial eligibility period is 3 years from your graduation date or your 31" birthday, if sooner. Afler thal you can stay in the inventory only if you apply each year for an extension.

Can I extend my eli g ib il ity i n the AT-CTI in ventory?

Yes. You may apply for a one-year extension after your three-year eligibility period expires or within 60 calendar days of expiration. You may continue to apply for one-year extensions until you reach age 31. You must contact the Av,abon Careers Division to request an extension.

Why do I need a recommendat i on from my AT-CTI school?

An official school recommendation from your AT-CTI school tens us that you satisfied all academic reQuirements and that we can consider you for employment. If you do not get a school recommendabon, then your name will be removed from the AT-CTI inventory.

Are AT-CTI graduates g u aranteed emp loyment w ith FAA?

No. The FM hopes to employ all eligible AT-CTI graduates but cannot guarantee that all will be hired.

What if I am referred on a l ist of el igib le candidates but not se lected?

Your name wiff be returned to the AT-CTI inventory for future referral unless:

• Your eligibility in the AT-CTI inventory expires • You reach age 31

For more information see Job Offers & Accepting a Position.

If I decline a pos it ion , w ill I rece ive future cons iderat i on for an ATC job?

Yes, until your eligibility expires.

Who can I contact for informat ion regard ing the AT-CTI program?

Aviation Careers Division

AMH-300 P.O. Box 25082

Oklahoma City, OK 73125

Phone: (405) 954-4657 Fax: (405) 954-8531

Emad: 9-AMC-AMH-CTl@faa gov

Aeronaut i ca l Nav igation Products

Airport Diagrams Airport/Facility Directory (d-NFD) National Flight Data Center {NFDC) Terminal Procedures (d-TPP)

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Page Last Modified: 08/10/1110:43 EDT

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m Stay Connected

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~ ~r.! !J

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Readers & Viewers

}. Iii ! l!I ~ Government Sites

DOT.gov

Freque ntl y Asked Quest ions

All Questions USA.aov

EXHIBIT 4


1/3/2016 ATC Hiring update from the National Pres dent - Goog e Groups

https://groups.google.com/forum/print/msg/nbcfaeinfowestpac/7k6CeXLyoSI/gi4_MaHs3YgJ?ctz=3159682_88_88_104280_84_446940 1/3

Google Groups

ATC Hiring update from the National President

James Swanson Jr Jan 24, 2014 10:50 PMPosted in group: NBCFAEinfoWESTPAC

NBCFAE Family, Please read the information below carefully. This process is constantly evolving. So here's what is fact so far. 1. The controller vacancy announcement is open to all US citizens that meet the minimum qualificationsof the vacancy. Everyone interested should bid. The list will also be used to fill future vacancies. 2. Rumors have been spreading that (TOL) temporary offer letters may still be offered to people thatwent through the old hiring process.. As you know this has been a big issue for NBCFAE. I confirmedyesterday with agency leadership including AHR1 that the agency will not offer jobs to people that mayhave been in that pipeline. Their words were "That list has been purged". So please tell everyoneimpacted by this to apply on the upcoming bid. 3. CTI schools. During the holidays CTI schools were informed that they will no longer receive thepreferences they have been receiving. I received a lot of feedback from people impacted the change. Some of it was very negative and some centered around not understanding why NBCFAE fought theissue the way it did. That conversation will continue but the bottom line is All CTI students need to applyon the upcoming bid. 4. Veterans Preference remains. There will be more coming on this one. 5. There is an effort to hire people with targeted disabilities to work in the ATO. The ATO has set a2014 goal of hiring 10 people with targeted disabilities. The key word is targeted which are defined. More to come. What we do not know We do not know exactly what the new ATSAT test will look like. We have a general idea based on theskill set needed to perform the job. The test will have two components. A biographical test and acognitive test. You will have to pass the biographical portion to take the cognitive portion. We do not know exactly how the selection factors will be applied but we do know that a diverse poolmust come from the process. The FAA is still working both these issues and as soon as I know you will know. Please bear with me ifit takes time. I want to share the correct information the first time. We will be offering online training for persons interested in learning the types of skill set assessmentswe believe will be apart of the ATSAT test. WHATS DIFFERENT The hiring process for applicants will be a modified Pepsi which means there will be five locations wherea person can travel at their own expense to go through the hiring process before attending theacademy. The locations are Seattle, Dallas, Atlanta, Chicago and the fifth site is to be determined.




Applicants will be able to go through the security and human resources part of the process but will haveto handle their medical clearance separately. If a person chooses not to use the Pepsi process thenthey will still have the option to use the standard hiring process which takes more time. More to come.

The Federal Aviation Administration (FAA) will be issuing a large number of vacancy announcementson February 10, 2014, for airtraffic control specialists on a nationwide basis. It will only be open for 10days.

http://www.faa.gov/jobs/career_fields/aviation_careers/

Visit the FAA Virtual Career Fair and learn all about select aviation careers FAA is offering. FAA recruitment experts will be available for live chats on Jan. 29, 12–4 p.m. EST, and Feb. 12, 12–4 p.m. EST.

To register for the Career Fair and to learn about these aviation careers, please visit: http://vshow.on24.com/vshow/network/registration/5492

Applicants are highly encouraged to use the resume builder available on the USAJOBS website usajobs.gov.

Visit the USAJOBS Resource Center at help.usajobs.gov/ to learn how to build your resume, and access tips and tutorials on applying and interviewing for federal jobs. Let me say a few things in closing. We have been very successful in spreading the word on this announcement and it is nosurprise, especially in these times, that the response has been enormous. I have seen so many diverseand talented young folks looking for opportunities. Our challenge is to assist them in any way we can tofind opportunities wherever they can including in other areas of the federal governmentif possible. More to come and we will need your help. NBCFAE has a proud history of helping everyone who ask us for help. We do not ask the ethnicity ofanyone seeking our assistance and we want the best and brightest to work for the FAA. I believe what issometimes lost is that we are also the best and brightest. NBCFAE's goals include assisting inrecruiting African Americans, females, and minority individuals into the FAA and to promote equalemployment opportunities through all lawful means. We do not apologize for our commitment to thatend. We encourage everyone to join us as members and hope that our organizations work speaks for itselfwhen people consider becoming a member Please sign on the membership section of www.NBCFAE.org. Go to the Resources header. Use thedrop down menus to go to Documents and then to ATC hiring for additional information. Please email any questions you have to me. I will compile them and send a Frequently AskedQuestions next week, Have a wonderful weekend. In Unity,




Roosevelt Lenard, Jr. NBCFAE National President


EXHIBIT 5


Case 2:15-cv-01709-GMS Document 22-1 Filed 03/30/16 Page 63 of 1494/13/2014 INFORUM I Fargo. ND

I M lht:" Fo111m of fargo -Moorh e~1d

Anna Burleson, Forum News Service, Published March 05 2014

Want to be an air traffic controller? UND says FAA has 'dumbed down the process'

GRAND FORKS - The Federal Aviation Administration has leveled the playing field for anyone wanting to work as an air traffic controlJer.

But is that a good thing?

Instead of giving preferential treatment to people with degrees in the field, as of February, anyone can be considered for the job as long as they pass a preliminary test and have a bachelor's degree or three years of work experience in any field whatsoever.

Paul Drechsel, assistant <.:hairman uf the University of North Dakota's air traffic control program said the decision was confus ing and definitely a cause for concern .

"It's almost like they dumbed down the process," he said. "If I was the flying public I would be very concerned about this."

FAA Spokesman Tony Molinaro said the decision was made to "add diversity to the workforce."

"There's always a need for ATC because by age 55 you have to retire," he said. "That turnover does happen faster than in a normal workplace."

Molinaro said it's great if people with A TC degrees apply because the process will be a lot easier for them, but it doesn't necessarily mean they have a leg up.

"We know that we have to hire 'so many thousands' over the next decade, so it's a way to see if we can find the best applicants across the whole population," he said.

But Drechsel doesn't see it that way.

"We're confused," he said. "We haven't had any feedback yet, but we requested it from the FAA so we can make adjustments."

UN D's Department of Aviation has assembled a legislative affairs committee to essentially convince state and local politicians to use their influence to get the decision reversed.

"I think with patience, this will change," Drechsel said.

UND is certified as a Co llegiate Training Initiative school, meaning before the rule change , students who

Case 2:15-cv-01709-GMS Document 22-1 Filed 03/30/16 Page 64 of 1494/13/2014 INFO RUM I Fargo, ND

earned degrees could skip the first five weeks of a 12-week FAA-mandated training session at the Mike Monroney Aeronautical Center in Oklahoma City.

Now, a person who has no experience in the field can take the course after passing an initial test to measure things such as one's ability to handle stress.

But Molinaro said it still requires a certain skill set to pass all of the tests and work in ATC.

"We're looking at not just basic knowledge, we're looking at reaction time, working under stress, multitasking, thinking in three dimensions, things like that," he said.

EXHIBIT 6



Air Traffic Control Hiring and Training Barrier Analysis Support Services Feedback and Recommendations - May 7, 2014

Prepared by: Don R. Simons

Performed the following activities in support of the Air Traffic Control Hiring and Training Barrier Analysis:

Consultative Services and Stakeholder Engagement:

I. Held multiple meetings with the Air Traffic Organization (ATO).

Held meetings with Mr. Joseph Teixeira, Vice President Safety and Technical Training, to discuss his views and concerns about the Interim Hiring Process and to solicit his ideas

about the path forward.

Met with Mr. Michael McCormick, Vice President Management Services, to discuss his views and concerns about the Interim Hiring Process and to solicit his ideas about the

path forward.

2. Held multiple meetings with the Office of Human Resources (AHR).

On various occasions met with Ms. Carrolyn Bostick, Assistant Administrator, Office of

Human Resources, Mr. Rickie Cannon, Deputy Assistant Administrator, Office of Human Resources and Chris Kominoth, Special Assistant. Held multiple meetings with the Office of Civil Rights (ACR).

Held meetings with Ms. Mamie Mallory, Assistant Administrator Office of Civil Rights

to discuss her views and concerns about the interim hiring process and the steps moving forward.

Data Analysis:

I. Reviewed the Barrier Analysis prepared by Outtz and Associates.

2. Reviewed Extension to the Barrier Analysis prepared by APT Metrics.

3. AHR denied a request to receive briefings on the Biographical Questionnaire and the Air Traffic Controller Job Task Analysis.

1


Feedback and Recommendations:

1. The Biographical Assessment (BA). The use of the BA has generated a great deal of controversy both internal and external to the FAA. Less than 10% of 28,000 applicants passed the BA. Congressional inquiries are ongoing and the FAA has been tasked with responding to why such a small fraction of applicants are passing the BA.

There is a lack of transparency about the development and predictability of the tool. Very few people seem to understand the methodology behind the BA. AHR has restricted briefings on the background and development of the BA, citing advice from the General Counsel's Office amid concerns of legal challenges.

Particularly troubling to most observers is the large number of CTI candidates who were previously qualified, many of whom had already passed the Air Traffic Selection and Training (AT-SAT) test with high test scores, who were subsequently deemed ineligible because of the BA. The agency's position is that the BA is an "independent and distinct instrument that measures characteristics required for success in the academy and through to final controller certification." According to the agency "the BA measures general and A TC-specific work experience, education and training, work habits, academic and other achievements, specific life experiences, and other factors." Yet there are several examples of CTI candidates with outstanding grade point averages, excellent AT-SAT scores, aviation related work experience and even pilot ratings, who are now ineligible for further consideration. There are also examples of veteran candidates with recent air traffic control experience who were deemed ineligible. Worst yet, there are examples of FAA certified professional controllers who were deemed ineligible based upon the BA. Conversely, there is evidence of candidates with lesser levels of education and experience who were deemed eligible based upon the BA and are proceeding to take the AT-SAT test.

Some FAA Employee Associations have expressed concern that many very qualified minority and women candidates, as well as veterans, were deemed ineligible based upon the BA. These are candidates who clearly met eligibility requirements had they not been subjected to the BA.

Conversely, there is the perception that the BA will lead to disparate treatment of nonminorities. Non- minority candidates who were previously deemed "well qualified" based upon academic achievement and high AT-SAT test scores were deemed "ineligible" to even re-take the AT-SAT, while minority candidates with lesser academic achievement and no previous AT-SAT testing were deemed eligible to proceed in the process and to take the AT-SAT test for the first time.

2


The Barrier Analysis recommended establishing a "multiple hurdle approach" that was "stringent but defensible". The FAA appears to have missed the mark on this recommendation.

We recommend the FAA reevaluate the utility of the BA as it has been used in the interim hiring process. We recommend using a tool that more closely evaluates the skills and abilities necessary to perform air traffic controller tasks.

2. College Training Initiative (CTI) Programs. Specifically, there was a lack of proactive communications with the partner institutions about plans to change the hiring process, and the institutions have serious concerns about the future of their partnerships with the FAA. Several congressional inquiries on the status of the CTI program are

ongoing.

FAA key stakeholders acknowledge that communications between the FAA and the CTI institutions was less than desirable, both in terms of timeliness and information exchange.

The graduates and incumbents of these programs believe the interim process does not give appropriate recognition to the CTI education. The institutions state "the changes have relegated their programs to be of no advantage for their students thereby creating significant harm to their programs". Together these concerns have created a firestorm of opposition.

Of particular concern for the Associate Degree programs is that the interim process has the effect of eliminating many of their graduates because they do not meet the basic eligibility requirement of a "4 year college degree, or 3 years working experience, or a combination of college and work experience totaling 3 years". Prior to the changes these graduates were eligible because they satisfied the requirements to "complete an FAA approved CTI program". The completion requirement did not differentiate between 2 year and 4 year programs. Now many of the 2 year program graduates do not meet the basic eligibility requirement because they do not have the prerequisite work experience to establish a total combination of 3 years. Ironically, it is the 2 year programs that tend to have the most diverse student populations. So, in effect the interim process reduced access to the kind of demographics the Barrier Analysis reveals has been historically adversely impacted.

We recommend the FAA engage in meaningful dialogue with representatives from the CTI programs, and perhaps other institutions with aviation programs, to determine how best to leverage the education and skills their students gain from attending such programs.

3


AHR cited the need to have "one set of eligibility requirements" as a key element of both the interim and long term processes. While this is a desirable requirement, past experience has proven this is not a practical approach. Exceptions will continue to be a necessity in order to reach the desired candidate pools. Examples of such exceptions are: Retired Military Controller, Control Tower Operator, PA TCO, and DOD/FAA Reinstatements. Mr. Cannon of AHR indicated a willingness to consider exceptions as they become necessary and appropriate.

We recommend the CTI program candidates be considered as a separate candidate pool not unlike the aforementioned categories.

3. Race, National Origin (RNO) and Gender Data. AHR and ACR have stated the RNO and gender data will not be released until the candidates receive tentative offer letters. Several A TO officials expressed concern about such a decision, citing the fact that the catalyst for many of the changes to the hiring process are generated by the Barrier Analysis which documented adverse impact to minorities and women. They are concerned that if data does not reflect improvement, or worst, indicate a level of regression, the agency needs to have this information sooner rather than later so any necessary adjustments can be made. Also, having the RNO and gender information would allow the agency to be proactive in its communications with key stakeholders.

We recommend that RNO data be released as soon as it is available.

4

EXHIBIT 7


3/28/2016 Gma l - Fwd: Rojas Sched Os

https://mail.google.com/mail/u/0/?ui=2&ik=5356bcdeb8&view=pt&q=mpearson%40azlaw.com%20Paul.Bullis%40usdoj.gov&qs=true&search=query&msg=152cd6a… 1/3

Jorge Rojas <[email protected]>

Fwd: Rojas Sched Os

Michael W. Pearson <[email protected]> Wed, Feb 10, 2016 at 4:00 PM, Jorge Rojas <[email protected]>, Christine Penick

<[email protected]>

Michael W. Pearson

Curry, Pearson & Wooten, PLC 814 West Roosevelt Phoenix, Arizona 85007 Phone (602) 2581000 Fax (602) 5239000

iPhone Transmittal please excuse grammatical and spelling errors.

ATTENTION: The information in this email message is attorney privileged and confidential information intendedonly for the use of the individual or entity named above. if the reader of this message is not the intendedrecipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified thatany dissemination, distribution, or copying of this communication is strictly prohibited. If you have received thiscommunication in error, please immediately notify our office by telephone.

Begin forwarded message:

From: "Bullis, Paul (USAAZ)" <[email protected]<mailto:[email protected]>>Date: February 10, 2016 at 3:58:12 PM MST To: "Michael W. Pearson" <[email protected]<mailto:[email protected]>> Subject: RE: Rojas Sched Os

Mike,

I tend to agree that we don’t need to submit a 26(f) plan. If on reflection I reach a different conclusion I’ll let youknow.

I appreciate you reaching out on 151709 before the MSJ has to be filed. Let me tell you some things going onrelated to the FOIA requests in that lawsuit. For request 9349, I understand that Mr. Rojas submitted asubsequent request asking for the same information but in raw format. I had thought a response to that newrequest had already gone out, but evidently not. It should go out shortly. Based on conversations I had with Mr.Rojas, I am optimistic that this raw data will address his concerns about the original response to 9349. Sohopefully 9349 will not be an issue.

I am told that a response to 9300 has very recently gone out. I have not seen the response. Once you have achance to look at it please let me know if you have concerns.

As to 9333, I’ll have to get back to you on the agency’s position.

Regards,

Paul A. Bullis Assistant U.S. Attorney District of Arizona Two Renaissance Square




40 North Central Ave. Suite 1200 Phoenix, AZ 85004 6025147659 6025147760 (FAX)

From: Michael W. Pearson [mailto:[email protected]] Sent: Wednesday, February 10, 2016 10:55 AM To: Bullis, Paul (USAAZ) Cc: Christine Penick Subject: FW: Rojas Sched Os

Paul,

I have entered an appearance on behalf of Mr. Rojas in the second matter (CV15 01985). I was reviewing thefirst case (CV150101709 ) last week before I had to headed to California. I don’t think we are required to submitthe 26(f) as the case already has the scheduling order and the matters have been placed on the expeditedlitigation track. I wanted to get your opinion yet I see no rule, or local rule, that requires us to do the 26 once thecourt has placed the case on the expedited track/issued a scheduling order. Of course, I would like to see if wecan work these matters out and obtained the requested documents before you file your MSJ. I’m not sure how farapart we are and if the agency is set on relying on the stated exemptions.

If we don’t get a chance to converse prior I hope you have a good weekend.

Best Regards,

MP

Michael W. Pearson [cid:[email protected]] 814 West Roosevelt Street Phoenix, Arizona 85007 Attorneys licensed in: Arizona, Colorado, District of Columbia, and Florida Cases litigated nationwide http://www.azlaw.com<http://www.azlaw.com/> 602.258.1000 Phone 602.523.9000 Fax ATTENTION: The information in this email message is attorney privileged and confidential information intendedonly for the use of the individual or entity named above. If the reader of this message is not the intended recipient,or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that anydissemination, distribution, or copying of this communication is strictly prohibited. If you have received thiscommunication in error, please immediately notify our office by telephone and email and return the originalmessage to us at the above address. Thank You.

[Michael_PearsonDK250 2015 small][MH_barregister_icon_2015 small] [cid:[email protected]][cid:[email protected]][cid:[email protected]][AZ finest badge small]

[cid:[email protected]]

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EXHIBIT 8


3/28/2016 Trouble n the Skies | Fox Business

http://www.foxbusiness.com/features/2015/05/20/trouble-in-skies.html 1/8

Trouble in the Skies | Fox Business

– FOX Business' "Trouble in the Skies," a six month investigation of the FAA’s new hiring practices,uncovered changes that may put the nation’s flying public at risk as well as allegations that the newest airtraffic control recruits had access to answers on a key test that helped them gain jobs with the FAA.

Lawmakers are taking notice, in a statement to FOX Business Correspondent Adam Shapiro U.S. Rep.Randy Hultgren (IL) said. “The latest report elevates the need to dig deeper to find out what the FAA ishiding. What is clear is that the FAA’s lack of transparency and disturbing agenda puts the safety of ourskies at risk. I repeat: it’s time to compel the FAA to come before Congress to answer for their actions.”

Also uncovered was an FAA effort to promote diversity that discarded 3000 qualified college graduates withdegrees in air traffic control despite their following FAA procedure and obtaining FAA accredited degrees.

Millions of Americans are about to fly to summer vacations unaware that some of the air traffic controllersguiding their planes may have cheated on a key test to get their jobs. A six month investigation by the FOXBusiness Network into the hiring and training of air traffic controllers raises troubling questions about thenation’s air safety and the men and women the Federal Aviation Administration, FAA, hires to staff airportcontrol towers.

It takes several years of study to acquire the complex skills necessary to become an air traffic controller, orATC. It’s considered among the highest pressured jobs in America. The path for new ATC recruits beginswith questions like this, “The number of different high school sports I participated in was A) 4 or more… B)3… C) 2… D) 1… E) Didn’t play sports.” It was on the Federal Aviation Administration’s 2014 new and




controversial exam called the Biographical Questionnaire or BQ. The FAA says it created the BQ topromote diversity among its work force. All air traffic control applicants are required to take it. Those whopass are deemed eligible and those who fail are ruled ineligible.

In 2014, 28,000 people took the BQ and 1591 were offered jobs. FOX Business, as first reported on FBN’s“The Willis Report”, has uncovered evidence that FAA employees’ including some within the agency’shuman resources department may have helped applicants cheat on that test.

Air traffic control applicants take the BQ at home, on their personal computers, without any supervision.The agency’s web site says the BQ is “… proven to be a valid instrument for assessing experience workhabits, education, and dimensions that are related to success on the job.” Other questions on the 2014BQ included, “How would you describe your ideal job? What has been the major cause of your failures?More classmates would remember me as humble or dominant? 26-year-old Matthew Douglas, a NativeAmerican from Washington State, took the BQ last year and failed. “How does this relate to the job? Howdoes this determine what’s gonna make a successful candidate?” he asked.

It’s a good question and one the FAA is reluctant to answer. The federal agency will not reveal what the BQspecifically measures or how the exam determines eligibility to become an air traffic controller because it isworried that would compromise the test. But what really upsets Douglas is until January 1 , 2014, he wasthe kind of person the FAA considered incredibly eligible and gave preference in hiring to become an airtraffic controller.

Matthew Douglas - CTI Graduate

Matthew Douglas is an energetic young man who had a good job working for Google Maps when a friendinvited him to tour the FAA’s control center in Seattle. “I was hooked. The work was fascinating and I knewthis was my calling,” he said. Douglas decided to throw caution to the wind, left his job, loaded his dog intothe car and made the 2200 mile trek north to the University of Alaska Anchorage, UAA, where he set out toobtain a degree in air traffic control. He says, “I opted for the UAA because they had simulators and a well-respected program.” Like several other young men and women pursuing air traffic control degrees,Douglas borrowed thousands of dollars, $30,000 in his case, to earn an FAA accredited degree fromprograms the FAA calls Collegiate Training Initiative or CTI Schools. The FAA created the CTI programmore than 20 years ago to provide the agency with a reliable source of qualified air traffic controlapplicants.

The FAA knew back in the early 1990s, that it would face a shortage of qualified air traffic controllers as oldtimers began to retire. The FAA requires controllers to stop working at 56 years of age and the predictedshortage is now developing. The agency says it needs to hire 1000 new air traffic controllers a year for thenext ten years to replace those it’s losing to retirement. Air safety and the U-S economy depend on it. Airtraffic controllers are the backbone of a system that routes 87,000 flights daily in North America and

st




contributes $1.5 trillion annually to the US economy according to the FAA.

Between 1994 and 2006, the FAA recruited colleges and universities nationwide to establish CTI programs,on their campuses, to teach potential air traffic controllers the basics. At its peak the CTI program wasoffered at 36 two and four year institutions. And until last year, the FAA WEB page advised people likeDouglas that the CTI program was the way to become an air traffic controller. Things were looking good forhim when he graduated from UAA’s CTI Program in 2013.

Matthew Douglas earned a perfect score, 100, on the FAA’s old screening test called the Air TrafficSelection and Training exam, or AT-SAT. The FAA says the AT-SAT is an eight hour computer based testthat measures, “aptitude required for entry-level air traffic control positions.” Douglas calls it a rigorousmeasure of cognitive ability. He said, “There is time speed distance equations that you do in your head,actual control scenarios, games that test your ability to multitask; all skills that are essential to this job.” Hisperfect score earned him the designation of “well qualified” a status in the FAA’s old hiring nomenclaturegiven to anyone with a score on the AT-SAT above 85. “Well qualified” CTI graduates were considered thebest of the best according to a source at the FAA who wishes to remain anonymous.

The FAA used to give hiring preference to CTI graduates, like Douglas, who achieved the “well qualified”designation on the AT-SAT, successfully earned a degree from a CTI program and obtained arecommendation from the CTI program’s administrators. Douglas had it all as he awaited the FAA’s 2014bid for jobs. It appeared, to him, that he was at the front of the FAA’s line to be hired as 2013 came to aclose. “I finished my air traffic control program with a 4.0 and I interned for the FAA. I think that I had adecent chance, absolutely,” he said.

But just as Matthew Douglas prepared for a new year and a new life, the FAA dropped a bomb. OnDecember 30, 2013 the FAA threw out his AT-SAT score, CTI diploma and recommendations from his CTIprogram administrators. In fact, the FAA threw out the AT-SAT scores and CTI qualifications of anestimated 3000 CTI graduates and military veterans who were all previously designated “well qualified” tobecome air traffic controllers. The FAA told them all to start over. But this time, when they applied for ajob, their college degrees and previous military experience would mean nothing. They would now competewith thousands of people the agency calls “off the street hires”; anyone who wants to, can walk in off thestreet without any previous training and apply for an air traffic control job. The FAA’s only requirements, toapply, are be a U.S. citizen, have a high school diploma, speak English and pass the FAA’s new BQ,Biographical Questionnaire. What Douglas and thousands of other CTI graduates didn’t know was that theFAA was planning these changes long before the agency made them public.

FAA administrator Michael Huerta announced pending changes to the Air Traffic Control hiring process inApril 2013, several months before Douglas and the other CTI graduates were discarded. But Huerta madeno mention of what the agency actually planned to do as Douglas and his CTI classmates were preparingto graduate. An FAA press release issued in April 2013 says, “Administrator Michael Huerta has made anhistoric commitment to transform the Federal Aviation Administration (FAA) into a more diverse and




inclusive workplace that reflects, understands, and relates to the diverse customers we serve.”

FAA administrator Michael HuertaThe FAA made those changes based on a barrier analysis started in 2012 which identified, “… four ofseven decision points in the air traffic controller hiring process that resulted in adverse impact to applicantsfrom at least one demographic group.” In other words, the agency’s analysis determined there werebarriers for minority applicants to obtain the FAA’s air traffic control jobs. The FAA then hired Atlanta basedAPT Metrics to further analyze those barriers and recommend solutions. APT Metrics issued its report,Extension to barrier Analysis of Air Traffic Control Specialist Centralized Hiring Process

on April 16, 2013. It says that while the CTI schools appear to be a preferred applicant source, theprogram “…tends to have very little diversity.” This is a conclusion the Association of Collegiate TrainingInstitutions, a group representing the 36 CTI schools, fiercely disputes.

Doug Williams, a spokesperson for the association says the barrier analysis and APT Metrics report wereflawed because they considered CTI enrollment at 4 year schools and failed to include enrollment datafrom two year schools, like community colleges, which have much larger minority enrollments. The APTMetrics report also took aim at the AT-SAT as a screening tool for air traffic control candidates and it’s wellqualified scoring preference saying, “One potential solution to the issue is to replace the use of the AT-SAT…with a measure that can differentiate candidates without increasing adverse impact.” Thatreplacement became the Biographical Questionnaire which Matthew Douglas failed.

As a Native American, Matthew Douglas is the kind of diverse candidate you would think the FAA wantsand he’s in favor of diversity. “It generates a better atmosphere when you have people from differentbackgrounds I completely agree with it,” he said. 30 year old Moranda Reilly also agrees with diversity.She graduated from the CTI program at the Community College of Baltimore County, Maryland in 2013. Reilly spoke exclusively with FOX Business about her experience applying for a job with the FAA andtaking the BQ.

Moranda Reilly - CTI GraduateMoranda Reilly is eager to become an air traffic controller. She was the aviation club president at hercommunity college, won the National Air Traffic Controller Association’s contest explaining the rolecontrollers play in aviation and excelled in her classes. Reilly is hooked on aviation and now getting herprivate pilot’s license. “I think it’s fascinating. This industry is a unique one,” she said. At first, the FAA’shiring changes didn’t worry Reilly who scored 86 on her AT-SAT, lower than Matthew Douglas scored, butstill considered “well qualified.” And Reilly had something Douglas didn’t; access to the BQ test and theright answers. “I was shocked when I first heard it,” she told FOX Business.




Moranda Reilly says friends in the CTI program encouraged her to join an organization called the NationalBlack Coalition of Federal Aviation Employees or NBCFAE. It’s one of several organizations which offermembership to people of color and minorities who work for the FAA. Reilly says her friends told her joiningthe NBCFAE, as a female applicant, would help improve her chances of being hired. The NBCFAE WEBpage says it has 1000 members and advocates on behalf of 5000 African American and minority FAAemployees. “For over 35 years, NBCFAE, a nationwide network, has been dedicated to promoting equalemployment for African Americans, female and minority employees; improving employee-managementrelations and providing an effective liaison amongst FAA employees and the community at large.” Reillysigned up just as the FAA launched a new round of hiring in February 2014.

Reilly told FOX Business that she received a recorded voice text message from FAA employee and airtraffic controller Shelton Snow a few days after the FAA hiring process started and applicants began takingthe BQ. Candidates were, and still are, allowed to take the test unsupervised, on their own time and ontheir home computers over a two week period.

Snow is an FAA employee and president of the NBCFAE’s Washington Suburban Chapter. He has recentlybeen promoted to be an FAA Front Line Manager at the FAA’s New York Center.

Moranda Reilly says Snow sent her and other ATC applicants a recorded message on February 12, 2014as they were preparing to take the Biographical Questionnaire test. Reilly shared the recording exclusivelywith FOX Business.

Snow Voice Text Message:

“I know each of you are eager very eager to apply for this job vacancy announcement and trust aftertonight you will be able to do so….there is some valuable pieces of information that I have taken a screenshot of and I am going to send that to you via email. Trust and believe it will be something you willappreciate to the utmost. Keep in mind we are trying to maximize your opportunities…I am going to send itout to each of you and as you progress through the stages refer to those images so you will know whichicons you should select…I am about 99 point 99 percent sure that it is exactly how you need to answereach question in order to get through the first phase.”

Shelton Snow - FAA employee and president of the NBCFAE’s Washington Suburban Chapter Snow refused to discuss the recording with FOX Business and has declined several requests for interviewstelling FOX Business, “Journalists must stop contacting me.” When confronted on camera by FOXBusiness about the allegations of cheating and providing answers to the test, Snow declined to comment. On his recorded message, Snow discusses the screen shots and icons applicants should select. Snowgoes on to refer to “one of my HR representatives” and giving them “the opportunity to sign off on it beforeyou actually click it.” The recording was sent to NBCFAE associate members when it became clear some




of them were failing the BQ test.

Snow Voice Text Message:

“People have been getting rejection notices and those rejection notices have been coming after about 24 to36 hours after clicking submit and I want to avoid that so what we are going to do is we are going to takeour time and we’re going to make sure that everything we click on, and you going to even have to go backto your resume and make some changes because one of our members and I have caught something andwe want to go back and want to fine tune those details…”NBCFAE National President Paquita Bradley also declined repeated requests from FOX Business todiscuss the recording and accusations that NBCFAE members helped applicants cheat. The FAA rejectedrequests from FOX Business to grant interviews with FAA employees about the BQ but in a writtenstatement about the cheating said, “No individuals have made credible allegations to the FAA about thisissue.” Reilly says, “I want to talk about it because I joined the NBCFAE and when I saw what was goingon, I knew that I had to stand on the right side of the fence.”

Reilly says Snow and other NBCFAE officials conducted workshops showing NBCFAE associate members,applying for FAA jobs, the correct answers to select on the BQ as well as key words to use on theirresumes in order to be selected by FAA hiring personnel who were also NBCFAE members. Reilly insiststhat she didn’t cheat. She failed the BQ. “It breaks your heart to work so hard for something and forsomeone to say that you’re not eligible because of a personality exam” she said. Disappointed but notdeterred, Reilly decided to do something about what she says she witnessed.

Reilly went to her CTI advisor with the recording she got from Snow. The advisor told Reilly to contactaviation lawyer Michael Pearson a retired air traffic controller who now practices law in Phoenix, Arizona. “Ibelieve the flying public has a right to know this is going on. I believe the people engaged in this behaviorneed to be held accountable,” he said.

Pearson represents Moranda Reilly and several CTI graduates who may sue the FAA if they can obtainclass action status. As of now, they’ve filed an equal employment opportunity complaint with the FAA’sEqual Employment Opportunity office. But Pearson suspects something more egregious is taking place.“You had social engineering in my belief, my opinion, going on. It was driven by two arms of the FAA, twodifferent organizations. One was a human resources group and I believe there was another group fordifferent motives were engaging in what I believe is discrimination against qualified candidates,” he said. At the center of the accusations is the BQ which Pearson says is being misused to disqualify worthy jobapplicants like Moranda Reilly and Matthew Douglas.

The FAA, responding to questions from FOX Business, insisted the BQ was professionally developed and“…validated based upon years of extensive research...” The new hiring process was implemented “…toensure the FAA selects applicants with the highest probability of successfully completing our rigorous airtraffic controller training program and achieving final certification as an ATCS (Air Traffic Control




Specialist).”

Applicants who pass the BQ and subsequent FAA hiring review are sent to the agency’s training academyin Oklahoma City, Oklahoma. Course work there lasts 13 weeks but it takes another two to three years,during which trainees apprentice at air traffic control centers across the country, for an applicant to achieveCertified Professional Controller status or CPC. It can cost as much as $420,000, on average, to fully trainan air traffic controller and the FAA tries to select candidates based on the likelihood they will successfullycomplete their training. But, CTI School advocates say the old program saved the FAA time and money.

Photo Source: ReutersData from the FAA indicates CTI graduates complete their FAA academy course work five weeks soonerthan off the street hires. And, CTI advocates say CTI graduates are more likely to achieve certifiedprofessional controller (CPC) status which saves the FAA money since the CTI graduates complete theprogram at greater rate than applicants hired off the street. FOX Business obtained a never made publicFAA report that supports those claims. Studies of Next Generation Air Traffic Control Specialists II: Analysisof Facility Training Outcomes by Recruitment Source was written in October 2014 by Dana Broach, Ph.D. aresearcher at the FAA’s Civil Aerospace Medical Institute in Oklahoma City, Oklahoma. The reportconcludes, “Overall, larger proportions of…CTI hires achieved CPC (Certified Professional Controller)status than did general public hires.”

The FAA refused to let Broach talk to FOX Business but called his report “inconclusive”. His unpublishedreport however speaks loudly and recommends preferring, “…CTI hires over general public hires…”because it “… could produce more net CPCs (Certified Professional Controller) than a policy of equal or nopreference for recruitment sources.” It’s just one of several reports Broach has authored questioning theFAA’s current hiring procedures.

Broach co-authored another report last year which questions the FAA’s use of biographical data to predicttraining success; one of the reasons the FAA says it now uses the BQ. Using Biodata to Select Air TrafficControllers, October 2014

says, “…the evidence for using these biodata items for controller selection is weak.” The reportrecommends additional research is needed to validate items predictive of success in training. The FAAdeclined requests to discuss Broach’s research. Moranda Reilly finds it all very troubling. “They just basean entire hiring force on biographical data and now they’re saying that it’s weak so how can you standbehind what you, what you’ve put in place?” Matthew Douglas says it makes no sense. “Where’s the logicbehind it? If it’s weak then why would you use it?”

Congress asked the same questions last year during hearings on the hiring changes. The FAA has not yetfully responded but has said publicly, “Disclosure of the Biographical Assessment items and the basis forscoring and weighting given to each question would diminish the validity and utility of the instrument for the




selection of persons into the ATCS (Air Traffic Control Specialst) occupation.” Congressman RandyHultgren (R) Illinois doesn’t believe it. “I just fundamentally disagree with that. You might get lucky infinding a few people that are qualified and able to do this, but again what I’ve seen from CTI programs,you’ve got passionate people willing to commit themselves.” When FOX Business played the Snow voicetext message for Hultgren, he called it “cheating.”

Hultgren is cosponsoring the Air Traffic Controllers Hiring Act of 2015 to force the FAA to abandon the BQand restore preferred hiring status for CTI graduates and military veterans who score high enough on theAT-SAT to be designated “well qualified”. “The biggest objective is to make sure that our air travel is still thesafest in the world and air traffic controllers are a big part of that,” he said. The bill also requires the FAA tolet the 3000 CTI graduates whose lives were disrupted by the BQ’s implementation, reapply for air trafficcontrol jobs even if they are older than the 31 year age cutoff.

But the FAA continues to stand behind the controversial BQ saying it helps select, “…those applicants withthe highest probability of success in the FAA’s rigorous air traffic controller training process. Of the 1591cleared to be hired in 2014, 742 have been sent, as of May 2015, to the Academy with 564 passing theirbasic training. The 24 percent washout rate is consistent with failure rates under the FAA’s old hiringguidelines according to a FAA source who wishes to remain anonymous.

Moranda Reilly doubts a new law will help her. “I will never be an air traffic controller and it’s heartbreaking, it really is,” she said. Matthew Douglas is more optimistic and he has a message for the FAA.“You’re toying with lives. You’re toying with students who invested so much time and effort into this andyou’re also toying with aviation safety. There’s 3000 of us who are more than willing to do the work so ifanyone wants to reach out to us please do, we’re ready, we’re passionate and we want to work.”

Additional reporting by Pamela Browne, Gregory Johnson and Mallory EdmondsonSponsored Stories You May Like


EXHIBIT 9



U.S. Department of Transportation

Federa l Aviation Administration

Mr. Jorge Rojas 6404 S. Sagewood Circle Mesa, AZ 85212

Dear Mr. Rojas:

800 Independence Ave. S.W. Washington, DC 20591

This letter follows Air Traffic Services' February 9 response to your FOIA request 2015-009300. The disk enclose with our response had some anoma lies that made portions of the records unreadable. That issue has been resolved and enclosed is a new disk.

We apologize for any inconvenience.

Sincerely ,

Pl ty uty Vice President , Air Traffic Services

EXHIBIT 10




FAA Contradicts Court Documents Related to Emails |Fox Business

The Federal Aviation Administration is giving conflicting accounts of what may have happened to crucialemails at the center of its air traffic control cheating scandal, the FOX Business Network has learned.

As reported by FOX last week, the FAA admitted in motions filed in Federal District Court in Arizona statethat some of the tapes which record and store email communication between FAA employees are“corrupted” and unrecoverable.

The motions include a document titled Declaration of Daniel Maggard, who is an investigative specialist inthe Digital Media Analysis Unit of the FAA. According to his declaration, the agency used two differentemail systems, one of which was Lotus Notes. As first reported by FOX’s “Trouble in the Skies”investigation last year, air traffic control candidates suing the FAA have requested, through the Freedom ofInformation Act (FOIA), the release of emails from the Lotus Notes system from December 1, 2013 throughApril 23, 2014.

According to Maggard, “The Lotus Notes email records are retrieved from disaster recovery tapes andstored with an outside contractor…The Lotus Notes Archive for December of 2013 was unable to retrievedata and was identified as unreadable and corrupted.” The Maggard declaration goes on to state, “TheAgency’s messaging Service Team informed me that they tried several techniques to recover and retrievethe data from the December 2013 disaster recovery tapes, but they were unsuccessful.”

FOX Business called Daniel Maggard on Wednesday March 2, 2016 and asked him to identify who “The




Agency’s Messaging Service Team” referred to. Maggard responded, “Iron Mountain.”

Iron Mountain (IRM), an international firm that stores data tapes, tells a different story. In a statement toFOX Business;

“Iron Mountain does provide data backup tape storage for the FAA, but does not do any data recovery ordata restoration services for the FAA (or any of its customers).....

“Iron Mountain does provide data backup tape storage for the FAA, but does not do any data recovery ordata restoration services for the FAA (or any of its customers); instead, we utilize a third-party provider forthose services. We have reviewed our tape delivery records for the FAA – and the service records for ourthird-party recovery provider – and confirmed that we did deliver tapes back to the FAA as stated in themotion; however, our third-party provider did not provide any type [of] recovery services for the FAA at thattime.”

– Iron Mountain, March 7, 2016

In response, the FAA tells FOX Business, “We have no response at this time because of pending litigation."

Sponsored Stories You May Like

- Iron Mountain, March 7, 2016


EXHIBIT 11



O!nngre.as nf tlf e lltnitell ~fates Dht.af1ingtun, il<!t 20515

The Honorable Michael P. Huerta Administrator Federal Aviation Administration 800 Independence Avenue, S.W ., #1010 Washington, D.C. 20591

Dear Administrator Huerta:

May 29, 2015

As you are aware, concerns have been raised with the efficacy, fairness, and validity of the Federal Aviation Administration's (FAA) newest hiring process for air traffic controllers. We have previously written and met with you to express concerns regarding the interim hiring process that the FAA used in 2014 to select candidates for air traffic control. These concerns included the lack of transparency in developing and carrying out the new interim process, as well as the short notice that applicants for the developmental Air Traffic Control Specialist positions received regarding the major change in hiring process. This change resulted in a number of applicants without recourse or proper explanation for their rejection from the above mentioned positions.

It appears that the new hiring process that the FAA is utilizing has not responded. to the concerns that many in the aviation community and Congress have raised. Air traffic controllers play a vital role in our nation's aviation system. Every day, air traffic controllers' actions enable millions of travelers to fly through our nation's airspace safely. To ensure our skies continue to be the safest in the world, the FAA needs to carefully examine its hiring practices to guarantee that the process facilitates only the highest quality of candidates for air traffic control.

In light of recent reports challenging the fairness and effectiveness of the new hiring process, we ask that you provide any and all information or reports that substantiated the FAA's newest hiring process. Furthermore, the report of possible cheating in the latest hiring process, facilitated by the actions of an FAA employee, is as disturbing as it is unacceptable. We request that the FAA fully investigate these claims of wrongdoing by the FAA employee, including the extent to which others were aware of wrongdoing, and provide the corrective actions the FAA plans to take in response. As the FAA conducts this investigation, we request to be kept fully apprised of any findings or actions taken.

We appreciate your assistance with the request and ask for a response no later than June 26, 2015 . If you have any questions please feel free to contact Matthew Satterley at (202) 225-6572.

Sincerely,

PRINTED ON RECYCLED PAPER


Frank A. LoBiondo Member of Congress

~ John L. Mica Member of Congress

-~,£ Sam Graves Member of Congress

~-- -~ ~ -Member of Congress

9;;gg Member of Congress

~ e(~ Member of Congress

1!'Jblid2~ Walter B. Jones Member of Congress

11:~~ Member of Congress

Paul Gosar Member of Congress

Daniel Webster Member of Congress

Kevin Cramer Member of Congress

Case 2:15-cv-01709-GMS Document 22-1 Filed 03/30/16 Page 91 of 149RANDY HULTGREN

14TH DISTRICT, ILUNOIS

qtongress of tbe mntteb ~tates 1!,ouse of l\epresentatibes ~ a~fJington, tllCC 20515- 1314

June 11, 20 14

The Honorable Secretary Anthony Foxx U.S. Department of Transportation 1200 New Jersey Ave SE Washington , DC 20590

RE: Federal Aviation Administration Hiring Practices

Dear Secretary Foxx:

332 CANNON HOUSL Orne£ BUILDING (202} 225-2976

1797 WEST STATE STREET, SUITE A GCMVA, IL 60134

(630} 232-7104

http ://hu ltgron.house.gov

In December 2013 , the Federal Aviation Administration (FAA) released their" I 0-Year Strategy for the Air Traffic Control Workforce." This plan outlined an effort to replace more than 10,000 Air Traffic Controllers over the next decade. This announcement was intended to create opportunity to become part of the next generation of Air Traffic Controllers. There are strong signs that the plan has achieved just the opposite of its original intent and has resulted in unjust economic injury to qualified candidates. Preserving safety amongst travelers and within the aviation community should always remain a priority.

As you are aware , to meet requirements of the Equal Employment Opportunity Commission ' s Management Directive 715, the Office of the Assistant Administrator for Civil Rights preformed a Barrier Analysis. Accordingly , the FAA was directed to adopt a new hiring system, ensuring a workplace "free of barriers that impede full opportunities." Under the new hiring process, applicants must now pass two tests: I. a Biographical Assessment and 2. an air traffic selection and training (AT-SAT) test. The ATSAT is available only to candidates earning passing scores from the Assessment and meeting minimal requirements. Once a candidate meets basic qualifications and passes the two pre-employment tests , they are assigned to three groups contingent on scores, military veteran status, and relevant degrees.

The newly revised hiring process is saturated with a disturbing lack of transparency in regards to how Air Traffic Controllers are selected. Applicants are not required to possess previous air traffic control experience, specialized technical degrees, aviation experience , or additional capabilities. Candidates need only demonstrate three years of work experience, a Bachelor's degree , or three years combined education and work experience along with passage of the FAA pre-employment tests. Preference is no longer given to candidates receiving , or currently enrolled in, specialized degree programs.

Previous hiring by the FAA did not include a prerequisite test to the AT-SAT in the form of the Biographical Assessment. Thousands of applicants passed at a qualifying 70 percent, prompting the FAA to create a "highly qualified" threshold of 85 percent or above. Over the last three years, an increasing disparity in race and national origin for those scoring above the threshold emerged. For this reason , amongst others , the Barrier Analysis recommended the FAA consider race , national origin , and gender diversity as high priorities in configuring the new hiring process. While it is agreed that any hiring process should offer equal opportunity and be without discrimination, that consideration must be counterbalanced by the need for specialized education and training, ensuring the absolute safety of our citizens.

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Although the new hiring process seeks to eliminate ex ist ing barriers, it is our understand ing that new barriers to qualified applicants have been put in place. In order to sit for the AT-SAT ski lls test, cand idates who have invested persona l resources into years of specia lized training must now pass the en igmat ic Biographical Assessment. If you fail the "assess ment," you are prohibited from taking the aptitude exam. There are numerous examp les of app licants that have previously passed the AT-SAT with perfect scores and have not passed this new assessment. Candidates rece ive pass or fa il marks, without numerical value or any exp lanation . What the assessment embodies and how it is scored remains a mystery. Of the est imated 28,500 app licants who began under the new hiring process , only 2, I 03 advanced to the AT-SAT. Severa l app licants c laim they were not informed of this new hurdle in the hiring process . It appears that applicants with the highest leve l of education and training are now be ing "tested" for undetermin ed factors and rolling the dice on a huge upfront investment that might leave them hav ing outstanding qualifications and expert ise, but no job.

Addit ionally , applicants have expressed further frustrat ions over the prolonged wa iting period for receiving their AT-SAT results. It is our understanding that applicants who have passed the Biograp hical Assessme nt have "aged out" after turning 31, while stuck in the bureaucratic queue waiting on their ATSA T test scores.

The above findings raise disturbing questions as to why certain new hiring practices have been appl ied without eas ily understood , logical exp lanatio ns.

We ask the FAA to provide answers to the following conce rns:

I. Please provide a complete samp le of the Biographical Assessme nt, as well as accompanyi ng scor ing proced ures and criter ia for scor ing a "pass " or "fa il."

2 . Please provide your plan for providing relief for those app licants who had "aged out" during the scoring of their AT-SAT. Under the old system , test scores were immediate ly avai lab le electron ically . In this age of technology, it is disconcerting that an app licant shou ld wa it up to 6 week s to be informed of their AT-SAT results.

3. Please detail a ll commun icat ions that took place betwee n the FAA and educationa l inst itutions leading up to the change to the new hiring process. Lnclude a detailed list of educatio nal institutions and the spec ific dates in which FAA contacted them. Please also detail how FAA conveyed the hiring process change to all students who were already in the pipeline for advanced degrees to become Air Traffic Contro llers.

4. Finally, please provide metrics on how the new hiring process has enhanced av iat ion safety overa ll. Also, provid e metrics on how the new process has changed the demographics of app licants who will successfully enter the marketplace as Air Traffic Controll ers, including race, national origin, and gender diversity.

Sincere ly,


~F-Member of Congress

1/AfJ~ twl William Enyart ~

Member of Congress

~ Bradley Schneider Member of Congress

Member of Congress

Daniel Lipinski Member of Congress

..

'

Case 2:15-cv-01709-GMS Document 22-1 Filed 03/30/16 Page 94 of 149COMMITIEE ON APPROPRIATIONS, RANKING MEMBER

lowey.house.gov

WASltlNGI.Q_N

SUBCOMMITTEE ON STATE, FOREIGN OPERATIONS, AND RELATED PROGRAMS,

RANKING MEMBER

2365 RAYBURN HOUSE OFFICE BUILOING WASHINGTON, DC20515

Mr. Roderick D. Hall

~ita ftl. 1£.ob.lep QCongreS'z of tbe W'nitcb ~tate%

l 7tb J'lilltrtct, ~el.tl !}ot'lt

Februaty 4, 2014

Assistant Administrator For Government and Industry Affairs Federal Aviation Administration By fax

Dear Mr. Hall:

1202) 225--6506 FAX: (Wl) 225-0546

WESTCHESTER

222 MAMARONECKAVCNUE SUITE 312

WHITE PLAINS, NY 10605 {914) 428-1707

FAX: (914) 328-1505

flQCKl,AND

67 NORTH MAIN STRUT SUITE 101

NEW CITY, NY 10956 (845) 639-3465

FAX: (845) 634-4079

~ writing on behalf of my constituen Sheldon f Monsey, New York. ._contacted me about his son-in-law, Mr.~o~

""!l•••••••••••••••bho has been ttying to become an Air Traffic Controller for some time .

......., received a copy of a letter sent to colleges and universities that participate in the Air Traffic Collegiate Training Initiative (AT-CTI) program from Mr. Joseph Teixeira, Vice President for Safety and Technical Training at the Federal Aviation Administration's (FAA) Air Traffic Organization, which outlines changes by which the FAA will select its Air Traffic Controller (ATC) candidates. akes issue with the changes. Specifically, he doesn't understand why in the FAA's A Plan for the Future: JO-Year Strategy for the Air Traffic Control Workforce, it states the FAA has "far exceeded" its target range, with twice the

d applicants expected, but will begin a new recruiting eff01i in Februmy. Thieelll ••• .._ understanding is that:

1. Existing AT-CTI graduates must re-apply to the general public announcement to be considered for hiring.

2. The assessment test scores that have already been earned will be erased and applicants must re-test.

3. None of his son-in-law's a_ir traffic training or education will be considered in the hiring process because "selections will now be fully automated, grouping candidates by assessment scores and veterans' preference."

takes issue with these decisions and believes the pool is being opened to those who haven't demonstrated skill in the field. He says those who have completed the courses have demonstrated competence, and can be safely assumed by the FAA a good investment for final training.

I asked my District Representative Bill Colona to contact Mr. -.who told Bill he graduated i~ith from the T b

PRINTro ON RECYCLED PAPER


-••...-:n X and successfully completed the Air Traffic Collegiate Training Initiative, which is what the FAA stated would be its main source for hiring. He takes issue with the expansion of the hiring pool, and with having to retake the AT-SAT test, on which he scored "well qualified."

I enclose copies of letters from nd Mr. Teixeira and would appreciate your looking into these matters and addressin~and p concerns in writing.

Please send all correspondence to my White Plains District Office. If you have any questions, please contact my District Representative Bill Colona at (914) 428-1707 or by e-mail at [email protected].

NML:bc

Sin ere ,

~ taM. Lowey ember of Congress

UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 PENNSYLVANIA AVENUE , NW, WASHINGTON, DC 20425 www.usccr.gov

1

Michael P. Huerta, Administrator

U.S. Department of Transportation

Federal Aviation Administration

800 Independence Avenue, SW

Washington, DC 20591

June 4, 2015

Dear Administrator Huerta:

I write as one member of the U.S. Commission on Civil Rights, and not on behalf

of the Commission as a whole. I also write as a concerned frequent flier who has no

desire to find himself appearing as “Victim No. 6” in accounts of an airplane disaster.1

Americans have long assumed that when hiring air traffic controllers, the FAA

tries to hire the most qualified people for the job. Unfortunately, news reports indicate

that the FAA has abandoned or diluted objective standards of evaluating competence,

such as having obtained a college degree in air traffic control and obtaining a score of 85

or above on the Air Traffic Selection and Training Exam (AT-SAT).2

It is even more troubling that many of these reports suggest that the FAA changed

its selection procedures because it wanted fewer white male air traffic controllers. A news

report quotes Secretary Foxx as telling Congress, “The FAA took an opportunity to take a

broad opening of the aperture if you will to try to get a larger universe of applicants into

the program”.3 I don’t speak jive

4, but I am fluent in bureaucratese, and this is easy to

translate: the FAA didn’t like the racial and gender composition of the people in its pool

of potential air traffic controllers. It is hard to imagine a non-racially motivated reason for

jettisoning a pool of people who had already been rated as qualified. Maybe I picked the

wrong week to stop using hallucinogens.5

1 See generally Airplane! (1980).

2 Adam Shapiro, Trouble in the Skies, FOX BUSINESS, May 20, 2015,

http://www.foxbusiness.com/industries/2015/05/20/trouble-in-skies/; John Hook, FAA changes hiring

practices for ATC, CTI students passed over for jobs despite being qualified, FOX 10 News, May 7, 2014,

http://www.fox10phoenix.com/story/25448705/2014/05/07/faa-changes-hiring-practices-for-atc-cti-

students-passed-over-for-jobs-despite-being-qualified; Jon Hilkevitch, 2 Illinois lawmakers seek to dump

new FAA controller hiring rules, CHICAGO TRIBUNE, Sept. 19, 2014,

http://www.chicagotribune.com/news/ct-air-traffic-controller-hiring-met--20140919-story html. 3 John Hook, FAA changes hiring practices for ATC, CTI students passed over for jobs despite being

qualified, FOX 10 News, May 7, 2014, http://www fox10phoenix.com/story/25448705/2014/05/07/faa-

changes-hiring-practices-for-atc-cti-students-passed-over-for-jobs-despite-being-qualified. 4 See, e.g., Jive Lady, Airplane! (1980).

5 Cf. McCroskey, Airplane! (1980).




2

It is particularly odd that the FAA would change its selection procedures when its

own studies indicate that one’s AT-SAT score is a good predictor as to whether one will

successfully complete air traffic controller training.6 One of the studies indicates that the

AT-SAT score is one of two pieces of biodata – the other being age – that are positively

associated with successfully completing air traffic controller training at all types of

facilities.7 This study also stated that one reason for the FAA’s recent revision of the air

traffic controller selection procedures was that women and certain minorities were

disproportionately likely to receive insufficiently high AT-SAT scores.8 As the authors of

the study wrote:

However, AT-SAT has been found to be a valid predictor of both training

and job performance of controllers. The issue is how to reduce adverse

impact and still maintain a valid process for selecting the best-qualified

applicants for the job. One such strategy might be to use biodata to

supplement cognitive testing in selecting controllers.9

Despite this hope, the researchers found that the AT-SAT was the only piece of

biodata (other than age) that was a useful predictor of whether an individual would

successfully complete air traffic controller training across all types of facilities. This was

the case even for biodata that one might think would predict successful completion of air

traffic controller training, such as high school GPA and holding a pilot’s license.10

As it

6 Dana Broach, et al., The Validity of the Air Traffic Selection and Training (AT-SAT) Test Battery in

Operational Use, Civil Aerospace Medical Institute, Federal Aviation Administration, at 6 (March 2013).

The current study investigated the validity of AT-SAT as a predictor of achievement of

CPC status at the first field facility. The results showed that AT-SAT was a valid

predictor of training outcome for the next generation of air traffic controllers. First, the

correlation between AT-SAT score and training status was positive and significant.

Second, persons with higher scores were more likely to certify at the first assigned field

facility than were persons with lower scores as shown by the χ2

analysis. Third, logistic

regression analysis found the odds of certifying at the first facility increased with AT-

SAT score. Taken together, the results of the present investigation and those of the two

previous criterion-related validation studies show that AT-SAT is a valid predictor of

both OJT outcome (achievement of CPC status) and, more importantly, of on-the-job

performance after certification. In other words, the empirical evidence supports the

validity of AT-SAT as a personnel selection procedure for the ATCS occupation. 7 Linda G. Pierce, et al., Using Biodata to Select Air Traffic Controllers, Civil Aerospace Medical Institute,

Federal Aviation Administration,

http://www.faa.gov/data research/research/med humanfacs/oamtechreports/2010s/media/201408.pdf (Oct.

2014).

A further confidence-shattering blow to Ted Striker is that holding any sort of pilot’s license was only

positively associated with completing training at an en route facility. Apparently working in a terminal

facility is a totally different type of controlling altogether. See id. at 9; see also Ted Striker, Airplane!

(1980). 8 Id. at 2.

9 Id. at 2.

10 Id. at 7.




3

turns out, success in tasks that require a high level of cognitive ability is best predicted by

cognitive tests.

Under the FAA’s new procedures, aspiring air traffic controllers are required to

take a “biographical questionnaire,” [“BQ”] before taking the AT-SAT.11

The Chicago

Tribune reported, “Some of the 62 questions on the multiple-choice test, which the

Tribune reviewed, appear geared toward evaluating the test-taker’s personality and self-

image. It included questions about how peers would describe the individual and the age at

which the person started to earn money.”12

FOX Business reported that the BQ asks

applicants how many high school sports they played,13

and an Arizona television station

reported that one of the questions is, “What has been the major cause of your failures?”14

If an applicant’s high school GPA does not accurately predict successful completion of

air traffic controller training, it is difficult to be optimistic that the seemingly random

questions on the BQ have any predictive power. On the other hand, perhaps I am

underestimating the predictive power of the BQ. Maybe Kareem Abdul-Jabbar’s

experience with the Lakers was a useful predictor of his ability to co-pilot a plane –

provided he avoided eating the fish.15

The FAA may claim that successful completion of the AT-SAT is still required to

be hired as an air traffic controller. This is true. However, the BQ serves as an initial

screening device that applicants must pass in order to take the AT-SAT. There is reason

to think that people who would score highly on the AT-SAT – again, the only generally

accurate predictor of successfully completing air traffic controller training that the FAA

may use – are being screened out by the BQ. In fact, one such person, who had received a

perfect score on the AT-SAT, is profiled in the FOX Business report on the new selection

procedures.16

It was somewhat surprising that we did not find high school GPA or having a degree

from a CTI school to predict training status. It is possible that by including HS math GPA

in this study, which we found to predict training status of en route trainees, we obscured

the relationship between training status and high school GPA seen in previous research. 11

Jon Hilkevitch, 2 Illinois lawmakers seek to dump new FAA controller hiring rules, CHICAGO TRIBUNE,

Sept. 19, 2014, http://www.chicagotribune.com/news/ct-air-traffic-controller-hiring-met--20140919-

story html; Susan Carey, FAA Closes a Hiring Runway for Air-Traffic Controllers, WALL ST. J., May 22,

2014, SB10001424052702304655304579551972980383170. 12

Jon Hilkevitch, 2 Illinois lawmakers seek to dump new FAA controller hiring rules, CHICAGO TRIBUNE,

Sept. 19, 2014, http://www.chicagotribune.com/news/ct-air-traffic-controller-hiring-met--20140919-

story html. 13

Adam Shapiro, Trouble in the Skies, FOX BUSINESS, May 20, 2015,

http://www.foxbusiness.com/industries/2015/05/20/trouble-in-skies/. 14

John Hook, FAA changes hiring practices for ATC, CTI students passed over for jobs despite being

qualified, FOX 10 News, May 7, 2014, http://www fox10phoenix.com/story/25448705/2014/05/07/faa-

changes-hiring-practices-for-atc-cti-students-passed-over-for-jobs-despite-being-qualified. 15

See Roger Murdock, Airplane! (1980). 16

Adam Shapiro, Trouble in the Skies, FOX BUSINESS, May 20, 2015,

http://www.foxbusiness.com/industries/2015/05/20/trouble-in-skies/.




4

I do not know whether having a degree from a CTI school is a valuable screening

mechanism, nor is that particularly important in regard to the concerns expressed in this

letter. One of the FAA’s studies found no relationship between a degree from a CTI

school and success as an air traffic controller, but suggested that this may be due to

differences in training at CTI schools.17

It is at least objective, unlike the BQ. You either

fulfilled the degree requirements, which include a core curriculum set by the FAA, or you

did not.18

More importantly, the FAA should not strip applicants of already-bestowed

“qualified” ratings (which were achieved in part through AT-SAT scores) even if it

decides not to use the CTI program in future.19

The FAA likely has a legal problem because of its embrace of the BQ. That

problem is that it may be violating Title VII’s prohibitions against discrimination on the

basis of race. Until December 2014, the FAA primarily used degrees from CTI

[Controller Training Initiative] schools and AT-SAT scores to determine whether

applicants were qualified.20

The FAA can of course change its selection procedures.

However, it did not simply change its selection procedures prospectively. Instead, it

removed thousands of people from the hiring pool who had already been found to be

qualified based on their AT-SAT scores and CTI degrees and told them that they must

pass the BQ in order to be hired.21

This set of facts is very similar to that in Ricci v. DeStefano. In Ricci, the city of

New Haven threw out the results of tests for promotions within the fire department

because the test had a disparate impact on blacks and Hispanics.22

It claimed that it feared

a disparate impact lawsuit. The Supreme Court held that New Haven had violated the

disparate treatment provisions of Title VII. The Court wrote:

17

Linda G. Pierce, et al., Using Biodata to Select Air Traffic Controllers, Civil Aerospace Medical

Institute, Federal Aviation Administration, at 7,

http://www.faa.gov/data research/research/med humanfacs/oamtechreports/2010s/media/201408.pdf (Oct.

2014). 18

Id. at 7. 19

Susan Carey, FAA Closes a Hiring Runway for Air-Traffic Controllers, WALL ST. J., May 22, 2014,

http://www.wsj.com/articles/SB10001424052702304655304579551972980383170. 20

Adam Shapiro, Trouble in the Skies, FOX Business, May 20, 2015,

http://www.foxbusiness.com/industries/2015/05/20/trouble-in-skies/; Susan Carey, FAA Closes a Hiring

Runway for Air-Traffic Controllers, WALL ST. J., May 22, 2014,

http://www.wsj.com/articles/SB10001424052702304655304579551972980383170. 21

Susan Carey, FAA Closes a Hiring Runway for Air-Traffic Controllers, WALL ST. J., May 22, 2014,

http://www.wsj.com/articles/SB10001424052702304655304579551972980383170.

The FAA first informed the schools on Dec. 30 [2013] that it was going to end its

practice of keeping "an inventory," or pool of applicants on the preferential list of

qualified controller candidates. The last time the agency put out a public call for jobs was

in 2009. 22

Ricci v. DeStefano, 557 U.S. 557, 566 (2009).




5

[We do not] question an employer’s affirmative efforts to ensure that all

groups have a fair opportunity to apply for promotions and to participate

in the process by which promotions will be made. But once that process

has been established and employers have made clear their selection

criteria, they may not then invalidate the test results, thus upsetting an

employee’s legitimate expectation not to be judged on the basis of race.

Doing so, absent a strong basis in evidence of an impermissible disparate

impact, amounts to the sort of racial preference Congress has disclaimed,

and is antithetical to the notion of a workplace where individuals are

guaranteed equal opportunity regardless of race. . . .

We hold only that, under Title VII, before an employer can engage in

intentional discrimination for the asserted purpose of avoiding or

remedying an unintentional disparate impact, the employer must have a

strong basis in evidence to believe it will be subject to disparate impact

liability if it fails to take the race-conscious, discriminatory action.23

[emphasis added]

Although the FAA is selecting people to be hired, not promoted, the same

principle applies. Like the city of New Haven, the FAA bent over backwards to try to

reduce the disparate impact effect of the AT-SAT test.24

As in Ricci, it appears that when

the selection procedure did not yield the desired racial mix, the FAA threw the results

out. The FAA has not alleged there is a strong basis in evidence it would be subject to

disparate impact liability if the people already deemed qualified by virtue of their

degrees, experience, and AT-SAT scores had been retained on the hiring list.25

Furthermore, the FAA cannot claim that it is not discriminating on the basis of

race because there is no evidence it is choosing people from the BQ based on their race.

First, all accounts of the BQ indicate that it is so opaque as to make it almost impossible

to determine how the FAA uses it to choose applicants. Second, the issue in Ricci was not

that the city of New Haven had decided to promote black or Hispanic firefighters instead

of higher-scoring white firefighters. The city had simply thrown out the scores from the

23

Id. at 585. 24

Dana Broach, et al., The Validity of the Air Traffic Selection and Training (AT-SAT) Test Battery in

Operational Use, Civil Aerospace Medical Institute, Federal Aviation Administration, at 1 (March 2013).

First, significant differences in score distributions by race and sex were observed in the

course of validation, with Blacks and Hispanics-Latinos scoring lower than Whites and

women scoring lower than men. The FAA re-weighted the AT-SAT subtests to mitigate

these group differences without substantially reducing validity. Second, the pass rate was

substantially higher than was originally projected. While a pass rate of about 67% was

predicted by Wise et al. after re-weighting, the actual pass rate in operational use has

been greater than 90%. [citations omitted] 25

Ricci at 585.




6

original test. That alone constituted racial discrimination. This issue is largely separate

from the question of the effectiveness of the FAA’s earlier criteria. Having established

the rules of the game, the FAA may not then refuse to recognize the winners because

their skin is the wrong hue.

It is one thing to select sociology students based on the color of their skin. It is

another to pick gravel contractors based on the color of their skin. It is quite another to

use skin color to choose air traffic controllers who are responsible for safely guiding

thousands of people to their destinations. There is only one possible response to such

lunacy:

Surely you can’t be serious.

And don’t call me Shirley!26

Sincerely,

Peter Kirsanow

Commissioner

26

See Dr. Rumack, Airplane! (1980).


Memorandum U.S. Department of Transportation

Office of the Secretary of Transportation Office of Inspector General

Subject: INFORMATION: Audit Announcement – Review of FAA Policies and Procedures for Hiring New Air Traffic Controllers Federal Aviation Administration Project No. 15A3003A000

Date: June 17, 2015

From: Matthew E. Hampton Assistant Inspector General for Aviation Audits

Reply to Attn. of: JA-10

To: Director, Audit and Evaluation The Federal Aviation Administration (FAA) currently employs approximately 14,000 air traffic controllers and is planning to hire more than 3,200 additional controllers over the next 2 years to offset future retirements. This represents the most controllers FAA will hire in a single year since fiscal year 2009. The Agency faces the significant challenge of selecting these new controllers and assigning them to air traffic facilities where needs dictate.

In 2010, our office we reviewed FAA’s process for screening, training, and assigning new air traffic control specialists.1 We found that although FAA used an aptitude test known as Air Traffic Selection and Training as a pre-employment screening tool, FAA was not using the test to determine the type of facility in which new controllers should be placed.

In February 2014, FAA made several changes to its controller hiring process. However, both Congress and the media have expressed concerns about the transparency and effectiveness of FAA’s revised processes. The Chairmen of the House Transportation and Infrastructure Committee and the Subcommittee for Aviation requested we review FAA’s air traffic control hiring programs and practices to fully examine any weaknesses in the integrity of the controller hiring processes. In addition, Senator Nelson expressed concerns about the new hiring process and requested that we look into the issue. Accordingly, we are initiating this audit to

1Review of Screening, Placement, and Initial Training of Newly Hired Air Traffic Controllers (OIG Report Number AV-2010-049), April 1, 2010.


2

identify (1) FAA’s justification for adopting the new hiring process and (2) the changes that have occurred in the hiring pool since the process was implemented.

We plan to begin the audit this month and will contact your audit liaison to schedule an entrance conference. If you have any questions, please contact me at 202-366-0500 or Robert Romich, Program Director, at 202-366-6478.

#

cc: DOT Audit Liaison, M-1 FAA Audit Liaison, AAE-100


Ẅħěň ǻ pŀǻňě șțǻřțș įțș fįňǻŀ đěșčěňț, ǻřě țħě pǻșșěňģěřș mǿřě čǿňčěřňěđ ǻbǿųț țħěčǿmpěțěňčě ǿř ǻbǿųț țħě șķįň čǿŀǿř ǿf țħě ǻįř-țřǻffįč čǿňțřǿŀŀěřș ǿň țħě ģřǿųňđ ẅħǿ ẅįŀŀħěŀp țħě pįŀǿț ŀǻňđ șǻfěŀỳ? Țħě ǻňșẅěř mǻỳ bě ǿbvįǿųș țǿ řěǻđěřș, įf ňǿț țǿ țħě Ǿbǻmǻǻđmįňįșțřǻțįǿň.

Ǻ řěčěňțŀỳ čǿmpŀěțěđ șįx-mǿňțħ įňvěșțįģǻțįǿň bỳ Fǿx Bųșįňěșș Ňěțẅǿřķ fǿųňđ țħǻț țħěFěđěřǻŀ Ǻvįǻțįǿň Ǻđmįňįșțřǻțįǿň ħǻș qųįěțŀỳ mǿvěđ ǻẅǻỳ fřǿm měřįț-bǻșěđ ħįřįňģčřįțěřįǻ įň ǿřđěř țǿ įňčřěǻșě țħě ňųmběř ǿf ẅǿměň ǻňđ mįňǿřįțįěș ẅħǿ șțǻff ǻįřpǿřț

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http://www.wsj.com/articles/affirmativeactionlandsintheairtrafficcontroltower1433283292

ǾPİŇİǾŇ ČǾMMĚŇȚǺŘỲ

Ǻffįřmǻťįvě Ǻčťįǿň Ŀǻňđș įň ťħě ǺįřŤřǻffįč Čǿňťřǿŀ ŤǿẅěřȚħě Ǿbǻmǻ ǻđmįňįșțřǻțįǿň fǿřčěș țħě Fěđěřǻŀ Ǻvįǻțįǿň Ǻđmįňįșțřǻțįǿň țǿ mǿvě ǻẅǻỳ fřǿmměřįț-bǻșěđ ħįřįňģ čřįțěřįǻ.

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An air traffic controller in the tower at Newark Liberty International Airport in Newark. PHOTO: JULIO CORTEZ/ASSOCIATEDPRESS

Jųňě 2, 2015 6:14 p.m. ĚȚ

Bỳ JǺȘǾŇ Ŀ. ŘİĿĚỲ


čǿňțřǿŀ țǿẅěřș. Țħě čħǻňģěș čǿmě đěșpįțě țħě fǻčț țħǻț țħě FǺǺ’ș ǿẅň įňțěřňǻŀ řěpǿřțșđěșčřįbě țħě ěvįđěňčě fǿř čħǻňģįňģ țħě ħįřįňģ přǿčěșș ǻș “ẅěǻķ.”

Ųňțįŀ 2013, țħě FǺǺ ģǻvě ħįřįňģ přěfěřěňčě țǿ čǿňțřǿŀŀěř ǻppŀįčǻňțș ẅħǿ ěǻřňěđ ǻ đěģřěěfřǿm ǿňě ǿf įțș Čǿŀŀěģįǻțě Țřǻįňįňģ İňįțįǻțįvě șčħǿǿŀș ǻňđ șčǿřěđ ħįģħ ěňǿųģħ ǿň ǻňěįģħț-ħǿųř șčřěěňįňģ țěșț čǻŀŀěđ țħě Ǻįř Țřǻffįč Șěŀěčțįǿň ǻňđ Țřǻįňįňģ ěxǻm, ǿř ǺȚ-ȘǺȚ,ẅħįčħ měǻșųřěș čǿģňįțįvě șķįŀŀș. Țħě Ǿbǻmǻ ǻđmįňįșțřǻțįǿň, ħǿẅěvěř, đěțěřmįňěđ țħǻțțħě přǿčěșș ěxčŀųđěđ țǿǿ mǻňỳ fřǿm mįňǿřįțỳ ģřǿųpș. İň Mǻỳ 2013, țħě FǺǺ’ș čįvįŀ řįģħțșǻđmįňįșțřǻțǿř įșșųěđ “bǻřřįěř ǻňǻŀỳșěș” ǿf țħě ǻģěňčỳ’ș ěmpŀǿỳměňț přǿčěđųřěș, ẅħįčħřěčǿmměňđěđ “řěvįșįňģ ħǿẅ țħě ǺȚ-ȘǺȚ įș ųșěđ įň ěșțǻbŀįșħįňģ běșț-qųǻŀįfįěđ ŀįșțș.”

Bỳ țħě șțǻřț ǿf ŀǻșț ỳěǻř, țħě FǺǺ ẅǻș ųșįňģ ǻ bįǿģřǻpħįčǻŀ qųěșțįǿňňǻįřě (BQ) țǿ įňįțįǻŀŀỳvěț pǿțěňțįǻŀ ħįřěș. Țħě qųěșțįǿňș—“Ħǿẅ mǻňỳ șpǿřțș đįđ ỳǿų pŀǻỳ įň ħįģħ șčħǿǿŀ?”,“Ẅħǻț ħǻș běěň țħě mǻjǿř čǻųșě ǿf ỳǿųř fǻįŀųřěș?”—șěěm đěșįģňěđ țǿ ěŀįčįț șțǿřįěș ǿfpěřșǿňǻŀ đįșǻđvǻňțǻģě ǿř fǻmįŀỳ ħǻřđșħįp řǻțħěř țħǻň đěțěřmįňě șųččěșș ǿň țħě jǿb.

“Țħě FǺǺ șǻỳș įț čřěǻțěđ țħě BQ țǿ přǿmǿțě đįvěřșįțỳ ǻmǿňģ įțș ẅǿřķfǿřčě,” řěpǿřțěđǺđǻm Șħǻpįřǿ ǿf Fǿx Bųșįňěșș. “Ǻŀŀ ǻįř țřǻffįč čǿňțřǿŀ ǻppŀįčǻňțș ǻřě řěqųįřěđ țǿ țǻķě įț.Țħǿșě ẅħǿ pǻșș ǻřě đěěměđ ěŀįģįbŀě ǻňđ țħǿșě ẅħǿ fǻįŀ ǻřě řųŀěđ įňěŀįģįbŀě.”

Țħě FǺǺ ẅǿųŀđ ňǿț țěŀŀ Fǿx Bųșįňěșș ẅħǻț țħě bįǿģřǻpħįčǻŀ țěșț įș țřỳįňģ țǿ měǻșųřě ǻňđđįđ ňǿț řěțųřň mỳ pħǿňě čǻŀŀș. Bųț ǻň FǺǺ řěpǿřț řěŀěǻșěđ įň Ǿčțǿběř, “Ųșįňģ Bįǿđǻțǻ țǿȘěŀěčț Ǻįř Țřǻffįč Čǿňțřǿŀŀěřș,” čǿňčŀųđěđ țħǻț țħě ǺȚ-ȘǺȚ ěxǻm, ňǿț țħě bįǿģřǻpħįčǻŀqųěșțįǿňňǻįřě, įș ǻ mųčħ běțțěř přěđįčțǿř ǿf pěřfǿřmǻňčě. “Țħě bįǿđǻțǻ įțěmș ǻșșěșșěđđįđ ŀįțțŀě țǿ įmpřǿvě ǿųř ǻbįŀįțỳ țǿ șěŀěčț ǻppŀįčǻňțș mǿșț ŀįķěŀỳ” țǿ čǿmpŀěțě țřǻįňįňģșųččěșșfųŀŀỳ, șǻįđ țħě șțųđỳ. “İf bįǿđǻțǻ ǻřě țǿ bě ųșěđ țǿ șěŀěčț čǿňțřǿŀŀěřș, ǻđđįțįǿňǻŀřěșěǻřčħ įș řěqųįřěđ țǿ įđěňțįfỳ țħǿșě bįǿđǻțǻ įțěmș țħǻț ẅįŀŀ ǻđđ țǿ țħě přěđįčțįǿň ǿfčǿňțřǿŀŀěř țřǻįňįňģ pěřfǿřmǻňčě ǿvěř ǻňđ ǻbǿvě țħě ěffěčț ǿf ǺȚ-ȘǺȚ șčǿřě.”

Ģįvěň țħǻț țřǻįňįňģ ǻň ǻįř-țřǻffįč čǿňțřǿŀŀěř čǻň čǿșț mǿřě țħǻň $400,000 ǿň ǻvěřǻģě,șěŀěčțįňģ čǻňđįđǻțěș bǻșěđ ǿň ẅħǿ įș ŀįķěŀỳ țǿ čǿmpŀěțě țħě přǿčěșș mǻķěș ěčǿňǿmįčșěňșě. Ħǻňș Bǻđěř, ǻ ŀěģǻŀ șčħǿŀǻř ǻț țħě Čǿmpěțįțįvě Ěňțěřpřįșě İňșțįțųțě, ẅřįțěș țħǻțțħě FǺǺ’ș fǿčųș ǿň đįvěřșįțỳ įș ňǿț ǿňŀỳ įňěffįčįěňț bųț mǻỳ bě ǻ vįǿŀǻțįǿň ǿf țħě ČįvįŀŘįģħțș Ǻčț. “Țħě FǺǺ’ș jěțțįșǿňįňģ ǿf měřįț-bǻșěđ ħįřįňģ čřįțěřįǻ vįǿŀǻțěđ țħě ȘųpřěměČǿųřț’ș Řįččį đěčįșįǿň, [Řįččį v. ĐěȘțěfǻňǿ, 2009] ẅħįčħ ŀįmįțș ǻģěňčįěș’ ǻbįŀįțỳ țǿ đįșčǻřđħįřįňģ čřįțěřįǻ įň ǿřđěř țǿ įňčřěǻșě mįňǿřįțỳ řěpřěșěňțǻțįǿň, ěșpěčįǻŀŀỳ ẅħěň țħěřě įș ňǿșțřǿňģ ěvįđěňčě țħǻț țħě čřįțěřįǻ ǻřě ňǿț jǿb-řěŀǻțěđ,” șǻįđ Mř. Bǻđěř.

Ǻfțěř țħě FǺǺ čħǻňģěđ įțș șčřěěňįňģ přǿčěșș įň 2014, țħǿųșǻňđș ǿf ǻppŀįčǻňțș ẅħǿ ẅěřěǻŀřěǻđỳ įň țħě pįpěŀįňě—pěǿpŀě ẅħǿ ħǻđ ǿbțǻįňěđ ǻň FǺǺ-ǻččřěđįțěđ đěģřěě, țǻķěň țħě


ǺȚ-ȘǺȚ ěxǻm ǻňđ ħǻđ běěň đěșįģňǻțěđ “ẅěŀŀ-qųǻŀįfįěđ” țǿ běčǿmě ǻįř-țřǻffįč čǿňțřǿŀŀěřș—ẅěřě țǿŀđ bỳ țħě ģǿvěřňměňț țħǻț țħěỳ ẅǿųŀđ ħǻvě țǿ șțǻřț țħě přǿčěșș ǻģǻįň. “Bųț țħįșțįmě, ẅħěň țħěỳ ǻppŀįěđ fǿř ǻ jǿb, țħěįř čǿŀŀěģě đěģřěěș ǻňđ přěvįǿųș mįŀįțǻřỳ ěxpěřįěňčěẅǿųŀđ měǻň ňǿțħįňģ,” řěpǿřțěđ Fǿx Bųșįňěșș. “Țħěỳ ẅǿųŀđ ňǿẅ čǿmpěțě ẅįțħ țħǿųșǻňđșǿf pěǿpŀě țħě ǻģěňčỳ čǻŀŀș ‘ǿff țħě șțřěěț ħįřěș’; ǻňỳǿňě ẅħǿ ẅǻňțș țǿ, čǻň ẅǻŀķ įň ǿff țħěșțřěěț ẅįțħǿųț ǻňỳ přěvįǿųș țřǻįňįňģ ǻňđ ǻppŀỳ fǿř ǻň ǻįř țřǻffįč čǿňțřǿŀ jǿb.”

İň ǿțħěř ẅǿřđș, țħě čųřřěňț pǿŀįčỳ įș țǿ đěŀįběřǻțěŀỳ fǻvǿř ŀěșș-qųǻŀįfįěđ ǻppŀįčǻňțș ǿvěřmǿřě qųǻŀįfįěđ ǻppŀįčǻňțș įň țħě ňǻmě ǿf ǿbțǻįňįňģ țħě “řįģħț” řǻčįǻŀ ǻňđ ģěňđěř mįxǻmǿňģ ǻįř-țřǻffįč čǿňțřǿŀŀěřș. Ǻđvǿčǻțěș ǿf “đįvěřșįțỳ” įňșįșț țħǻț đįșčǿųňțįňģ ǿbjěčțįvěměǻșųřěș ǿf ǻbįŀįțỳ ǻňđ čǿmpěțěňčě įș ħǻřmŀěșș, bųț ħįșțǿřỳ șħǿẅș țħǻț įț čǻň bě đěǻđŀỳ.

İň 1973 Pǻțřįčķ Čħǻvįș ẅǻș ǿňě ǿf fįvě bŀǻčķ șțųđěňțș ǻđmįțțěđ țǿ ǻ měđįčǻŀ șčħǿǿŀ įňČǻŀįfǿřňįǻ țħřǿųģħ ǻň ǻffįřmǻțįvě-ǻčțįǿň přǿģřǻm đěșįģňěđ țǿ įňčřěǻșě mįňǿřįțỳěňřǿŀŀměňț. Ǻŀŀǻň Bǻķķě, ǻ ẅħįțě ǻppŀįčǻňț ẅħǿ ẅǻș řějěčțěđ đěșpįțě ħǻvįňģ mųčħħįģħěř țěșț șčǿřěș țħǻň țħě bŀǻčķ ǻppŀįčǻňțș, șųěđ. İň 1978 țħě Șųpřěmě Čǿųřț șțřųčķđǿẅň țħě přǿģřǻm, bųț Čħǻvįș ẅǿųŀđ ģǿ ǿň țǿ ěǻřň ħįș měđįčǻŀ đěģřěě ǻňđ běčǿmě ǻpǿșțěř čħįŀđ fǿř ǻđvǿčǻțěș ǿf řǻčįǻŀ přěfěřěňčěș. İň 1995 ħě mǻđě țħě čǿvěř ǿf țħě ŇěẅỲǿřķ Țįměș mǻģǻżįňě. Șěň. Țěđ Ķěňňěđỳ čǻŀŀěđ ħįm “țħě pěřfěčț ěxǻmpŀě” ǿf ħǿẅǻffįřmǻțįvě ǻčțįǿň ẅǿřķěđ. İň 1998 țħě Čǻŀįfǿřňįǻ měđįčǻŀ bǿǻřđ řěvǿķěđ Čħǻvįș’șměđįčǻŀ ŀįčěňșě, ňǿțįňģ ħįș “įňǻbįŀįțỳ țǿ pěřfǿřm șǿmě ǿf țħě mǿșț bǻșįč đųțįěș řěqųįřěđǿf ǻ pħỳșįčįǻň” ǻfțěř șěvěřǻŀ pǻțįěňțș įň ħįș čǻřě đįěđ ǿř ẅěřě șěvěřěŀỳ įňjųřěđ.

Ǻđmįțțįňģ pǿǿřŀỳ qųǻŀįfįěđ șțųđěňțș țǿ měđįčǻŀ șčħǿǿŀ įňčřěǻșěș țħě ňųmběř ǿfįňčǿmpěțěňț đǿčțǿřș. Ǻ șěŀěčțįǿň přǿčěșș fǿř ǻįř-țřǻffįč čǿňțřǿŀŀěřș țħǻț fǻvǿřș řǻčě ǻňđģěňđěř ǿvěř ǻbįŀįțỳ įș ňǿ ŀěșș đǻňģěřǿųș.

Mř. Řįŀěỳ įș ǻ Mǻňħǻțțǻň İňșțįțųțě șěňįǿř fěŀŀǿẅ ǻňđ Jǿųřňǻŀ čǿňțřįbųțǿř.

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Recent changes in the methodology used by the FAA to hire air traf�ccontrollers may have resulted in some highly quali�ed candidates �ndingthemselves without a job. A report from CBS News claims that some ofthe top ranked students from highly respected ATC programs have beenrejected as a result of new pre-employment testing.

The FAA changed the way it hires air traf�c controllers at the beginningof the year, stepping away from the traditional interview process andexperience questionnaire, which was done as a part of the Air Traf�cStandardized Aptitude Test (AT-SAT), to new standardized testingthrough what the agency refers to as a biographical assessment, alsoreferred to as the bio-data assessment. Only those candidates who passthe biographical assessment will be invited to take the AT-SAT.

According to the FAA, the biographical assessment serves as an initialquali�er and measures general and ATC-speci�c work experience,education and training, work habits, academic and other achievements,speci�c life experiences and other factors. The new process wasimplemented to "increase the speed, ef�ciency and objectivity of thedecision making process."

Yet some of the top graduates of the Community College of BeaverCounty Air Traf�c Controller Program, a highly ranked ATC program inBeaver Falls, Pennsylvania, have been rejected based on the bio-dataassessment results, the CBS article says. Graduates of the programquestion the validity of some of the questions in the bio-dataassessment.

Is the FAA Rejecting the BestControllers?

New hiring process comes into question.

By PIA BERGQVIST Posted DECEMBER 2, 2014


The FAA is currently evaluating the new hiring process and isconsidering public feedback while making possible changes before thenext round of hiring begins. The agency plans to hire 6,600 controllers inthe next �ve years, according to an announcement by FAA AdministratorMichael Huerta earlier this year.

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A

News

2 Illinois lawmakers seek to dump new FAAcontroller hiring rules

By Jon Hilkevitch • Contact ReporterGetting Around

SEPTEMBER 19, 2014, 11:56 AM

new federal policy aimed at making it easier for members of the general public with no aviationbackground to embark on careers in air traffic control would be reversed under legislation

proposed in Congress on Friday.

The Safe Towers Act, introduced in the House by U.S. Rep. Randy Hultgren, an Illinois Republican, andco-sponsored by U.S. Rep. Dan Lipinski, D.-Ill., seeks to restore the Federal Aviation Administration'straditional recruitment process for hiring air traffic controllers. Those practices, in place for almost 25years, favored graduates of FAA-accredited college aviation programs and military veterans with aviationexperience, ahead of the general public.

Over the past winter, the FAA abruptly switched the recruitment focus to prioritize off-the-streetcandidates, as part of a strategy to replace more than 10,000 air traffic controllers who will retire overthe next decade, the Tribune reported in May. The FAA controller workforce totals about 14,100, andwhite males make up the majority of the staffing at airport towers and radar facilities.

FAA officials have dismissed suggestions from critics that the new rules lack transparency and aredesigned primarily to increase diversity within the controller ranks, while risking an erosion of safety.FAA officials said the new process is more streamlined and will reduce testing costs. But the changefollowed an internal FAA analysis that showed the long-standing recruitment and testing protocols werea "barrier'' for some minorities, particularly African-Americans.

Individuals with specialized degrees from aviation schools and military veterans are still able to applyunder the new rules. But before taking the traditional skill test examining an individual's aptitude forworking in air traffic control, all applicants must now first pass a controversial biographicalquestionnaire, an online pass/fail test in which the FAA has refused to release the scoring metrics or eachapplicant's actual score.

Some of the 62 questions on the multiple-choice test, which the Tribune reviewed, appear geared towardevaluating the test-taker's personality and self-image. It included questions about how peers woulddescribe the individual and the age at which the person started to earn money.


Hultgren, whose congressional district has the most air traffic controllers of any district in the state, saidthere are strong indications that the FAA changes have "threatened the safety of passengers'' and caused"unjust economic injury to qualified candidates'' who have invested tens of thousands of dollars incollege aviation courses.

"The Safe Towers Act is targeted at making sure we have the best and brightest in our control towers,''Hultgren said.

He said the legislation was filed in part because "the FAA has been non-responsive to my inquiries abouthow their new hiring practices make our skies safer. We still have more questions than answers.''

The proposed legislation would re-implement the preferred status for college aviation graduates whohave received recommendations from their schools and for military veterans, while eliminating the use ofa biographical assessment that "unduly disqualifies applicants.''

In addition, it calls on the FAA to soon reconsider applicants who have failed the biographicalquestionnaire or "aged out'' by reaching age 31, which disqualifies candidates from being hired ascontrollers. The mandatory retirement age for controllers is 56.

The Safe Towers Act also would create an advisory committee to provide recommendations to the FAAadministrator in connection with air traffic control training programs. The committee would include airtraffic control organizations, college controller schools and FAA appointments.

Lipinski is so far the only co-sponsor of the bill.

"Lewis University in Romeoville has one of the premier (air traffic control) programs in the nation,"Lipinski said. "For years its graduates, along with our military controllers, have gone on to proudly workfor the FAA. Now, with these hastily implemented hiring procedures, the FAA is turning its back on thestudents and brave veterans that should be the backbone of our air traffic control system.''

In the first round of hiring this year under the new policy, about 22,500 people without an aviationbackground applied, the FAA said. Of those, 837 were offered jobs. The remainder of the roughly 1,600new controller slots went to more traditional applicants, including military veterans with aviationexperience and accredited aviation school graduates, the FAA said.

FAA officials said the new process has helped the agency "select from a larger pool of qualified applicantsthan under past vacancy announcements" and reduced testing and training costs.

Twitter @jhilkevitch

Copyright © 2016, Chicago Tribune


This article is related to: Air Transportation Industry, Laws and Legislation, Federal Aviation Administration,Randy Hultgren, Daniel Lipinski, Local, News


EXHIBIT 12


Jorge Rojas <[email protected]>

Update FAA to CTI schools

NBCFAE WP <[email protected]> Tue, Dec 31, 2013 at 9:43 AMTo: NBCFAE WP <[email protected]>Cc: Tim Crea <[email protected]>, Y Neal <[email protected]>, Roosevelt Lenard<[email protected]>, natasha chappelle <[email protected]>, Asia L Hunter <[email protected]>,Andre Gaines <[email protected]>, Lew <[email protected]>, "missday215 ." <[email protected]>,Lyndon Morrison <[email protected]>, Monica Swinson <[email protected]>, Shelton Snow<[email protected]>, Paquita Bradley <[email protected]>, Grace Fernandez<[email protected]>Bcc: [email protected]

This is good for public hires....

The announcement below was made by the FAA to CTI (Collegiate Training Initiative) schools:

"The Federal Aviation Administration (FAA) has enjoyed a long‑standing relationship with yourorganization and values our partnership in the training of potential Air Traffic Controllers (ATC).Recently, the FAA completed a barrier analysis of the ATC occupation pursuant to the EqualEmployment Opportunity Commission’s (EEOC) Management Directive 715. As a result of the analysis,recommendations were identified that we are implementing to improve and streamline the selection ofATC candidates. These improvements will have a direct and present impact on all hiring sources,including CTI.

An overview of the immediate changes being made to the ATC hiring process is presented below.

Revisions to ATC Hiring Process

· A nationwide competitive FG‑01 vacancy announcement open to all U.S. Citizens will be issued inFebruary 2014. Any individual desiring consideration for employment (including CTI graduates) MUSTapply. Existing inventories of past applicants will not be used.

· All applicants will be evaluated against the same set of qualification standards. Specifically, applicantsmust have at least 3 years of progressively responsible work experience, a 4 year degree, or acombination of the two.

· The existing testing process has been updated. The revised testing process is comprised of abiographical questionnaire (completed as part of the application process) and the cognitive portion ofthe AT‑SAT. The cognitive portion of the AT‑SAT will be administered only to those who meet thequalification standards and pass the biographical questionnaire. Applicants for the February 2014announcement will be required to take and pass the new assessments in order to be referred on for aselection decision.

· Since a single vacancy announcement will be used for all applicant sources, a single nationwidereferral list will be generated containing all candidates who meet the qualification standards and passthe assessments. Location preference will no longer be used as a determining factor for referral orselection.


Centralized selection panels will no longer be convened to make selections from the referral list.Selections will now be fully automated, grouping candidates by assessment scores and veteran’spreference.

These improvements to the ATC hiring process will significantly strengthen the long term sustainabilityof our program and offer our candidates a fair and viable opportunity to demonstrate their capabilitiesand potential for the ATC position.

We recognize that you may have questions concerning these changes. Considering the upcomingholiday season, we are planning a teleconference for Mid‑January when we will more fully addressquestions and concerns you may have.

We want to reiterate that we very much value our partnership with the CTI program and look forward toassisting you in understanding our changes to the ATC selection process. We will be contacting yousoon to schedule the January teleconference."



Smith, Stephen L (FAA)

From: Sent: To: Subject:

Bradley,

Smith, Stephen L (FAA) Thursday, May 28, 2015 10:13 AM Olson, Bradley (FAA) RE: Coordination on Investigation

Tomorrow the follow ing managers will be here and did here the audio. Let me know who you want

Stephen Smith - Air Traffic Manager Bonita Sherrell - Staff Manager Rudy Reid - 2cn Level Supervisor - Operations Manager Ed Kesler - Executive Officer Al Castillo - Traffic Management Officer

Stephen L. Smith Air Traffic Manager FAA Potomac Consolidated TRACON

3699 Macintosh Dr. Warrenton, VA 20187 540.349.7500 (W) 540 .270.8474 (M) 540 .204.5204 (BB)

This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and/or exempt from disclosure under applicable law. If the reader is not the intended recipient, you are hereby notified that any dissemination, d istribution, or copy ing of this communication is prohibited . If you have received this communicat ion in error , notify the sender immed iately and erase the message.

From: Olson, Bradley (FAA) Sent: Thursday, May 28, 2015 6:34 AM To: Smith, Stephen L (FAA) Subject: RE: Coordination on Invest igation

Stephen,

I would like to speak with you and one other person that could identify Snow. If his direct manager is one of the people that could identify him, than he or she would probably be the best person to speak with. If not, someone that is knowledgeable of the issues surrounding this allegation wou ld probably be the best person.

Would you have some availability for an interview tomorrow? If not, let's try to get something set up for early next week. I'm teleworking today, so if it easier to coordinate via phone, I am available via my cell phone: 202.604.5045.

Brad


From: Smith, Stephen L (FAA) Sent: Wednesday, May 27, 2015 4:48 PM To: Olson, Bradley (FAA) Subject: Re: Coordination on Investigation

Bradley,

Sure - I was one; how many do you want to interview . Fox had him on TV with his face and called out to him

From: Olson, Bradley (FAA) Sent : Wednesday, May 27, 2015 03:32 PM To: Smith, Stephen L (FAA) Subject: Coordination on Investigat ion

Stephen,

I am investigating possible compromise and/or cheating on the Biographical Questionna ire for Air Traffic Control applicants. I understand from Ed Donaldson that you may be able to assist me. We were briefed by Terry Biggio that two (or perhaps more) of the managers at the Potomac TRACON definitively identified FAA employee Shelton Snow from the Fox News story regarding this issue.

I need to identify and interview those indiv iduals as a part of the invest igation . Is that something you can assist with?

Thanks,

Brad

Bradley K. Olson Special Agent Investigation Programs and Operations Division Office of Security and Hazardous Materials Safety Federal Aviat ion Administration Washington, DC Office 202-267-9415 Cell 202-604-5045

2

EXHIBIT 13


Fwd: Notification of ATSAT Test Results

Sent:Monday, March 28, 2016 2:59 PMTo: Jorge Rojas

---------- Forwarded message ---------- From: <[email protected]> Date: Wednesday, May 1, 2013 Sub T-SAT Test Results To:

this email is to notify you of the results of the AT-SAT (CTI) Test you have taken.

AT-SAT test score information entered:

05/01/2013: An AT-SAT score of 70 or above is necessary for passing. Your score was 93.6. Eligible applicants are categorized as "well qualified" or "qualified" based on AT-SAT scores.

Note: Please do not reply to this email. This email was sent from an automated system. Replies will notbe read. For questions contact Aviation Careers office at [email protected] or (405)954-4657.


To:

Attachments:

Jorge Rojas

Gmail - Notification of AT~1.pdf (81 KB) [Open as Web Page ]

Reply Reply All Forward

Fwd: Notification of AT-SAT Test Results

Monday, March 28, 2016 4:09 PM

---------- Forwarded message ----------From: <[email protected]>Date: Fri, Apr 12, 2013 at 12:28 PMSub SAT Test ResultsTo:



04/12/2013: An AT-SAT score of 70 or above is necessary for passing. Your score was 100. Eligible applicants are categorized as "well qualified" or "qualified" based on AT-SAT scores.

Note: Please do not reply to this email. This email was sent from an automated system. Replies will notbe read.For questions contact Aviation Careers office at [email protected] or (405)954-4657.


To: Jorge Rojas

Reply Reply All Forward

Fwd: Notification of AT-SAT Test Results

Monday, March 28, 2016 3:09 PM

Sent from my iPhone

Begin forwarded message:

From: <[email protected]>Dat AM CDTTo:Subject: Notification of AT-SAT Test Results



04/22/2013: An AT-SAT score of 70 or above is necessary for passing. Your score was 90.1. Eligible applicants are categorized as "well qualified" or "qualified" based on AT-SAT scores.

Note: Please do not reply to this email. This email was sent from an automated system.Replies will not be read.For questions contact Aviation Careers office at [email protected] (405) 954-4657.


EXHIBIT 14


3/1/2016 EMS365


EMS365

StatusFor More InformationEMS365 is more than just email...Where can I get help?What training is provided?A Few Reminders

Status

Email Migrations are CompleteAll scheduled mailbox migrations, including individual and shared functional/group accounts, have beencompleted. For any remaining operational Lotus Notes email accounts, please contact your national IT HelpDesk (https://my.faa.gov/tools resources/info technology.html) and request it be provisioned in EMS365.

Users of shared group/functional mailboxes should continue to access their shared mailboxes using theirindividual EMS365 user credentials through Outlook Web App (OWA) (https://email.dot.gov/) .

Please contact your national IT Help Desk (https://my.faa.gov/tools resources/info technology.html) for anyproblems, issues, questions, etc., regarding EMS365.

Back to top

For More InformationRead our Shared Mailbox Migrations FAQs(https://my.faa.gov/tools_resources/info_technology/ems/shared_mailbox_faqs.html) .Watch the 30-minute video (https://employees.faa.gov/tv/?mediaId=1023) that includes a demonstrationto access and bookmark your shared group/functional mailboxes using OWA (https://email.dot.gov/) .Search the online EMS365 FAQs (https://employees.faa.gov/tools_resources/info_technology/ems365/#faq) bykeyword for answers to questions on migration, webmail, smartphones or online archives related toindividual user accounts.


3/1/2016 EMS365


Back to top

EMS365 is more than just email......it is an office productivity tool. This cloud-based system features Outlook 2010 for email, calendaring andcontact management as well as Lync 2010 as the instant messaging and eventual online meetingreplacement for SameTime. It also features Proofpoint to automatically archive all email messages you sendor receive for up to 5 years, and you can access it online.

Both Outlook and Lync offer an enhanced feature set and more capabilities over what was previouslyavailable. They also offer improved functionality across many of the Microsoft Office 2010 products you'realready using, like Word, Excel and Powerpoint. Learn more(https://my.faa.gov/tools resources/info technology/ems/Benefits.html)

Back to top

Where can I get help?For problems with EMS365 (e.g., Outlook doesn't work, you keep getting error messages or have accessissues), please contact your Help Desk (https://my.faa.gov/tools resources/info technology.html) .

When you're trying to personalize your email, set up your out of office status, or have questions about how touse any of new EMS365 features, check out the online EMS365 Training archive(https://my.faa.gov/tools resources/info technology/ems/Training.html) .

Back to top

What training is provided?Get started on the path to improved productivity by learning how to use the full suite of office tools byreviewing available How-To tutorials, videos, manuals and self-help courses. EMS365 training resourcescome in a variety of formats to support your individual style of learning. Learn More(https://my.faa.gov/tools resources/info technology/ems/Training.html)

Back to top

A Few RemindersAutomatic replies to users outside of EMS365 are blocked. For instance, out-of-office replies to partnerorganizations outside the FAA domain are not being delivered.Until further notice, users of shared functional/group accounts must use Outlook Web App (OWA)(https://email.dot.gov/) to access the functional/group account through their individual (personal) EMS365email account.Unless a legal hold is placed on an account, the retention period for EMS365 data is five years. Data willbe automatically deleted once the retention period is reached.Users should keep their network & eCenter credentials (userid/password) active. A help desk ticket is


3/1/2016 EMS365


needed if your credentials become deactivated. OWA access depends upon network credentials.Users should keep their profile current and accurate. Team calendars in EMS365 depend upon accurateprofile information.Transend can still be used to convert your local Lotus Notes archives into a format useable by EMS365Outlook. If formatting or other anomalies occur with the conversion, please refer back to Lotus Notes forthe original copy. Transend cannot be used for shared group/functional archives.Lotus Notes Sametime (through eCenter (https://ecenter.faa.gov/appspub/national/ecenter.nsf?Open) ) continuesto be the official solution for online meetings.User actions to incorporate add-ons are discouraged.

Back to top

Page Last Modified: 01/11/16 12:38 EST

OWA Shared Mailbox GuidesHow to Open a Shared Account in OWA (PDF)How to Bookmark a Shared Account in OWA (PDF)How to Create & Use Templates in OWA (PDF)How to Share Contacts or Groups in OWA (PDF)How to Open Proofpoint Archives in OWA (PDF)

Quick Reference GuidesAccessing OWA from Home (PDF)Accessing OWA from FAA Office (PDF)Outlook - Creating a Meeting (PDF)OWA - Creating a Meeting (PDF)QRC - Adding Rooms & Resources (PDF)Outlook Mail (PDF)Outlook Calendar (PDF)OWA - Mail (PDF)OWA Calendar (PDF)Inbox & Calendar Permissions (PDF)Lync - Instant Messaging (PDF)

FAQsFrequently Asked Questions (https://employees.faa.gov/tools_resources/info_technology/ems365/#faq)


3/1/2016 EMS365


This page can be viewed online at: https://my.faa.gov/tools_resources/info_technology/ems.html

Take a tour of EMS365 features (https://employees.faa.gov/tv/?mediaId=880)

User Instruction ManualsOutlook User Manual (PDF)OWA User Manual (PDF)Lync User Manual (PDF)Proofpoint Archives User Manual (PDF)

TrainingOutlook (https://my.faa.gov/tools_resources/info_technology/ems/Training/outlook.html)OWA (https://my.faa.gov/tools_resources/info_technology/ems/Training/owa.html)Lync Instant Messaging (https://employees.faa.gov/tools_resources/info_technology/ems365/instant_messaging/)Transend Conversion Tool (PDF)How-To Video: Migrate Your Email Archive(https://my.faa.gov/content/dam/myfaa/tools_resources/info_technology/ems/ems365emailconversion_instruction_video.wmv)


EXHIBIT 15


Case 2:15-cv-01709-GMS Document 22-1 Filed 03/30/16 Pa e 127 of 149


Date Last Saved 21 August 2014 Page i D.14

Table of Contents 1. Introduction to Proofpoint ................................................................................................... 1

1.1. About this Guide ...................................................................................................................... 1 1.2. Prerequisite Knowledge .......................................................................................................... 1 1.3. Other Sources of Information ................................................................................................. 1 1.4. Contacting Support ................................................................................................................. 1 1.5. What Proofpoint Enterprise Archive Means for You ............................................................. 1 1.6. FAA Retention Policy .............................................................................................................. 1

2. Accessing Proofpoint .......................................................................................................... 2

3. Search for Messages ............................................................................................................ 4 3.1. About the Search Screen ........................................................................................................ 4 3.2. Search Procedure .................................................................................................................... 4 3.3. Finding Messages from Specific Senders or Recipients...................................................... 5 3.4. Finding Messages in Specific Mailboxes ............................................................................... 6 3.5. Finding Messages Sent on Specific Dates ............................................................................ 6 3.6. Finding Messages That Contain Specific Types of Attachments ........................................ 9 3.7. Finding Messages That Contain Specific Words or Phrases ............................................. 10 3.8. Using Boolean Logic for Content Searches ........................................................................ 11

4. Working with Search Results ............................................................................................ 12 4.1. Working with Messages ........................................................................................................ 12 4.1.1. To view a message: ............................................................................................................... 12 4.1.2. Print a Message ...................................................................................................................... 12 4.1.3. Retrieve a Message ................................................................................................................ 12 4.2. Sorting and Navigating Through Results ............................................................................ 13



Date Last Saved 21 August 2014 Page ii D.14

List of Figures Figure 1: Proofpoint Web Login Screen ....................................................................................................... 2 Figure 2: Proofpoint Home Page ................................................................................................................. 3 Figure 3: Proofpoint Search Screen ............................................................................................................. 3 Figure 4: Search Screen .............................................................................................................................. 4 Figure 5: Enter Search Criteria - Search ...................................................................................................... 4 Figure 6: E-Discovery Advanced Search ..................................................................................................... 5 Figure 7: Search for Messages - ME ........................................................................................................... 5 Figure 8: Search for Messages - Specific Sender/Recipient ........................................................................ 6 Figure 9: Search for Messages - by Mailbox ................................................................................................ 6 Figure 10: Search for Messages - Last 7 Days ............................................................................................ 6 Figure 11: Search for Messages - Any Date ................................................................................................ 7 Figure 12: Search for Messages - Between ................................................................................................. 7 Figure 13: Search for Messages - Specify Date .......................................................................................... 7 Figure 14: Search for Messages - On, Before, After a Certain Date ............................................................ 8 Figure 15: Search for Messages - Specify Date .......................................................................................... 8 Figure 16: Search for Messages - by Attachment, Not Required ................................................................. 9 Figure 17: Search for Messages - by Attachment, Specify File Type .......................................................... 9 Figure 18: Search for Messages - by Attachment, Enter Type of File ........................................................ 10 Figure 19: Search for Messages - Content ................................................................................................ 10 Figure 20: Search for Messages - Content Criteria Search Fields ............................................................. 11 Figure 21: Open a Message, Open an Attachment .................................................................................... 12 Figure 22: Print a Message ........................................................................................................................ 12 Figure 23: Retrieve a Message .................................................................................................................. 13 Figure 24: Sorting and Navigating the Results ........................................................................................... 13

List of Tables Table 1: Boolean Logic for Content Searches ........................................................................................... 11



Revision History

Revision Record Change Description of Change Number

D.1 Outlined & Formatted D.2 Content Updated D.3 Posted for Review D.4 Updated Post QA Review D.5 Updated URL

Removed 2.1 Accessing the Archive from Outlook or

D.6 Outlook Web Access Removed associa ted Figures Updated Post QA Review

D.7 Uodated Post FAA Review, Readv for EMS365 Pilot Section 2 updated to reflect DOT and FAA syntax for log-into Proofpoint

D.8 Note added "If using Outlook Web App (OWA), always open Proofpoint in a separate window or tab." Updated Title Added DOT Looo

D.9 Updated Section 4 .2

D.10 Updated Section 3.5 with Note regarding Proofpoint displavino times in CENTRAL TIME

D.11 Updated the FAA looo D.12 Correct FAA Domain callout Section 2 D. 13 Updated for new Web User Interface screens hots D.14 Added E-Discoverv Advanced Search

EMS365 Proofpo int End User Manual

Date Last Saved 21 August 2014 Page iii

Effective Change By Date

2/ 11/2013 Jerrv Kennedv 2/21/2013 Jerrv Kennedv 2/22/2013 Jerrv Kennedv 2/23/2013 Jerrv Kennedv 3/22/2013 Jerrv Kennedv






2/7/2014 Jerrv Kennedv 6/11/2014 JR Grownev 7/28/2014 JR Growney 8/12/2014 JR Grownev


D.14



1. Introduction to Proofpoint

1.1. About this Guide

This guide introduces Proofpoint Enterprise Archive and provides step-by-step instructions for real-time searching for messages in the archive.

1.2. Prerequisite Knowledge

This guide is intended for an end-user who knows how to use Outlook or Outlook Web Access (OWA).

1.3. Other Sources of Information

This guide covers procedural information for Proofpoint Archive searches conducted from Outlook or OWA. For other information, see:

• Online Help: Every screen in the Proofpoint Enterprise Archive user interface includes a help button. Click on this button to display information about the steps required to perform tasks on that screen.

• Legal Discovery and Supervision: Explains how to search the archive using advanced search features available only through the web interface. Also explains how to carry out discovery and supervision activities. Your user permissions may give you limited access to these functions.

1.4. Contacting Support

If you need help resolving an issue, please contact your local help desk.

1.5. What Proofpoint Enterprise Archive Means for You

With Proofpoint Archive in place, your messages are stored in a centralized archive accessible from a web browser, such as Internet Explorer, and Microsoft Outlook or Outlook Web Access (OWA). You can search for and read the full history of your email communications, or retrieve past communications so you can forward them to others.

1.6. FAA Retention Policy

Proofpoint retains all emails sent, all emails received, and calendar invitations sent by all users. These items are retained in Proofpoint for five (5) years, unless there is a legal hold. In that situation, items are retained until released from legal hold.




2. Accessing Proofpoint

Accessing the Archive from a Browser

User names and passwords for Proofpoint Archive (Figure 1) are fully integrated with your network user name and password.

Whenever you change your password on the network, your password used to log in to Proofpoint Archive is also changed.

a. Open a browser (such as Internet Explorer, Foxfire, Safari, or Chrome).

NOTE: If using Outlook Web App (OWA), always open Proofpoint in a separate window or tab.

b. In the address bar type the URL to access the Proofpoint Archive.

NOTE: The URL is: https://email.dot.gov/archive. Save to your Favorites or Bookmarks.

c. Enter the Username into the text field.

1. For DOT personnel, the Username format is: ADDOT\network log-in name

2. For FAA personnel, the Username format is: FAA\network log-in name

d. Enter Password into the text field.

e. Click LOGIN button.

Figure 1: Proofpoint Web Login Screen

cADDOT\network log-in nameFAA\network log-in name

d

e




The Proofpoint Home page opens (Figure 2) if you have not selected a preference.

Figure 2: Proofpoint Home Page

Alternately, Proofpoint Personal Archive web page (Figure 3) may open.

a. Depending on your personal preferences, you will typically be brought straight to the Search page.

b. Select the View Tutorial button on the right hand side of the screen to view a Proofpoint Tutorial.

Figure 3: Proofpoint Search Screen



3. Search for Messages

3.1. About the Search Screen The search screen (Figure 4) has four basic components :

• The Search Criteria Area (a): specify what you want to search for.

• The Results List (b): contains a list of messages that match your search criteria.

• A Preview Area (c): contents of the message selected in the list.

• The Archive Toolbar (d): offers access to functions that affect the selected message.

proof po mt ~

m '""" - TO

El CONTeff'T

Resu It s List (b)

PERSONAL AACHIVE C-OIS(OvtRV ~ ...,.

" , I , , , ·, I ",,. .. I _ I Ii:! I o

El lilm m mm

filH 11un1-1 ATTAO'IICHT ~1 ... -,,,~ ... ~.cd------- ~t!.I m

MAILBOX· I UY..,,.ll.BOX

SENT· l.tNYOATE G:.] lillll"""

Getting St arted 8 '113:ll'ei·HMU

l~orm .. montoloo>.tor

2 (ll( k "Seilt(fl-

Tnc •rcttlW' wll t>e k•1t.h~ form•«htt•no""'r~uClf1,,pW1)'COll'I me ,rc4'COU'IC!dt-

3 Clldl on • rc:w l t to vHw 'l'cxi cen d tw OH: me,,-s,e oodclownl,o..cl •n.Khmcnu !n dil, •u.•• by c11eklrcon,wartnrnu:t.

Figure 4: Search Screen

3.2. Search Procedure

Archive

}

Too lbar (d) Search Criteria Area (a)

Preview Area (c)

a. Enter Search Criteria (see below for details on the diff erent types of search criteria you can enter).

b. Click Search (Figure 5).

The messages that match the criter ia appear in the results list.

t!2!!!,: The Clear button can be used to clear all data from the Search Criteria fields .

FROM: 4(~-----------11 a IMA!LSOX, !My Moilbox

SENT: .-,A.V_Y_OA-TE---,.0-, TO:

CONTElff filoJ'lfljH9l·j AnAC HM.:HT: I Not Requ ired

Figure 5: Ente r Search Crite ria • Search

An alternative search capability is available using the E-Discovery Search tab, commonly used for advanced searches.

a. Select the E-Discovery tab above the archive toolbar

b. Enter Search Criteria then click Search (Figure 6). EMS365 Proofpoint End User Manual

Date Last Saved 21 August 2014 Page4


D.14



Figure 6: E-Discovery Advanced Search

3.3. Finding Messages from Specific Senders or Recipients

To find messages (Figure 7) that you sent or received:

a. Enter ME (in capital letters) in the From or To box and

b. Press ENTER.

Figure 7: Search for Messages - ME

To find messages based on a display name or Internet email address:

c. Enter the name or address in the From or To text box (Figure 8). (John)

Note: Proofpoint automatically suggests options as data is put into the From or To text box

d. Press ENTER or, from the suggestion list, choose Name/address containing desired. (John Griffith)

Note: The “Current” tab on the suggestion list shows all users with a mailbox that exist within Active Directory (whether or not the account is active). Proofpoint also tracks every account in Active Directory from the point that the archive was implemented. Accounts deleted from Active Directory appear on the “Deleted” tab.



From: ,ha I~ c -To: ~ame/address containing: John

~ohn Anderson Content: ~ohn Bryson

~ohn Griffith ,. • I D From - d ~ohn Hodge

Oesa lr ~ohn Lavorato ~ohn Sherriff

I

Current I Deleted

Figure 8: Search for Messages · Specific Sender/Recipie nt

3.4. Finding Messages in Specific Mailboxes Depend ing on your user access , you may be able to search jus t in your own mailbox, or in mailboxes associated with others (individuals or shared mailboxes ).

To find messages in specific mailboxes :

e. From the Mailbox list (Figure 9), choose the appropriate mailbox (or group of mailboxes).

MAILBOX:

SENT:

ATTACHMENT: Not Required e

Figure 9: Search fo r Messages • by Mailbox

3.5. Finding Messages Sent on Specific Dates To find messages sent on specific dates:

Wi';);AIM

fW,!#Jitili

.

T

f . From the Sent list, choose the appropriate date condition and, from the adjacent list, choose the specific date (if required ) (Figure 10). (Last 7 days )

SENT: BETWEEN

ATTACHMENT: AFTER BEFORE ON THfSWEEK THIS MONTH THfSYEAR LAST7 DAYS LAST30DA YS LAST90DA YS LAST 12 MONTHS

ffl AND

Figure 10: Search for Messages . Last 7 Days

v

EMS365 Proofpoint End User Manual FAA EMS365: DTFAWA-12-0-00021

Date Last Saved 21 August 2014 Page6 0 .14


g. To search for messages sent on any date, choose An y date (Figure 11 ).

SENT: .. BETWEEN

ATTACHMENT: AFTER BEFORE ON THIS WEEK THIS MONTH THIS YEAR LAST7DAYS LAST30DAYS LAST900AYS LAST 12 MONTHS

Iii AND

Figure 11: Search for Messages • Any Date

h. If you know the approximate date, choose Betw een (Figure 12).

MAILBOX: My Mai lbo x

ANY DATE SENT: : 1111 AND

AF TER

ATTACHMENT: BEFOR E ON THIS WE EK THIS MONTH h THIS YEAR LA ST7DAYS LAST30DAY S LA ST90DAY S LA ST 12 MONTH S

Figure 12: Searc h for Messages . Between

i. Spec ify the dates using the calendar (Figure 13).


SENT: I BETWEEN lfflll AND

ATI ACHMENT: Not Req uired

6 7

n 14

1 2

8 9

15 16

22 23

29 30

v

v

1111 v

3 4

10 11

17 18

24

31

5

12

19

26

CLEAR CLOSE

Figure 13: Searc h for Messages . Specify Date

To specify the date that messages must have been sent On , Before or Afte r (Figure 14).

EMS365 Proofpoint End User Manual Date Last Saved 21 August 2014 Page7


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j . Choose On, Before or After . (After)

MAILBOX:

SENT:

ATI ACHMENT:

AN Y DATE BETWEEN

BEFORE ON THfSWEEK THIS MONTH THfS YEAR LAST7 DAYS LAST30DA YS LAST90DA YS LAST 12 MONTHS

Figure 14: Sea rch for Messages. On, Before , Afte r a Certain Date

k. Specify the date (Figure 15) using the calendar.

NOTE:


SENT: AFTER 7/1/ 2014

ATI ACHMENT: I Not Required

2 3 4 5

k 6 7 8 9 10 11 12

13 14 15 16 17 18 19

20 2.1 22 23 24 25 26

27 28 29 30 31

CLEAR CLOS E

Figure 15: Sear ch for Messages. Spe cify Date

The Proofpoint Archiv ing App liance is collocated with the Managed Servers sitting in the Central Time Zone. Unlike a client-side applicat ion that references the end-user's computer t ime zone sett ings, the Proofpoint Archiving Appliance relies solely on the server to which it is installed.

As such, all date /time stamps on action and activities are referenced in the Central Time Zone . To avoid confus ion, Proofpoint has added the display of the time zone wherever a t ime stamp is presented, in this case "CT" for Central T ime.

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Date Last Saved 2 1 August 2014 Pages


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3.6. Finding Messages That Contain Specific Types of Attachments

Choose the attachment type from the Attachment list to find messages with specific attachment types.

l. Choose Not Required (Figure 16) to search for messages regardless of whether or not they have an attachment. Not Required is the default.

Figure 16: Search for Messages - by Attachment, Not Required

m. To search for messages with a specific type of attachment, choose the appropriate option. (is an Excel spreadsheet) (Figure 17)

Figure 17: Search for Messages - by Attachment, Specify File Type




To search for messages with another type of attachment (Figure 18), n. Choose is of another type…

o. Enter the file extension that will identify the attachment when prompted to do so.

p. Click Close.

Figure 18: Search for Messages - by Attachment, Enter Type of File

3.7. Finding Messages That Contain Specific Words or Phrases

For Content Criteria, enter words or phrases to search for. The search includes:

• Subject • Senders (From) • Recipients (To, CC, BCC) • Body • Header (SMTP header) • Names of attachments • Content of attachments

When you search for individual words, each word must appear somewhere in the message, but the words do not have to appear in the same area of the message.

q. Enter the words or phrases in the Content box (Figure 19) to find messages containing words or phrases.

r. Click Show Helper.

Figure 19: Search for Messages - Content

The helper can show you how to construct more complex search criteria. The criteria you enter in the helper is automatically shown, using the correct syntax, in the Content box. You can edit what the helper enters in the box.



s. Enter Content Criteria (Figure 20) in the desired search fields.

t. Click Close.

Content: "archive" (FM OR retention OR policy)

Cl From !vou have edited the search text. Changes made in the helper will replace your changes.

Descrir flnd messages t hat have:

all these w ords:

archive

an of these word s:

FM

But don't include messages that have:

any of these unw anted w ords:

Figu re 20: Searc h for Messages . Content Crit eri a Search Field s

3.8. Using Boolean Logic for Content Searches

Hide Helper

Note: The operators "AND" and "OR" must be entered with capita l letters. The lower case versions are used to search for content containing the words "and" and "or" themselves.

In addition to entering words and phrases, you can also use basic Boolean logic (Table 1) to refine searches . The following elements are supported:

Term Meaning AND Indicates that the words/phrases are both requ ired. As spaces between words and/or

phrases are treated as an "AND", use of this keyword is generally not required . Usage: "Bob Smith" AND factory

OR Indicates that one or the other of the words/phrases is requ ired, but they don't both have to be in the message for it to match. Usaae: "Bob Smith" OR factorv

- hyphen Indicates that the fo llowing word or phrase must not be in the message. Usage: "Bob Smith" - factory

() brackets Indicates a group ing of logical elements for evaluation. Generally brackets are only required when you combine "AND" and "OR" logic in a single search . Usage: ("Bob Smith" OR "Mary Jones") AND factory

- t ilde Inserting a t ilde fo llowed by a number lets you do a prox imity search to find matches with in the proxim ity of the orig inal results . In the examp le, all documents that conta in searchte rmA with in 3 words of searchtermB will be found . Usage: "searchtermA searchtermB"-3

Table 1: Boo lean Logi c fo r Co ntent Searches

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EXHIBIT 16


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JORGE ALEJANDRO ROJAS AFFIDAVIT


I, Jorge Alejandro Rojas, swear as follows:

1. I am the Plaintiff in this matter and have information concerning this case as a result of

my involvement with Defendants, Defense Counsel and my counsel.

2. If called to testify as a witness in this case, I will be able to testify as to the truth of

each and every statement enumerated herein.

3. This affidavit is written in support of Plaintiff’s Statement of Facts in Support of

Plaintiff’s Motion for Discovery, Opposition to Motion for Summary Judgment and Cross-

Motion for Summary Judgment.

4. I did not receive responsive records for the Freedom of Information Act (FOIA) request

which provided raw data for the 2015-009349 request until after Defendant moved for

Summary Judgment.


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5. I am satisfied with the FOIA response provided concerning the raw data for 2015-

009349. However, I will be filing an application for the recovery of fees and costs at a later

date as I believe I have substantially prevailed.

6. I did not become aware of corrupt records until the Agency moved for summary

judgment, despite the fact the Agency knew on or about May of 2015.

7. Based on a review of responsive records for FOIA 2015-009300, responsive records

for portions of or the entirety of December 2013, January 2014, and March 2014 are missing.

Evidence of this is the failure to provide Daily Broadcast emails for portions of this period.

This is indicative that not all responsive records have been provided.

8. For request 2015-009228, a FOIA appeal was submitted subsequent to the Agency’s

b(6) withholding for personal e-mail addresses of Agency employees. The Agency stated that

individuals did not have a privacy interest in their individual identities and compiled a list of

Agency employees who had a personal email shown on the emails.

9. Exhibit 1 of the Motion for Summary Judgment (“MSJ”) is a true and correct copy of

the briefing the FAA provided to the CTI institutions and other stakeholders in the ATC hiring

process, on or about January 16, 2015.

10. Exhibit 2 of the MSJ is a true and correct copy of the notification the FAA sent to

individuals who had applied for a previous vacancy announcement under the previous hiring

system for Air Traffic Control Specialists. The email was widely distributed amongst the

community of students impacted by the changes and was sent on January 27, 2014.

11. Exhibit 3 of the MSJ is a true and correct copy of the FAA’s website prior to issuing

the “off the street”, open source vacancy announcement. The webpage screenshot was widely

distributed amongst the community of students impacted by the changes.

12. Exhibit 4 of the MSJ is a true and correct copy of the National Black Coalition of

Federal Aviation Employees (NBCFAE) google group, “NBCFAEinfoWESTPAC”, and

provides information concerning the hiring announcement. The post was written from the


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account of James Swanson, an NBCFAE member. The Exhibit is widely available online and

was initially posted on January 24, 2014.

13. Exhibit 5 of the MSJ is a true and correct copy of an article published online by Anna

Burleson, dated March 5, 2014, concerning the changes to the ATCS hiring program.

14. Exhibit 6 of the MSJ is a true and correct copy of the recommendations list created by

Donnie R. Simmons on May 7, 2014. This Exhibit was widely distributed amongst the

community of students impacted by the FAA’s changes to the hiring program.

15. Exhibit 7 of the MSJ is a true and correct copy of an email between Michael Pearson,

my counsel, and Paul Bullis, Defendant’s counsel. The email is dated February 10, 2016 and

concerns the release of raw data responsive to one of my FOIA requests.

16. Exhibit 8 of the MSJ is a true and correct copy of an article published online by Adam

Shapiro of Fox Business Network, published May 20, 2015. The article concerns the changes

to the FAA hiring program.

17. Exhibit 9 of the MSJ is a true and correct copy of a letter from the FAA to me

concerning the correction of anomalies in regards to my FOIA request. This was received on

or about February 22, 2016.

18. Exhibit 10 of the MSJ is a true and correct copy of an article published online by Adam

Shapiro of Fox Business Network, published March 7, 2016. The article concerns the

contradictions concerning the missing emails which are the subject of this action.

19. Exhibit 11 of the MSJ is a true and correct copy of correspondence from Members of

Congress, dated May 29, 2015, June 11, 2014 and February 4, 2014. Exhibit 11 also includes

a copy of a letter from the U.S. Commissioner on Civil Rights, dated June 4, 2015 and a June

17, 2015 memorandum from the Department of Transportation (DOT) Inspector General (IG).

Lastly, included are: (1) A June 2, 2015 Wall Street Journal article authored by Jason L. Riley,

(2) A December 2, 2014 FLYING magazine article authored by Pia Bergqvist and (3) A

September 29, 2014 Chicago Tribune article authored by Jon Hilkevitch. All articles and

letters are/were available online.


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20. Exhibit 12 of the MSJ is a true and correct copy of an email received from NBCFAE

by me on December 31, 2013. Pages 3 and 4 of Exhibit 12 show emails concerning Shelton

Snow received as a result of another FOIA request, which validate that the voicemail message

played by Fox Business Network was in fact Mr. Snow’s voice.

21. Exhibit 13 of the MSJ is a true and correct copy of AT-SAT score results for three

students who were impacted by the changes to the FAA hiring program. These students

received their scores from the FAA.

22. Exhibit 14 of the MSJ is a true and correct copy of information available from the FAA

website concerning Outlook and Proofpoint.

23. Exhibit 15 of the MSJ is a true and correct copy of the Proofpoint manual available

from the FAA website and is available online.

24. Exhibit A of the Controverted Statement of Facts (CSOF) is a true and correct copy of

a May 20, 2015 Fox Business Network article authored by Adam Shapiro. The article concerns

the contradictions concerning the missing emails subject to this action.

25. Exhibit B of the CSOF is a true and correct copy of a select page from the FAA’s initial

email production for FOIA 2015-009300, received on or about February 9, 2016. This select

page demonstrates the fact that characters of the records provided were corrupt and/or altered.

26. Exhibit C of the CSOF is a true and correct copy of information available from the

FAA website concerning Outlook and Proofpoint.

27. Exhibit D of the CSOF is a true and correct copy of the Proofpoint manual available

from the FAA website and available online.

28. Exhibit E of the CSOF is a true and correct copy of the FAA directory concerning

Michael Coulter. This directory is available on the FAA website.

29. Exhibit F of the CSOF is a true and correct copy of the FAA Human Resources manual,

available on the FAA website.

/ / /


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