Keyno Henry v. Department of the Air Force, AT-0752-16-0632-I-1

Appellant Keyno I. Henry was an Aircraft Overhaul Systems Mechanic at Robins AFB in a testing designated position (TDP) subject to random drug testing.
A random drug test returned positive for marijuana; the agency proposed and effected his removal effective July 1, 2016. Henry stipulated to the positive test.
Henry argued below (and on review) that the agency: (a) lacked nexus between the positive test and efficiency/safety; (b) imposed an unreasonable penalty; (c) violated due process and its rehabilitation MOU; and (d) (for the first time on review) that his removal was a "cat’s paw" reprisal tied to his wife’s OSI role.
The administrative judge found nexus (safety-sensitive TDP), that the deciding official considered Douglas factors and mitigation, and that removal was reasonable; Henry failed to prove disparate treatment, due-process violation, or harmful procedural error from the MOU.
The Board denied Henry’s petition for review, declined to consider new evidence/arguments raised first on review (including the cat’s paw claim and a secondary-certification document), and affirmed removal.

Issue	Henry's Argument	Air Force's Argument	Held
Nexus: does a positive drug test connect to efficiency/safety?	Henry: supervisors vouched for him; record doesn’t show nexus; he didn’t self-certify work.	Air Force: TDP duties are safety-sensitive; positive drug test threatens safety.	Held: Nexus established based on TDP safety responsibilities.
Penalty reasonableness (Douglas factors)	Henry: deciding official relied only on offense severity and wrongly found lack of rehabilitative potential.	Air Force: official considered Douglas factors and mitigation but removal was justified given safety risk.	Held: penalty within bounds of reasonableness; removal appropriate.
Disparate treatment (comparators)	Henry: agency treated others more leniently.	Air Force: offered comparators who were also removed; some reduced disciplines were via last-chance agreements (not true comparators).	Held: Henry failed to identify valid comparators or produce supporting evidence; disparate-treatment claim denied.
Procedural defenses: due process, MOU/rehabilitation, and cat’s paw reprisal	Henry: agency denied due process, violated rehab MOU, and (on review) removed him because of reprisal tied to his wife/OSI.	Air Force: provided notice/opportunity to respond; MOU didn’t bar discipline for TDP positives; no evidence of reprisal influence.	Held: no due-process violation shown; MOU did not preclude removal or retroactive reinstatement; cat’s paw claim not raised below and unsupported on review.

Holton v. Department of the Navy, 884 F.3d 1142 (Fed. Cir. 2018) (upholding removal for a positive drug test in a safety-sensitive role)
Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985) (tenured public employees entitled to notice and opportunity to respond)
Staub v. Proctor Hospital, 562 U.S. 411 (2011) ("cat’s paw" theory: biased subordinate can cause adverse action through a neutral decisionmaker)
Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999) (deciding official’s consideration of new, material ex parte information can violate due process)
Cole v. Department of the Air Force, 120 M.S.P.R. 640 (2014) (admission of misconduct sufficient to prove charge)
Patterson v. Department of the Air Force, 77 M.S.P.R. 557 (1998) (removal reasonable for aircraft mechanic drug use due to safety risks)
Dick v. U.S. Postal Service, 52 M.S.P.R. 322 (1992) (discipline reduced by last-chance agreements are not valid comparators)
Singletary v. Department of the Air Force, 94 M.S.P.R. 553 (2003) (framework for evaluating penalty within Douglas factors)