Opinion

William Macklin v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 26, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM CODY MACKLIN, DOCKET NUMBER

Appellant, DA-0752-24-0075-I-1

DEPARTMENT OF DEFENSE, DATE: May 26, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carl Dahms , Oklahoma City, Oklahoma, for the appellant.

Samuel Frank Lazzaro Jr. , Esquire, Bindi D. Kommuru , Esquire, and

Brandon Roby , Esquire, Fort Meade, Maryland, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

found that the agency proved the charge of conduct unbecoming a Federal

employee, found that the agency established nexus, determined that the appellant

did not prove his claim of harmful error, and upheld the removal penalty. On

petition for review, the appellant asserts that the administrative judge erred in his

harmful procedural error analysis and his evaluation of disparate penalties in the

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

penalty analysis. Petition for Review (PFR) File, Tab 1. Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

erroneous interpretation of statute or regulation or the erroneous application of

the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

The appellant does not challenge the administrative judge’s evaluation of

the charge and nexus. Initial Appeal File (IAF), Tab 30, Initial Decision (ID)

at 6-8. We affirm the initial decision in this regard.

Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an

agency error is harmful only where the record shows that the procedural error was

likely to have caused the agency to reach a conclusion different from the one it

would have reached in the absence or cure of the error. Stephen v. Department of

the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). In the initial decision, the

administrative judge determined that the agency committed a procedural error by

failing to issue its notice of proposed removal or a notice of consideration of

discipline within 45 days of November 22, 2022, as required by § 5.02 of the

Master Labor Agreement. ID at 12-13. However, the administrative judge

determined that the appellant did not identify how the agency’s error was

harmful. ID at 13-14. Indeed, the administrative judge acknowledged the

appellant’s testimony that he would have stopped creating fake service desk

tickets and fake customer email records in November 2022 if the agency had

addressed the issue with him at that time. ID at 13. Even if this testimony was

true, the administrative judge noted that the appellant did not explain how he was

prejudiced by the delay such that it impacted the removal decision. Id. Indeed,

the administrative judge noted, among other things, that the appellant’s conduct

was “admittedly intentional,” so he could have decided to stop at any point, the

“volume of fake records he created was entirely attributable to him,” and his

actions in accessing the ITSM+ system while on administrative leave to alter the

fake email addresses occurred after he knew the agency had proposed to remove

him. Id. Therefore, the administrative judge concluded that the appellant did not

prove that the agency’s delay in issuing the notice of proposed removal would

have led to a different outcome. ID at 13-14.

On review, the appellant asserts that, if the agency had acted earlier, “the

additional infractions would not have existed.” PFR File, Tab 1 at 3. For the

reasons discussed in the initial decision, we are not persuaded by this statement.

However, even if we only consider the allegations that predated November 22,

2022, the appellant has not explained how a different outcome would have

resulted. Specifications 1-6 address the appellant’s misconduct from May

through October 2022. 2 IAF, Tab 5 at 83. In these specifications alone, the

agency charged the appellant with declining 1,370 customer service requests by

phone and 7 requests by email, creating 27 fake customer email records ending

with “.mom,” and creating approximately 1,377 fake service desk tickets. Id. As

noted in the initial decision, the appellant admitted to this misconduct. ID at 5;

IAF, Tab 28 at 11. The appellant has not persuaded us that the agency would

Because the administrative judge found that November 22, 2022, was the relevant date

to trigger the 45-day timeframe in § 5.02 of the Master Labor Agreement, we have not

considered the agency’s allegations starting in November 2022 or thereafter. IAF,

Tab 5 at 83.

have reached a different conclusion based only on the allegations from May to

October 2022, and thus, he has not proven his claim of harmful procedural error.

The administrative judge also discussed disparate penalties in his

evaluation of the penalty. ID at 11. In pertinent part, the administrative judge

noted that the appellant’s coworker also created fake customer email addresses

and tickets after being taught how to do so by the appellant. Id. The

administrative judge noted that, in contrast to the appellant, the coworker made

far fewer fake tickets and did not access the ITSM+ system while on

administrative leave to alter her fake records. Id.; IAF, Tab 28 at 13-27. Given

these differences in severity and type of misconduct, the administrative judge

found that the deciding official reasonably determined that there were no

employees with the same or similar charges and circumstances. Id. (citing Singh

v. U.S. Postal Service, 2022 MSPB 15, ¶ 13). Even assuming that the coworker’s

conduct was like the appellant’s, the administrative judge found that the

difference in penalties did not require the agency to impose a more lenient

penalty. Id. (citing Singh, 2022 MSPB 15, ¶ 18).

On review, the appellant asserts that the administrative judge “rendered his

decision based on the fact that the appellant . . . had more infractions than the

other employee who was suspended.” PFR File, Tab 1 at 3. He appears to assert

that, had the agency addressed these issues with him in November 2022, he would

have been treated the same as the other employee, i.e., he would have received a

suspension. Id. This assertion is not persuasive.

The Board will review an agency-imposed penalty only to determine if the

agency considered all the relevant factors and exercised management discretion

within tolerable limits of reasonableness. Douglas v. Veterans Administration,

5 M.S.P.R. 280, 306 (1981). The administrative judge discussed the deciding

official’s consideration of numerous relevant penalty factors, including the nature

and seriousness of the offense and its relation to the employee’s duties, the

agency’s table of penalties, mitigating factors, rehabilitative potential, and, as

relevant here, the consistency of the penalty with those imposed upon other

employees for the same or similar offenses. ID at 8-11.

We discern no error with the administrative judge’s analysis of disparate

penalties. In Singh, 2022 MSPB 15, ¶ 14, the Board held that, in assessing

disparate penalties, the relevant inquiry is whether the agency knowingly and

unjustifiably treated employees differently. Here, the record reflects that the

coworker engaged in considerably less misconduct than the appellant 3 and,

unlike the appellant, she did not alter any records while on administrative leave

following her receipt of the notice of proposed removal. Compare IAF,

Tab 5 at 82-108, with IAF, Tab 28 at 13-27. Thus, the agency was justified in

treating the appellant and the coworker differently. 4 However, even if we

determined that the sustained misconduct between the appellant and the coworker

was comparable, a different outcome is not warranted. The Board has held that

there will often be a range of penalties that fall within the tolerable limits of

reasonableness in any given case, and the fact that the agency chooses to impose

a penalty at the more lenient end of that range in one case should not mean that it

cannot impose a penalty at the more severe end of that range in another case.

Singh, 2022 MSPB 15, ¶ 18. We discern no error with the administrative judge’s

penalty analysis or his conclusion that the removal penalty was reasonable for the

sustained misconduct.

The record reflects that, on May 2, 2023, the agency proposed to remove the coworker

based on six specifications of conduct unbecoming, involving allegations that the

coworker created 38 false email records and 83 false service tech desk tickets between

September 2022 and February 2023. IAF, Tab 28 at 22-26.

Even if we only considered the appellant’s misconduct from May to October 2022, as

discussed above, the coworker still engaged in considerably less misconduct.

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following