Employment Judge PrichardMs T May (instructed by solicitor) for claimantMs R Driffield (instructed by solicitor) for respondentDate 15 April 2019
JUDGMENT
It is the judgment of the employment tribunal that the claimant was fairly dismissed and his complaint of unfair dismissal is therefore dismissed.
REASONS
[1]The claimant Darren Moon is currently 36 years old and lives in Colchester. He has been a postman (“OPG”) with Royal Mail since 2 April 2007. He was dismissed with effect from 17 July 2018 for alleged gross misconduct. He had left a lightweight trolley (“LWT”), resembling, and sometimes referred to as, a “golf trolley” with 2 panniers on it, in Stable Road/Garland Road CO2, after he had finished his round for the day. He had simply left it there, overlooked it, and returned to the delivery office from which he worked, at Moorside, Colchester.[2]Having returned, whatever else went through his mind, he apparently did not realise that he had left this trolley and the “dead mail” in it. (“Dead mail” is a colloquial term in Royal Mail amongst the OPG’s for mail that is undelivered, typically parcels when the recipients are not at home to sign for them or they are too large, and also items that have to be returned to sender, typically if they are for previous occupants of premises, and the present occupants do not know the forwarding details for those occupants. They might also be items which the addressees do not want, for whatever reason). There were no items in the panniers still awaiting delivery. The claimant had finished his deliveries for the day.[3]The context in which the respondent works has been described to me by the respondent. Royal Mail is subject to the “USO” - Universal Service Obligation established by the Postal Act 2011. Royal Mail are unique in being subject to this regime I. They have to account to OFFCOM for any failing, and may be liable to pay fines.[4]The respondent struggles nowadays as there is so much competition from other deliverers, particularly in the more profitable metropolitan areas.[5]Mail integrity is, and has always been, a fundamental concept in the Mails Integrity Guide which was signed for by the claimant on the first day of his Royal Mail employment on 2 April 2007. There are subsequent policies; the Royal Mail Group Security of Customers Mail and Royal Mail Group Property, last updated August 2015. There is a new Mail Integrity Training Policy; 2 January 2018. I am satisfied that these are fundamental to the running of Royal Mail Group.[6]I was further referred to 2 conduct policies. First the Royal Mail Groups conduct police; 2 January 2018 but also a conduct code headed “A National Agreement between Royal Mail and the CWU”. The relation between the two is regulated by a clause in the former policy which provides: “in the event of any inconsistency between this (Royal Mail) policy conduct guides and the conduct agreement, the terms of the conduct agreement take precedence”.[7]The conduct agreement is undated. It provides as follows: “Safeguarding Customers Mail The responsibility of safeguarding the mail and giving it, prompt and accurate treatment is one of the most important duties of all employees. Various actions can cause mail to be delayed e.g. carelessness, negligence, breach or disregard of the rule or guideline. Such instances are to be distinguished from wilful delay. Although, they may be treated as misconduct and in more serious incidences could also result in dismissal”.[8]The code further provides: “Furthermore, Royal Mail does recognise that genuine mistakes and misunderstandings do occur and it is not the intention of the business that such cases should be dealt with under the conduct code, beyond counselling for the isolated incidents”. The code goes on to note that wilful delay of mail is classed as gross misconduct and: “Wilful delay is a criminal offence and can result in prosecution”.[9]Prior to working in Colchester, the claimant had started working in Ingatestone. He then moved to the Malden delivery office where he was apparently not happy at all. It seems, as a result of this, he applied for a transfer and was transferred to the Witham delivery office. His relief was short-lived there. A manager with whom he had had issues - Jeremy Lawrence - also moved to Witham.[10]By the claimant’s own account his time at Witham was utterly miserable. He says he suffered from bullying and harassment from his mangers and colleagues alike. He says he complained to his managers about other colleagues breaching the security of mail, particularly with high capacity trolleys (HCT’s), and management took no action over his concerns.[11]Furthermore, his having raised these issues alienated him from his colleagues. He reported all of this as bullying and harassment and has stated throughout this hearing that he started to be depressed and was suffering from “stress” - no more specific than that.[12]At the time of the incident of the forgotten lightweight trolley, for which he was dismissed, he had not sought medical help. The GP medical records that we have seen show that the claimant never reported feeling depressed to his doctor until the day after the forgotten trolley incident.[13]Nonetheless, the claimant’s evidence to the tribunal was that he suffered from failures of memory as a result of stress. He had contacted the respondent’s welfare service known as “Feeling First Class”, from whom he received regular telephone counselling. He was complimentary about this service and said it was really helpful.[14]The claimant also had stresses in his own life, and he still does have. He complained of feeling very stressed when his father went into hospital with sepsis over Christmas and that his mother at the same time broken her arm. He had had to do a lot to help out.[15]His marriage was becoming strained (although husband and wife are currently still together). They have one son who is now 3 years old. As a result of this deep unhappiness at Witham the claimant applied for another move of office, this time to Colchester. This made sense because they lived in Colchester, and had done during his time at Malden and also at Witham.[16]The claimant states that when he came to Colchester he found it extremely difficult to put the unhappy past in Witham behind him. He was losing sleep, selfmedicating with paracetamol for constant headaches, and still suffering from stress. He noted that the procedures which he had criticised in Witham were more strictly observed in Colchester. There were fewer security breaches in Colchester.[17]I need to describe the delivery trolleys. These are of two sorts - high capacity trolleys (HCT’s) and lightweight trolleys (LWT’s), or golf trolleys. LWT’s are typically used when a postman drives a van out on his / her round. They park the van up and typically do a walk of 45 minutes with all the mail to be delivered in 2 panniers hanging either side of the golf trolley. These are not secure. The pouches are not locked. The trolley itself is not locked or lockable. There are different protocols for dealing with these.[18]HCTs are used on more local rounds where the postman walks from the local delivery office to deliver the mail. The HCT’s are much larger, they can be locked up to prevent access to the trolley. The trolley itself can be locked to an immovable object with something like a bicycle padlock. Much of the work in Witham was local and carried out with HCTs. The claimant took various photographs in July 2017 of breaches of the procedures for using HCT’s which he had shown to his managers but they had not acted on. These are mainly pictures of trolleys left outside buildings, not locked to anything and without a postman in sight. They are stills.[19]I was shown a procedural briefing for both of these trolleys. It says: “They must be moved from delivery point to delivery point. If it needs to be unattended for a short time, secure it to an immovable object. Never leave it unattended for longer than 10 minutes. Do not use your HCT as a drop-off point”. As I understand it, a “drop-off point” would be a parked van where more substantial quantities of mail can be left for longer than 10 minutes in the cargo section.[20]The procedure for LWT’s is as follows: “LWT’s must be moved from delivery point to delivery point. Do not leave it unattended for more than one minutes unless you are delivering to a neighbour or a making an attended call delivering special delivery, tracked, or signed for items. With the exception of special delivery items, mail can be left in the cab if it is contained within a small delivery pouch, with the flap down and secured to the seat using the seatbelt. It must not be left for more than ten minutes. If you do not use the small delivery pouch then all mail must be secured in the cargo area of the vehicle”.[21]I was eventually shown a picture of a LWT. It can fold up like a baby buggy. At the end of a round it can be stowed in the small Ford van, ready for the next day’s round. The pouches must be removed and brought into the delivery office and checked in – “pouching off”.[22]Witham mainly used HCT’s. Colchester, the ones I have heard of, used LWT’s and vans. HCT’s are not carried around in vans. Apart from anything else, they are too heavy to manhandle in and out.[23]On the day of the forgotten trolley, 24/05/2018, the LWT was coincidentally discovered by a fellow OPG called Carl Smith. He sent an email to his line manager stating: “Yesterday on 24 May 2018 on my way home, I spotted an unattended delivery trolley with a delivery pouch hanging from it on Garland Road at about 12:45. At the time it appeared empty. On my way out about 10 minutes later it was still there but I spotted two vans close by so I assumed the driver was close by too. When I returned later at 15:45 it was still there and when I went to retrieve it I noticed there was mail inside. I moved it into my garden for safekeeping and then contacted the office to have it collected”.[24]He had telephoned OPG Johnathan Bright who later made a statement: “At approximately 16:15 on 24 May 2018 I received a call from Carl Smith telling me he had discovered a lightweight trolley in Garland road which had mail in it. Carl had put the trolley in his back garden for safety, before calling me. At about 16:45 I asked Steve Beard [another OPG] if he would recover said trolley, who returned it to the office about 17:10 where it was placed in the mangers office for security. The timings of those sightings have been much criticised by the claimant and his CWU representative, Steve Butts.[25]Further investigation consisted of Trimble printouts (a system for tracking the Royal Mail vans which records the times and places they are parked up). These enable managers to see where it was likely that a LWT would have been used, as opposed to shorter rounds where the postman would not bother with an LWT but just do a 10-minute walk from the van with a shoulder bag. I even supplied the parties with a printout of the area from Google Maps to try to get all this in perspective.[26]When he arrived at the delivery office on 25 May expecting to work, the day after the incident, Eamon Richards, who is another Delivery Line Manager (not the claimant’s personal line manager) spoke to the claimant about the equipment and the mail left out on the street.[27]The exchange went as follows: “I asked Mr Moon was he missing any equipment from his delivery yesterday. DM: No, I don’t think so. ER: lightweight trolley was found on Garland Road yesterday, was you not aware that you left it there? DM: No or I would have brought it back with me. DM: I did wonder where some items were when I got back. ER: Do you use the lightweight trolley every day? DM: yes AR: Do you work on your own? DM: yes ER: so, you only have one lightweight trolley? DM: yes ER: So, you didn’t realise you were missing it and the mail that was in the bag? DM: no”[28]Having reviewed this interchange quiet carefully. I see that the claimant did in fact say he had that he had not realised he had missed some mail, despite the fact that he professed, at a later time, to say: “… I did wonder where some items were when I got back”. That was something which the claimant’s management took considerable account of in the subsequent disciplinary process.[29]Following that, the claimant was subject to a “precautionary suspension” according to Mr Crawley (who had the authority to take this step). This was for 2 reasons:(a) Apparent seriousness of the conduct in question.(b) In order that the investigation should not be hampered [by which he was referring to possible discussions with colleagues / managers about this].[30]This suspension had to be reviewed after 48 hours, and was so reviewed. The claimant received another letter confirming the continuation of the suspension.[31]The claimant makes a major complaint that Mr Crawley who was the manager who subsequently made the decision to dismiss him had pre-decided the disciplinary process by the very act of suspension. I was informed that Mr Crawley was the right person to suspend under the respondent’s procedure.[32]The claimant’s immediate line manager was Emma Roper who was a Delivery Line Manager. She reported the incident to Scott Crawley, who is the Delivery Office Manager. Authority to suspend, lay with him. Emma Roper could not have done that. Nor could Emma Roper conduct a disciplinary hearing where a possible outcome was dismissal.[33]Ms Roper however, coincidentally, had just given the claimant a sanction which would be generally known as a “first written warning” for a totally different offence by letter of 26 May 2018.[34]As chance would have it, the conduct in question was that the claimant had broken off from his round and gone home for a period of time because he was feeling unwell. On his return, because it was quite late, compared to the usual finish time, he had booked overtime it appears. This he completely denied. His explanation for all of this, for what it is worth, did not really add up. I find it hard to believe that he could have been given a 24-month warning for “dishonesty-fraud” if he had not claimed time to which he was not entitled by reason of being off duty in the middle of a round but I make no formal finding. I do not have to. The claimant states that he appealed. He states that the appeal was not dealt with and that Emma Roper never responded to his complaint. I have no idea what happened there. The trail went cold.[35]This is not relevant to the decision I have to make today under s 98 of the Employment Rights Act 1996. Subsequent managers took the view that this warning did not count towards the claimant’s dismissal for gross misconduct. They regarded it as a serious offence of breach of mail security/integrity that had occurred on the claimant’s round when he left an LWT in the street and forgot it, with mail in it. It was a sole sufficient reason for summary dismissal.[36]One of the extra disciplinary charges which was later brought was that the security of Royal Mail’s equipment was breached. Postal pouches and Royal Mail marked golf trolleys are such equipment. What the respondent apprehends here is possible impersonation of a Royal Mail postman for fraudulent purposes. One can understand that. It is not just the value of the equipment. That too was therefore a serious charge and possible gross misconduct in itself.[37]The respondent has a formal and convoluted conduct procedure. The claimant was first called to a fact-finding interview with Emma Roper. He was accompanied there again, this time by Mark Windred from the CWU. The claimant confirmed that he had 7 return-to-sender items from 6 Garland Road. He also confirmed that he had left P379 cards at 4 addresses - 6 and 7 Caesar Court, 5 Emperor Court and 10 Domitian Court. He agreed he had not reported any lost items or trolley on his return to the delivery office.[38]The claimant at this stage then provided details of mitigation which he had prepared. It was 5 pages of which he read two paragraphs to Emma Roper describing his difficulties with coming to terms with his treatment in Witham, and his father going into hospital with sepsis. He stated: “I found it harder to concentrate and have lapses in my memory which was bad at the time and have gradually been improving since the move to Colchester in January 2018. I find it very hard with change. I was in a negative frame of mind and could not embrace change. The staff at Colchester are very nice and light-hearted and I have made a few friends already which I could not say about Witham. I found this hard to come to terms with as I find it harder to mix with people and express my feelings. I deeply regret the work-related incident and my suspension on the 26 May. I believe the treatment I received in the previous office along with my dad and mum becoming ill has contributed to the incident. I am improving each day and I am taking active steps by receiving counselling from Royal Mail which is currently helping me a lot”. That was at the fact-find interview on 1 June.[39]The claimant’s medical records show the first mention of depression. On 25 May just before 3pm the claimant saw a doctor at his G.P surgery, reporting with insomnia. He explained to me he was having counselling, and could not get to sleep, watching movies on his laptop. He was advised to try Citalopram anti-depressant medication at 20 mg pd (an average starter dose). He was prescribed a single packet which he finished but he never returned for a repeat prescription. That was his only experience of anti-depressant medication.[40]As the respondent correctly contends, all this happened after the incident and after he had been suspended. There is no hint going back over the years in the medical records. He is not a frequent visitor to his G.P anyway. His main, if not only, presenting problem had been an upper respiratory tract infection.[41]After the fact-finding interview Ms Roper recommended that the matter be referred onward for a disciplinary hearing. She said that Mr Crawley would contact him shortly. The claimant was contacted on 21 June asking him to a formal “conduct meeting” as it is known by the Royal Mail (disciplinary hearing) to answer the following charges:41.1 breach of mail security;41.2 unexcused delay of mail;41.3 failure to safeguard Royal Mail equipment;41.4 failure to report incident to a manager.[42]The claimant was going on pre-booked leave at that stage. He asked for the meeting to be postponed. It eventually took place on 2 July, after his return. The claimant was again represented by Mark Windred (CWU). The notes were recorded by Mr Crawley himself.[43]The claimant has complained strenuously about the accuracy of those notes but he was given the chance to amend and make additions. Even now he has not apparently covered all that he disagreed with.[44]Following that meeting Mr Crawley found that the claimant was guilty of gross misconduct and that the proper sanction was summary dismissal.[45]The main conclusions were: “My reasons: Darren has completely failed to maintain security of mails and Royal Mail equipment. He had no recollection of the missing LWT and items of mail until an initial discussion the next morning. Even after loading his vehicle to return to the office and after pouching off. There was no realisation of missing items then. This is such a serious breach of mail security and safeguarding Royal Mail property that all trust between managers and Darren has been lost. There is a high probability of it a repeat incident which could damage the Royal Mail brand”.[46]Progressing from that onto my own conclusions on this case, that reasoning above is a good summary which has actually captured the nature of “gross misconduct” better than it is usually understood by managers.[47]The term “gross misconduct” is misleading, confusing, anachronistic, and widely misunderstood. Essentially, it is a mirror image of constructive dismissal, which is characterised by a loss of trust and confidence, a breach of the implied term of trust and confidence. The word “trust” is used by Mr Crawley.[48]Another important concept is the high probability of a repeat occurrence. Summary dismissal should properly be seen as an exercise in risk assessment rather than crime and punishment. It is this assessment of risk that results in the loss of trust. I can well understand, on the presentation made by the claimant, there was no reason for the respondent to think and he would not repeat such conduct. Despite the claimant’s genuine remorse for the fact that it had happened. He had no convincing explanation for why it would not happen again. I do not consider the fact that he was receiving counselling or the fact that he had started to take Citalopram (even though he discontinued that shortly afterwards), should have given any cause for thinking that the claimant would not repeat this conduct possibly because of non-specific stress.[49]There have been some arid debates during the hearing as to whether the claimant did this “deliberately”. My own clear conclusion (for what it is worth) is that he did not and that it was a mistake. It is not for this tribunal to substitute its view for that of the employer which I consider was well summarised in Mr Crawley’s conclusions. Mr Crawley accepted that this was careless, and negligent, and not deliberate. There was no earthly reason to think that it would have been deliberate. The claimant was clearly committed to his job with Royal Mail.[50]An important aspect of the respondent’s findings, was the fact that, having made the mistake, the claimant had followed certain procedures when returning to the delivery office. He had not realised that he had made the mistake. A more conscientious checking-in or “pouching off” might have revealed the loss of returned items (dead mail) and loss of the LWT itself, even though it would have been folded down in the van. The van is not that large, it is just a small size Ford van – not a Transit. Had that been the only part of it, I would have considered summary dismissal to have been well within the range of reasonable responses.[51]The word “deliberate” unfortunately was imported from the list of examples of gross misconduct given in the Royal Mail’s and the CWU conduct polices. The example was: “deliberate disregard of health, safety and security procedures or instructions”. That was not helpful. Examples of gross misconduct offences in disciplinary procedures are seldom helpful.[52]During his oral evidence the claimant repeatedly stated, “it was a mistake”, as if that that would excuse it. I considered his logic was flawed here.[53]I am critical of some of Mr Crawley’s logic too. He seemed to hold the claimant’s length of service against him. He thought that as the claimant had been there 11 years as a postman OPG he should have known better. That did not however, in my view vitiate the outcome or render it without the range of reasonable responses.[54]The claimant appealed on 17 July in response to the dismissal letter of 16 July. Later he expanded on the grounds of appeal himself. (His sister is in HR). He enlarged the argument to a claim of disability discrimination because of his stress, and also for making protected disclosures for an alleged failure to carry out security procedures at Witham. Neither of these aspects was pursued in these tribunal proceedings. These proceedings are purely for s 94 unfair dismissal.[55]The main headings of the appeal were: a breach of the actual code (which was never clarified), that the sanction was not within a range of reasonable responses, that suspension was not a neutral act. The claimant was saying that the investigation was one-sided because it failed to investigate his mitigation i.e. his stress, referred to in the quotation above.[56]Joe Miranda conducted the claimant’s appeal against the dismissal. The hearing was on 9 August 2018. The appeal outcome which is undated was approximately 2 months later in October. Mr Miranda went into a lot detail. Mr Miranda’s job title is Independent Caseworker Manager. He is based at Watford. His role consists of hearing Royal Mail stage 3 grievance appeals, appeals against dismissal, and other conduct sanctions. It is his full-time job. Mr Miranda ultimately upheld the sanction of summary dismissal.[57]Mr Crawley had rejected the charge of delay to the mail. This case did not result in any delay to the mails or undelivered mail. There were just returned items in the trolley. As it happens, the items did come back into the office in time for people who had been given a P379 slips to collect the undelivered items from the delivery office (24 hrs after non-delivery).[58]At his appeal the claimant was represented by Steve Butts who is the CWU divisional representative. He works out of an office in Stevenage and has special union duties for the South-East. He is on a special rate of pay. He argued admirably and vigorously on the claimant’s behalf that the dismissal was an “over-zealous” decision.[59]Mr Miranda looked in detail at the stress and such evidence as there was. There were records from the claimant’s counselling sessions and he took note. But above all he stated that afforded no good basis for excusing such a serious omission by the claimant.[60]Mr Miranda also expounded some theory before the tribunal that the fact that he had later realised his error when he went through the pouching off procedure back at the office, made it “deliberate”. I must say I do not understand his logic there. It appears to have been a sustained lack of awareness, carelessness, call it what you will. “Deliberate” does not seem to characterise what the claimant clearly did, (or rather, did not do).[61]Be that as it may, it is the outcome that I have to consider, rather than every turn in the road toward that outcome. Mr Miranda was clear: “I believe that Royal Mail has made it explicitly clear to employees what standard of behaviour is expected of them, and also the potential consequences of failing to adhere to that standard. Despite frequent reminders regarding delivery instructions, security procedures and delivery methods, Mr Moon’s deliberate failure to carry out correct delivery procedures and later basic vehicle checks led to this serious breach of security and mails integrity. The photographs provided by Mr Moon at the appeal hearing are not comparable to his case, in that they do not involve the post person using an LWT nor do they show that the post person used their HCT in contravention of the standard operating procedures”. “I also believe that Mr Moon’s actions on the day would warrant summary dismissal even if his conduct record were clear [this refers to the previous warning or penalty for fraud-dishonesty].[62]As I stated, despite the logic about it being deliberate, which is hard to sustain, I can understand some of the logic. There was evidence of sustained carelessness not just one-off carelessness. Checks and procedures were in place to detect accidents and omissions. The claimant should have realised what had happened. He must have been switched-off when he was pouching off and logging off his round and returning the van without checking whether the trolley was in it or not.[63]The claimant started at Colchester in January 2018. He had been there therefore for over 4 months before the incident. He had received some induction. It is not clear what. He had always been in delivery offices although each one differs in its character, as already described.[64]From time to time there is a routine work-time listening and learning session WTLL. There had been one on 7 May. Unfortunately, the claimant could not be there but there was a comprehensive briefing note about what had happened at that session, and there were written instructions that went with it, about the high capacity trolleys and the lightweight trolleys, and the procedures to be followed with them.[65]Royal Mail makes it a principal to hold these sessions often to ensure that standards are kept up to the maximum. Security of mail is paramount for them.[66]On these facts, was the claimant or was he not unfairly dismissed? Further to my observation about the dismissal conclusion by Scott Crawley, unfair dismissal is regulated ss.94 and 98 of the Employment Rights Act 1996. In short, the respondent has to prove a reason for dismissal which is in one of the mentioned categories. In this case the respondent believed it was conduct which comes under s.98(2)(b). There has been some suggestion that this may have to do with capability. I found that logic impossible to follow. This was straight forward conduct. Although it was a mistake, carelessness, or negligence, such actions can always be “conduct”. Note the word used in the act is just “conduct”, not misconduct (although it usually will be).[67]Under s98(4), having found that the employer had a reasonable belief that there was a conduct reason. I have to ask if it was fair or unfair, “… having regard to the reason shown by the employer whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”.[68]The leading case on what is presently s 98(4) ERA is the old case of Burchell v British Home Stores Ltd decided at a time when the burden of proof on reasonableness was not neutral, but on the employer. The range of reasonable responses test has been discussed above. I cannot not substitute my own view for that of the employer.[69]One of the claimant’s main points has been his mitigation. I consider that his mitigation was sufficiently considered by both managers. In reality, it amounted to very little. “Stress” is a vague word. It is not even a medical diagnosis. It may be a symptom. Many, many, people suffer from it, from time to time. I consider both managers gave it the consideration it merited.[70]The photographs of the Witham office were largely discounted. The managers were told that the Witham management had anyway not taken any action which they had been shown. It was therefore not incumbent on them to make a repeat report after the claimant had taken many more such photographs a year later during his suspension in July 2018. As Mr Miranda said, whatever you thought of the trolleys apparently being unattended and unlocked there was no conclusive evidence that an OPG was that far away. These were stills. It did not in either of their minds tend to lessen the claimant’s guilt on what had occurred on 24 May. I do not consider that an unreasonable conclusion for either manager to reach.[71]Forgetting Mr Miranda’s “deliberate” theory basis that this could be accepted as accidental, both managers would have considered that to amounts to gross misconduct. Just as negligence in a highly skilled job such as surgeon, or airline pilot, can be considered to be gross misconduct.[72]There was no actual loss in this case. However, a near miss caused by negligence and not deliberate, can cause loss of trust. It is conduct, not necessarily misconduct. Carelessness is not to be judged by its consequences, but by its effect on trust.[73]I do not consider that capability would be a proper category to categorise the events in this case under s98(2)(a). Both managers consider there was a very real possibility of a repeat incident. The incident was not sufficiently well explained by the claimant to give any reassurance that it would it not happen again. Even despite the chastening effect of the formal conduct process, the dismissal and the appeal.[74]As Mr Miranda correctly noted, the claimant was well aware of security procedures because he had effectively set himself up as a whistle-blower in Witham over what he perceived to be lack of security there. It was ironic therefore that he was dismissed for serious breach of mail security in Colchester.[75]For all these reasons the claimants claim is dismissed. He was fairly dismissed and I consider that the process and the sanction were well within the range of reasonable responses, not just marginally so.