judge may do so for them the petitioner petition to drop off the movie was a social supervisor twenty years going to example a record the postal service conducted a five month investigation not directed or missed most b but which found that during this five period there were three discrete incidents where this most be there were errors in her time records supervisors are held to a pretty high standard time do you think that applies here yes yes sure it does but in this case that standard is the culpable negligence standard which states that a person of her position of the what the person of the petitioners position should know or should have done it makes the do relative to the issue in this case the supervisors in this particular case the postal service charge her with culpable negligence however they never proved that she had actual knowledge of these errors nor did they prove or even allege that there was any way they all the petitions position could have been all about these errors instead what they found was that the petitioner kept her all records that she believed her records to be accurate that she checked her actual pay of this error moreover the government didn't approve or didn't even argue that there were facts of which she showed no the only time any information that proved that this simple mistake was made came into play was after the petitioner had been charged after she had sought counsel after she had gone through formal discovery process and been granted access to electronic records in your client and the that that am indicated as to when she arrived and when she left were accurate was she was provided with that information but it but again it is our position that information only available formal discovery is not information that would have been available to the particular person over petitioners position and or expertise and the idea that culpable negligence standard is that the duty is triggered by knowledge she had or should have had so no doubt it should not have had information that is simply not available information only available after being charged with a crime and go through formal discovery is electronic clicks are simply evidence of a fact right that's correct and the fact is when she left i mean that is correct and better when she mapped then she i reason that somebody commits error the very definition of the existence of the culpable negligence standard implies there is a difference between culpable edwidge and cope skewered me culpable negligence and a simple mistake in this case the post office and the board hit is reinterpreted culpable negligence too including any conceivable mistake any simple error particularly in this case where the  such a small amount under two hundred forty dollars while this very percentage will go on such mistakes being made by postal supervisors all across the country we're not going to demote every single one of them there must be a difference between culpable negligence and a simple mistake and while yes the petitioner had a duty to to do what is reasonable for someone of her position to ensure that she had accurate information she did that in this case she just made a mistake a mistake and the money should have been paid back by a normal post office procedures but not a mistake wising to culpable negligence or coming in or near that well now did the times clocks an hour at two forty pm at it an hour later is that right that this isn't i'm confused about how they're they're calculating is because then i see total time in building is is there a disconnect between the two for departure which looks like an hour she was there for an hour or is the eight forty five or train and that's  left at two thirty pm right and that's not i can see making a mistake of five or ten minutes my watch is fast you know i didn't i don't see a clock but that's a big state in this case  calculated based on the time of day her case gets additional because she's working on hours even though the training occurs during normal duty hours she supposed to be credited with or working hours and on there was a the the agency is allowed to pick and choose to make its own determination of which factors apply and how or why they should apply however the the fundamental element of the douglas test is that the agency has an affirmative duty to actually make some deliberate analysis they must actually think about the punishment so that it is mistreated good took that into account recognize the fact that some judge weighed those factors the agency did not in fact an agency specifically testified that very relevant factors such as the fact that this is something that is not uncommon and that there's an existing way policy to deal with it the agency specifically testified they didn't even think about that they didn't consider it more over the agency specifically testified that they actually didn't make any effort to think about what factors they were including in what factors they want we submit that when an agency specifically testifies it made no effort at normal rational determination of why or how did the douglas analysis it cannot be douglas test or proving that it made a we've course believe it was an error for the administrative judge to just presume such analysis took place where the agency has said they did not do with that we believe the board erred by holding it in the fair judge from a thirteen to a seven that's pretty stiff penalty isn't it well there is no evidence as to you maybe a lesser penalty but it's barely a lesser penalty it is a it is a  much beyond that it was an instruction or a request to a subordinate which is in the nature of it structurally to alter her end times for the three days in question now we don't have this  far as i know in the record information as to why the dates might not have just changed it might be that she worked at twelve thirty on those other days and these are the only dates in which she could change the hours it directed to change but the broader and not informing the agency not reporting the overpaid those facts taken to get or did it warrant the penalty of demotion in this case it would help me out again let me let me  take you to september fourteenth which is the day that strikes me as the most problematical in trying to understand how this plays into the theory of the case she arrived initially at eight forty five in the morning for training correct that is correct and so she is supposed to be paid for that training period to take a better understanding and then she clocks into her actual job at one thirty four correct correct and then clocks out to forty what would have happened if she had not asked for any adjustment all of the of the departure time which she had only been creek credited with one hour of work on that day i'm not aware of anything in the record that explains what happens when a person's clock many lawyers working with lawyers are expected to keep track of their hour as accurately as active as possible certainly mistakes can be made but not when they're done with with this sort  of a method of charity out of changing your personal account to reflect it after eight hours and then to request that your subordinate employee make changes to the time evaluated and balanced the drug with factors and recognize that certain factors were not take into account by the argument is that the agency needed to take into account all of these factors and because the agency did not take into account all of the relevant factors including the amount of money involved that that renders the penalty  questionable well in effect the court in douglas said that the board need not consider every one of the twelve those factors mechanistically by a preordained formula excuse me that was this court both in this case the agency did consider her past work record it considering the nature and seriousness of the offense although it did not consider the frequency or amount of underpaid sitter that she had left the facility and admitted those in some circumstances could be relevant factors but in this case it's simply one of the factors for the doctors test is the nature and seriousness of the offense overall and the fact that she had instructed an employee to make these changes that he'd recorded her hours falsely but the administrative judge correctly found that and the board affirmed that the agency's demotion decision was rational even if it didn't i say all of the conduct in question here the instructions to her subordinate to change records that was simply resulted in an adjustment a want our then the agency and dollars or remove even in place of personal language and when there was no personal gain so certainly when there is personal gain no matter how large or small this court has asked certainly never help it you know just because there negligence or because it was a small amount involved therefore it's not within its rights to demote remove the person in the cases we cite some wiggle room we've demonstrated that the court has done so and so in this case we do have a and she did not wrong to counsel has indicated that she did not have information available to her that the writers were not available to her but but  point i'd like to address is this suppose that policy accounts was referred to in fact the testimony from the deciding official was simply a response to a question does the poster service have a mechanism to require  that money here we have something very different we have no way alteration of ours and knowing that acceptance of pay for time at work and this is a bit of testimony here does not address whether there's a procedure policy regarding  the transcript beginning on page thirty ni here this is sometimes a source of frustration for us when in looking at appendices and not having access to the full record that we have three rather separate pages we have page forty three page eighty nine ninety three of the transcript the pertinent page with respect to the discussion of the amount of money the issue is page eighty nine which is the j a forty but it appears that this is part of an ongoing discussion of the douglas factors you happen to have access to the full transcript which would indicate anything else that was said on the douglas issue art i've read you ever also page ninety three when i said but now i'm trying to when it's not was there some additional discussion questioning about the douglas factors beyond page in the page eighty eight that joel marshall moved it was punished for manipulating time for altering time for directing a change for instructing or a question time for stealing money but these were attentional crimes they really couldn't prove it and so they didn't even try instead they brought a lesser charge i believe they did not even prove the lesser charge but even if they had they clearly did not apply the douglas factors because as the post office has maintained all along even to this very day they would punish her for a far more severe crime that that which she has ever charged and certainly more severe than anything they approved and against her the dog those factors are not a smokescreen by which the agency can claim that justification for punishment after the fact that her dog was test is  agency it gives the agency why latitude in memory says these are factors you can apply them in any way you want but you've got applied and it's your job to prove that you're a true thought about what you're doing then you made some effort to make the punishment fit the crime or the error in this case that the post office made no such effort the post office very specifically testified that we didn't we don't even think about we had enough we had what respondents said right here i mean we know what the post office recognizes this happens and that they didn't consider how they handle with every other time that incident like this happens and most importantly we again there is no justification let me let me take specifically where i'm going with that is i mean counsel for the government says that there was discussion of the nature and seriousness of the offense and some of the pages that we don't have or you cite i may be reading more into what he said than that he did but that would presumably be another way of saying that this was a more serious offense rather than saying that you took into account the specific amount of money and i mean is it's it's another way of saying this isn't just a minor technical error i  i guess what i'm asking is when is it that is in those other pages that we don't have that might reflect on the nature and seriousness of the fence just the other the major factors that affect or that the post office has never or it's as though the post office got caught just drawing out a punishment that they they did not consider and then said or we took this into account we took this into account the very fact that they could simply say they took it into account but not showing any kind of analysis was their reason for specifying those factors it's not that they consider that it's that they can get away with merely same they did because they such consideration or had no real material impact on the case it is more to the point that there is a very real factor that these things happen not uncommon that there's a way of dealing with th