the prospects for rehabilitation." Overbee v. Dep't of Health and Human Resources/Welch Emergency Hosp., Docket No. 96-HHR-183 (Oct. 3, 1996). An allegation that a particular disciplinary measure is disproportionate to the offense proven, or otherwise arbitrary and capricious, is an affirmative defense and the grievant bears the burden of demonstrating that the penalty was clearly excessive, or reflects an abuse of the employer's discretion, or an inherent disproportionate between the offense and the personnel action. Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995). See Martin v. W. Va. State Fire Comm'n, Docket No. 89-SFC-145 (Aug. 8, 1989).

“When considering whether to mitigate the punishment, factors to be considered include the employee's work history and personnel evaluations; whether the penalty is clearly disproportionate to the offense proven; the penalties employed by the employer against other employees guilty of similar offenses; and the clarity with which the employee was advised of prohibitions against the conduct involved.” Phillips v. Summers County Bd. of Educ., Docket No. 93-45-105 (Mar. 31, 1994); Cooper v. Raleigh County Bd. of Educ., Docket No. 2014-0028-RalED (Apr. 30, 2014), aff'd, Kanawha Cnty. Cir. Ct. Docket No. 14-AA-54 (Jan. 16, 2015). Due to her tenure and training with the agency, Grievant was well aware that disclosure of confidential information is an egregious violation of the confidentiality standards required of her position. Basically, Grievant knew better yet divulged confidential information. Absent inappropriate statements regarding management or insubordinate behavior toward a supervisor, a five-day suspension would not be disproportionate to the offense of breaching confidentiality. Grievant failed to prove the penalty was excessive; thus, mitigation was not warranted.