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THE WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE BOARD JENNIFER IRENE BLOSSER, Grievant,

V.

Docket No. 2025-0576-DoHS

DEPARTMENT OF HUMAN SERVICES/ BUREAU FOR SOCIAL SERVICES, Respondent.

DECISION

Grievant, Jennifer Irene Blosser, is employed by Respondent, Department of Human Services, Bureau for Social Services. On March 21, 2025, Grievant filed a lengthy statement of grievance against Respondent with attachments asserting she was wrongfully suspended without pay from March 24-28, 2025, for incidents which occurred on December 3, 17, and 19, 2024. For relief, Grievant states, “I would like this to be taken and stricken off my file and be compensated for the days I was suspended with out pay. Also I would request an internal investigation of Brandice Bragg. Associates should be given opportunity to speak confidentially due to retaliation by Ms. Bragg.”1 The grievance was properly filed directly to level three pursuant to W. VA. CODE § 6C-2-4(a)(4).

A level three hearing was held on August 14, 2025, before the undersigned at the Grievance Board's Charleston, West Virginia office. Grievant was present and self-represented. Respondent appeared by Laurea Ellis, Deputy Commissioner, and was represented by counsel, Deputy Attorney General, Steven R. Compton. This matter

1 Grievant’s request for investigation of a co-worker is not within the jurisdiction of the Grievance Board and, thus, will not be addressed.

became mature for decision on September 26, 2025, upon final receipt of the parties' written Proposed Findings of Fact and Conclusions of Law.

Synopsis

Grievant is employed by Respondent as a Child Protective Service Worker. She asserts that she was wrongfully suspended without pay for five days. Respondent asserts that Grievant has not maintained the expected standard of conduct; therefore, Grievant was properly suspended without pay. Respondent proved by a preponderance of the evidence that the five-day suspension for misconduct was justified for violation of law, policy, and insubordination. Grievant failed to prove any affirmative defense or that mitigation was warranted. Accordingly, the grievance is denied.

The following Findings of Fact are based upon a complete and thorough review of the record created in this grievance:

Findings of Fact

1. Grievant is employed as a Child Protective Service ("CPS") worker for Respondent in the Wood County Bureau for Social Services.
2. Brandice Bragg was Grievant's supervisor from September 2022 to September 2024, when Grievant requested a different supervisor. Dale Chidester is Grievant's current supervisor but did not testify at the level of three hearing. Both supervisors assist all CPS workers.
3. Shannon Elkins is the Social Services Manager ("SSM") at the Wood County Department of Human Services ("DoHS").
4. On December 3, 2024, Grievant inadvertently called Supervisor Bragg while Grievant was in Magistrate Court seeking a ratification order for removal of a child.

Believing Grievant called Ms. Bragg purposely, Ms. Bragg muted her telephone and continued to listen. SSM Elkins was sitting in Ms. Bragg's office at this time. Ms. Bragg heard Magistrate Kuhl ask the name of the reporter, then she heard Grievant disclose the name and employer for the reporter of the abuse regarding the subject child. Ms. Elkins was not paying close attention when Grievant disclosed the name and employer; however, she immediately began to listen closely after Ms. Bragg exclaimed, "Did you just hear what she did? She just told Magistrate Kuhl who the reporter was!" Once Grievant realized the call was in progress and spoke, Ms. Bragg asked Grievant why she disclosed the reporter's name. Grievant responded, "Because he asked." Ms. Bragg asked, "I know he asked, but why did you tell him?" Again, Grievant gave the same reply. R. Ex. 1 and 4; testimony of Bragg and Elkins.

5. In the level three hearing, Grievant confirmed the telephone call with Ms. Bragg, but denied stating the name of the reporter to Magistrate Kuhl. Grievant presented an email dated March 21, 2025, from Magistrate Kuhl regarding their conversation on December 3, 2024. Grievant did not present Magistrate Kuhl as a witness. G. Ex. 1; testimony of Grievant, Bragg, and Elkins.
6. On the same day, CPS Supervisor Rachel Deem took a call from a respondent mother, J.M. The mother advised Ms. Deem that Grievant had discussed J.M.'s CPS case with J.M.'s father, S.M., and workers at CSL plasma donation facility. J.M. stated that a sibling received intimate details of J.M.'s case from her father—details only known to CPS. On December 4, 2024, Ms. Deem contacted SSM Elkins in response to the mother's complaint. Respondent did not present J.M., S.M., or Rachel Deem as a witness. R. Ex. 1 and 8.

7. There was confusion between Ms. Elkins and Mr. Chidester regarding who would handle the complaint by J.M. Neither further investigated until eight months later, after the suspension had already been issued, on August 5, 2025, when Ms. Elkins contacted Meghan Akers, former CSL plasma facility employee. Testimony of Elkins and Ellis.
8. Grievant admitted that she asked the grandfather, S.M., in person at the plasma facility, whether he was willing to accept placement of his grandchildren, but Grievant denies disclosing further details to S.M. or any CSL plasma employee about J.M.'s case.
9. On December 17, 2024, Grievant asked Ms. Bragg to her office regarding a guardianship order of a previously-terminated parent who is now the current guardian of a child.2 When Ms. Bragg advised that Grievant would be the assigned worker, Grievant became angry and yelled at Ms. Bragg.
10. Brandice Bragg recalls the loud argument occurred after lunch on December 17, 2024, when Grievant asked Ms. Bragg to her office regarding a guardianship order. Ms. Bragg specifically recalls the incident because she broke her tooth at lunch, making it a memorable day. R. Ex. 1; testimony of Bragg.
11. Grievant recalls that an argument in the hallway with Brandice Bragg occurred before her 8:30 start time, as she walked to her office. She asserts that she was stopped by Ms. Bragg before she was “on the clock,” regarding a conflict of interest referral due to Grievant’s personal relationship. Testimony of Grievant.

2 This incident was also referenced as a dual referral, involving two individuals within the same family.

12. Though her office was about 20-25 feet away, Alexis Barton heard Grievant
13. Grievant did not dispute that a loud argument with Brandice Bragg did
14. On December 17, 2024, Mary Alexis Pence (formerly Keating) overheard a
15. 15. On February 11, 2025, Deputy Commissioner Laurea Ellis and Supervisor Chidester conducted a predetermination conference with Grievant. Grievant was informed that disciplinary action was being considered. During that meeting, Grievant had an opportunity to explain the circumstances involved. Grievant denied the disclosure of confidential information, admitted saying “Oh well” in the conversation with Ms. Bragg, deflected responsibility about the yelling at coworkers, and complained regarding the lapse of time between the incidents and the conference. R. Ex. 1; testimony of Ellis.

16. Respondent attributes the delays between the incidents and the predetermination conference to holidays, annual leave, staffing issues, transition to the Office of Shared Administration, and the miscommunication between Mr. Chidester and Ms. Elkins. Due to the allegations regarding Shannon Elkins, Deputy Commissioner Ellis, who covers 33 counties in three districts, was more intricately involved which further complicated the process.
17. On March 17, 2025, Deputy Commissioner Ellis suspended Grievant for five days for violation of Respondent's Employee Conduct Policy, OSA-PM 2018, and West Virginia Code § 49-5-101. The suspension letter states, "On December 3, 2024, a complaint was received by Rachel Deem, Child Protective Services Supervisor, indicating you had shared confidential information with a family member of a CPS case whom you are friends with and you also shared confidential information regarding the same case in a public business. On December 19, 2024, you were overheard disclosing the name of a reporter to a magistrate.3 When this was discussed with you, you did not believe what you did was wrong and responded, 'Oh well.' This is in violation of OSA-PM 2108, Employee Conduct Policy, which provides that all employees are expected to 'Maintain the confidentiality of all business record contents.' This also violates WV State Code §49-5-101, which provides, in part, that all records and information concerning a child ... 'are confidential and shall not be released or disclosed to anyone, including any federal or state agency.'" R. Ex. 1.

3All evidence presented at the level three hearing indicated that Grievant's inadvertent call occurred on December 3, 2024, rather than December 19. R. Ex. 1, 4; testimony of Bragg and Elkins.

18. Further, the suspension letter states, “On December 17, 2024, you called a supervisor over to your office and began a discussion regarding CPS cases. ... You expressed reluctance to receive this referral by yelling in such a loud volume that multiple staff heard you. This ... was described as you speaking loud, disrespectful, and rude towards the supervisor.” On the same day, Grievant made derogatory remarks regarding Shannon Elkins. “This is in violation of OSA-PM 2108, Employee Conduct Policy, which provides that employees are expected to conduct themselves professionally in the presence of residents, patients, clients, fellow employees, and the public, and prohibits employees from disrupting the normal operations of the Agency; harassing, intimidating, or physically abusing residents, patients, clients, or fellow employees; and engaging in indirect subordination which is defined as ‘the manifestation of disrespect toward supervisory personnel which undermines their status and authority.’” R. Ex. 1.
19. Regarding progressive discipline, Ms. Ellis previously “coached and coached” Grievant, so it was necessary for the discipline “to go higher.” She determined that Grievant’s actions in breaking the law “by disclosing confidential information to unauthorized people is serious enough to warrant skipping steps.” R. Ex. 1; testimony of Ellis.
20. Grievant has received multiple trainings regarding privacy and the duty to maintain confidentiality of all records and information concerning all children and families which they serve. Testimony of Bragg.
21. Grievant failed to observe Respondent's standard of conduct and expectations stated in the Office of Shared Administration Employee Conduct Policy, OSA-PM 2108. Specifically, Grievant violated the following expectations: 2.2.1 (comply

with all relevant federal, state, and local laws), 2.2.5 (maintain the confidentiality of all business record contents), 2.2.7 (conduct themselves professionally in the presence of ... fellow employees, and the public), 2.2.12 (be ethical, alert, polite, sober, and attentive to the responsibilities associated with their jobs), 2.3.2 (disrupting the normal operations of the Agency), 2.3.7 (engaging in direct or indirect insubordination), 2.3.9 (making unwanted and inappropriate verbal or physical contact), 2.4.5 (Employees whose behavior creates a conflict of interest with their employment are subject to discipline, up to and including dismissal.), and 2.6.4. (Employees are expected to keep all information related to an investigation or hearing in strictest confidence.). R. Ex. 1, 6.

Discussion

The burden of proof in disciplinary matters rests with the employer to prove by a preponderance of the evidence that the disciplinary action taken was justified. W.VA. CODE ST. R. § 156-1-3 (2018). "The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.

Grievant asserts that she was suspended without good cause. Grievant admits some and denies some allegations but claims that suspension was not otherwise justified due to discrimination, favoritism, harassment, and a hostile work environment. Respondent asserts suspension was justified because Grievant failed to meet a reasonable standard of conduct by violating confidentiality law, policy, and engaging in insubordinate behavior.

In situations where “the existence or nonexistence of certain material facts hinges on witness credibility, detailed findings of fact and explicit credibility determinations are required.” Jones v. W. Va. Dep’t of Health & Human Res., Docket No. 96-HHR-371 (Oct. 30, 1996); Young v. Div. of Natural Res., Docket No. 2009-0540-DOC (Nov. 13, 2009); See also Clarke v. W. Va. Bd. of Regents, 166 W. Va. 702, 279 S.E.2d 169 (1981). In assessing the credibility of witnesses, some factors to be considered ... are the witness's: 1) demeanor; 2) opportunity or capacity to perceive and communicate; 3) reputation for honesty; 4) attitude toward the action; and 5) admission of untruthfulness. HAROLD J. ASHER & WILLIAM C. JACKSON, REPRESENTING THE AGENCY BEFORE THE UNITED STATES MERIT SYSTEMS PROTECTION BOARD 152-153 (1984). Additionally, the ALJ should consider: 1) the presence or absence of bias, interest, or motive; 2) the consistency of prior statements; 3) the existence or nonexistence of any fact testified to by the witness; and 4) the plausibility of the witness's information. Id., Burchell v. Bd. of Trustees, Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).

Supervisor Brandice Bragg was credible. Her demeanor was professional with appropriate respect for the proceedings. She was certain with clear recall of the interactions with Grievant. She and Grievant varied on the reason and time of the hallway argument, but Ms. Bragg was confident in her testimony, which was corroborated by Alexis Barton. She was very familiar with the processes and expectations of Grievant's position. While there was obvious tension between Grievant and Ms. Bragg, even Grievant commended her knowledge and leadership. Ms. Bragg's testimony regarding Grievant's pocket dial was further corroborated by Shannon Elkins. Ms. Bragg displayed nothing to indicate she was not truthful.

Alexis Barton’s demeanor was appropriate. She was calm and forthcoming in her testimony. Her description of the hallway argument was simply factual and showed no bias. Ms. Barton was credible. Mary Alexis Pence, formerly Keating, testified credibly with clear memory. She was calm and professional. Ms. Pence and Grievant were former classmates, yet there was tension between them. Nonetheless, her testimony was consistent with her prior statement regarding Grievant's derogatory remarks about Shannon Elkins. Although Grievant asserted that Ms. Pence's testimony was dishonest due to alleged past impropriety, Grievant failed to present evidence that Ms. Pence's testimony was dishonest, and the undersigned finds Ms. Pence's testimony to be credible. Social Services Manager Shannon Elkins was credible. Her demeanor was professional with no evidence of prejudice against Grievant. She was knowledgeable and kind, displaying no bias. Her testimony was corroborated by Ms. Bragg and consistent with her prior statements. Deputy Commissioner Laurea Ellis was also credible. She displayed compassion and concern for Grievant's success. There was no evidence of bias or prejudice against Grievant. Ms. Ellis was professional and had clear recall. Grievant's testimony was inconsistent. Grievant has motive to be untruthful to support her continued employment. She has obvious bias as she seeks removal of the suspension from her personnel file. Simply stated, many of Grievant's statements were not plausible. While attempting to convince Ms. Bragg that she was mistaken about the topic of the documented argument, Grievant effectively admitted at least two arguments with Brandice Bragg. Grievant proclaimed her respect for each supervisor and their

capabilities “for the record” but explained her need for explanation from supervisors is misinterpreted as “insubordination.” She said that she is a “loud talker” to make clear that she was not yelling as Ms. Bragg and Ms. Barton claimed; however, neither Ms. Bragg nor Ms. Ellis consider Grievant to be a loud person. Grievant expressed that she would not make such comments in reference to Shannon Elkins; yet Grievant wanted kudos from Ms. Ellis for her apology to Shannon Elkins and taking responsibility for her actions. While it is possible that multiple people could lie about some issues, without evidence impacting on the credibility of these witnesses, the evidence must be weighed against Grievant’s credibility.

Respondent asserts it was justified in suspending Grievant for her multiple instances of misconduct. First, Respondent asserts that Grievant failed to comply with policy and law regarding confidentiality of case information. CPS workers are extensively trained on standards of confidentiality. Office of Shared Administration Employee Conduct Policy Memorandum 2108 clearly requires employees to comply with all relevant federal, state, and local laws and maintain the confidentiality of all case information. West Virginia Code § 49-5-101 (a) states that, “all records and information concerning a child or juvenile which are maintained by...the Department of Human Services...are confidential and may not be released or disclosed to anyone, including any federal or state agency.” Explicitly, the law mandates that records disclosing the identity of a person making a complaint of child abuse or neglect are subject to the highest confidentiality. W.VA. CODE § 49-5-101 (2024). The only permissible disclosure of the reporter’s identity is made “to the Foster Care Ombudsman or his or her designee acting in the course of their official duties related to a near fatality or fatality of a child within the foster care system.”

Id. When Grievant inadvertently called Brandice Bragg while at the Magistrate Court, Ms. Bragg heard Magistrate Kuhl ask and Grievant provide the name and employer of the mandatory reporter. Immediately, Ms. Bragg excitedly asked Ms. Elkins if she had heard. Though she did not discern the name, Ms. Elkins corroborated Ms. Bragg's surprise and corresponding statements. As a supervisor and seasoned CPS worker, Ms. Bragg's shock and immediate reaction was genuine, having no time to consciously fabricate a story.

Grievant denies that Magistrate Kuhl asked for or that she gave the name of the reporter. In support, Grievant offered an email from Magistrate Kuhl in which he stated that he did not recall asking Grievant for the name of the reporter or Grievant providing the name of the reporter. Unfortunately, Grievant was confident the singular email from Magistrate Kuhl was sufficient proof that she did not disclose the name of the reporter. Assumedly, for that reason, Grievant did not subpoena Magistrate Kuhl to appear as her witness and be subject to cross-examination.

Magistrate Kuhl's email is hearsay. "Hearsay includes any statement made outside the present proceeding which is offered as evidence of the truth of the matter asserted." BLACK'S LAW DICTIONARY 722 (6th ed. 1990). "Hearsay evidence is generally admissible in grievance proceedings. The issue is one of weight rather than admissibility. This reflects a legislative recognition that the parties in grievance proceedings, particularly grievants and their representatives, are generally not lawyers and are not familiar with the technical rules of evidence or with formal legal proceedings." Gunnells v. Logan County Bd. of Educ., Docket No. 97-23-055 (Dec. 9, 1997). The Grievance Board has applied the following factors in assessing hearsay testimony: 1) the availability of persons with

first-hand knowledge to testify at the hearings; 2) whether the declarants' out of court statements were in writing, signed, or in affidavit form; 3) the agency's explanation for failing to obtain signed or sworn statements; 4) whether the declarants were disinterested witnesses to the events, and whether the statements were routinely made; 5) the consistency of the declarants' accounts with other information, other witnesses, other statements, and the statement itself; 6) whether collaboration for these statements can be found in agency records; 7) the absence of contradictory evidence; and 8) the credibility of the declarants when they made their statements. Id.; Sinsel v. Harrison County Bd. of Educ., Docket No. 96-17-219 (Dec. 31, 1996); Seddon v. W. Va. Dep't of Health/Kanawha-Charleston Health Dep't, Docket No. 90-H-115 (June 8, 1990).

The email from Magistrate Kuhl was created four months after the incident at the request of Grievant. Furthermore, it would be against his interest to admit. In weighing the evidence, the veracity of Ms. Bragg's immediate reaction trumps the trustworthiness of the email sent more than four months later. The testimony of two witnesses, with greater credibility than Grievant, supports Respondent's proposition that Grievant violated West Virginia Code § 49-5-101. Further, Grievant admitted the statement of "Oh well." She claims that was simply her way of ending the conversation to avoid further argument. Ms. Bragg interpreted her tone and comment to mean "I don't care." Combined with Grievant's other responses on the telephone with Ms. Bragg, this comment further supports the likelihood of Grievant's disclosure. Truly, Grievant's disclosure of the reporter to Magistrate Kuhl seems more likely than not. Thus, Respondent has proven by a preponderance that Grievant disclosed the name of the reporter of child abuse; thereby violating West Virginia Code § 49-5-101 and the employee code of conduct. That

day's events were indeed a severe lapse of judgment, serious enough to warrant skipping steps in progressive discipline alone.

Second, Respondent asserts that Grievant has been insubordinate and failed to comply with the employee conduct policy. “[F]or there to be ‘insubordination,’ the following must be present: (a) an employee must refuse to obey an order (or rule or regulation); (b) the refusal must be wilful; and (c) the order (or rule or regulation) must be reasonable and valid.” Butts v. Higher Educ. Interim Governing Bd., 212 W. Va. 209, 212, 569 S.E.2d 456, 459 (2002) (per curiam). The Grievance Board has further recognized that insubordination “encompasses more than an explicit order and subsequent refusal to carry it out. It may also involve a flagrant or willful disregard for implied directions of an employer.” Sexton v. Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988), aff’d, Sexton v. Marshall Univ., 182 W. Va. 294, 387 S.E.2d 529 (1989).

“Employees are expected to respect authority and do not have the unfettered discretion to disobey or ignore clear instructions.” Reynolds v. Kanawha-Charleston Health Dep’t, Docket No. 90-H-128 (Aug. 8, 1990). As a rule, few defenses are available to the employee who disobeys a lawful directive; the prudent employee complies first and expresses his disagreement later. See Day v. Morgan Co. Health Dep’t, Docket No. 07-CHD-121 (Dec. 14, 2007). Graham v. Wetzel County Bd. of Educ., Docket No. 2013-0014-WetED (Feb. 15, 2013), aff’d, Graham v. Bd. of Educ. of Wetzel City., No. 13-0975, (W. Va. Sup. Ct., Apr. 28, 2014) (memorandum decision). Rightfully, Respondent expects Grievant to respect supervisors’ authority, directives, and the law.

It is undisputed that Grievant had a disagreement with Brandice Bragg. In the level three hearing, the testimony of Ms. Bragg and Grievant conflict regarding the time and

subject of the argument. Although Respondent presented only one argument, the testimony indicates there were likely two instances of Grievant's misconduct in an argument with Ms. Bragg. Respondent presented a loud and disruptive incident corroborated by Ms. Bragg and Ms. Barton, while Grievant also presented a seemingly separate incident with vivid memory of an argument about a conflict referral, which occurred early one morning before she had reached her desk to start the workday. Ms. Bragg described an argument concerning a terminated parent, who was a current guardian, which occurred after lunch while standing in the Grievant's doorway. While Grievant focused on the topic and timing of her misconduct as a method of defense, she did not disprove nor deny that a loud argument with Ms. Bragg occurred. Ultimately, neither the argument topic nor time of day diminish the preponderant evidence that Grievant engaged in a disruptive and disrespectful argument with a supervisor. Respondent proved that Grievant failed to act professionally or refrain from insubordinate behavior, thereby violating the employee code of conduct.

Thirdly, Respondent asserts that Grievant was indirectly insubordinate and again failed to comply with the employee conduct policy when, on the same day as the argument with Ms. Bragg, Grievant disrupted the office with derogatory remarks about Social Service Manager, Shannon Elkins. At the end of the day, Mary Alexis Pence clearly heard Grievant making unkind and disrespectful statements about Ms. Elkins. In fact, Ms. Pence was contemporaneously typing the email of the incident while listening to Grievant. That fact contributes to its accuracy and reliability. Furthermore, Grievant and Ms. Ellis agreed, on a prior day and in the level three hearing, that the comment was something Grievant would say. During cross-examination, Grievant confirmed that Ms. Ellis was

aware that she had apologized to Ms. Elkins and taken responsibility for her actions. Based on all evidence presented, Respondent has proven by a preponderance of the evidence that Grievant made the derogatory remarks, which violates the employee code of conduct, which requires being professional (2.2.7), being ethical and polite (2.2.12), and refraining from indirect subordination (2.3.7.b).

Lastly, Respondent asserts that Grievant breached confidentiality by disclosing details of an active CPS case. Respondent mother, J.M., alleged that Grievant discussed intimate details of her case with J.M.'s father, S.M., while at CSL plasma donation center.4 J.M. conveyed the information by telephone to Rachel Deem on December 3, 2024. Rachel Deem documented the conversation and sent the email to Shannon Elkins immediately thereafter. However, Respondent did not present the testimony of J.M., S.M., or Rachel Deem at the level three hearing. Respondent presented Ms. Elkins's testimony and documented conversation of August 5, 2025, with a former CSL employee regarding Grievant's alleged behavior at CSL. This conversation provided no evidence related to J.M.'s allegations. Moreover, it occurred months after Respondent suspended Grievant and, therefore, will not be considered in this decision. Respondent did not prove Grievant's breach of confidentiality regarding J.M.'s case.5

Therefore, Respondent proved two of the three charges against Grievant by a preponderance of the evidence. Respondent proved that Grievant violated both law and

4 In the level three hearing, Grievant admitted that she spoke to J.M.'s father, S.M., in her diligent search for placement of J.M.'s children, but Grievant denied any additional statements about J.M.'s case.

5 Shannon Elkins was advised of a possible breach regarding respondent father, S.L. This was not considered by Respondent prior to Grievant's suspension and will not be addressed.

policy and was insubordinate in three significant instances of misconduct. This misconduct occurred despite Grievant's experience, training, and prior coaching. In the past, Deputy Commissioner Ellis had received complaints regarding Grievant from other supervisors, prosecuting attorneys, and the court staff. Deputy Commissioner Ellis testified that Grievant has been “coached and coached to the point where it needed to go higher.”6 Respondent’s previous attempts to correct Grievant’s behavior did not bring about the desired changes. Given the prior unsuccessful coaching and training and the seriousness of the misconduct, the progression of discipline from coaching directly to suspension was reasonable. Respondent has proven Grievant’s five-day suspension for misconduct, insubordination, and violation of West Virginia Code § 49-5-101 was justified.

In her defense, Grievant believes that she has been harassed and works in a hostile work environment. “Harassment’ means repeated or continual disturbance, irritation or annoyance of an employee that is contrary to the behavior expected by law, policy and profession.” W. VA. CODE § 6C-2-2(I) (2024). “What constitutes harassment varies based upon the factual situation in each individual grievance.” Sellers v. Wetzel County Bd. of Educ., Docket No. 97-52-183 (Sept. 30, 1997). This Board has generally followed the analysis of the federal and state courts in determining what constitutes a hostile work environment. Beverly v. Div. of Highways, Docket No. 2014-0461-DOT (Aug. 19, 2014), aff'd, Kanawha Cnty. Cir. Ct. Docket No. 14-AA-95 (Mar. 31, 2015); Vance v.

6 Grievant did not grieve the prior coaching sessions. “If an employee does not grieve specific disciplinary incidents, he cannot place the merits of such discipline in issue in a subsequent grievance proceeding. Jones v. W. Va. Dept. of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); See Stamper v. W. Va. Dept. of Health & Human Resources, Docket No. 95-HHR-144 (Mar. 20, 1996); Womack v. Dept. of Admin., Docket No. 93-ADMN-430 (Mar. 30, 1994).

Reg'l Jail & Corr. Facility Auth., Docket No. 2011-1705-MAPS (Feb. 22, 2012), aff'd, Kanawha Cnty. Cir. Ct. Docket No. 12-AA-32 (Jul. 5, 2012); Rogers v. Reg'l Jail & Corr. Facility Auth., Docket No. 2009-0685-MAPS (Apr. 23, 2009), aff'd, Kanawha Cnty. Cir. Ct. Docket No. 09-AA-92 (Dec. 8, 2010). The point at which a work environment becomes hostile or abusive does not depend on any “mathematically precise test.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Instead, “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, ‘considering all the circumstances.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (citing Harris, 510 U.S. at 23). These circumstances “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” but “no single factor is required.” Harris, 510 U.S. at 23. “To create a hostile work environment, inappropriate conduct must be sufficiently severe or pervasive to alter the conditions of an employee’s employment. See Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995).” Napier v. Stratton, 204 W. Va. 415, 513 S.E.2d 463, 467 (1998) (per curiam). “As a general rule ‘more than a few isolated incidents are required’ to meet the pervasive requirement of proof for a hostile work environment case. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir. 1997).” Fairmont Specialty Servs. v. W. Va. Human Rights Comm’n, 206 W. Va. 86, 96, 522 S.E.2d 180, 190 n.9 (1999).

Grievant's attempts to prove harassment or disparate treatment elicited unfavorable testimony. Grievant asked Ms. Ellis if Grievant had consulted her regarding bullying in the office. In reply, Ms. Ellis stated that Grievant has claimed bullying by

various people in the office and “I’ve had situations that I’m aware of, that I’ve addressed.” However, the only specific example given by Ms. Ellis was an instance of Grievant bullying a case aide. On direct examination, Ms. Pence testified that Grievant “brings a sense of hostility and tension to the office” and that she has witnessed Grievant inappropriately lash out at coworkers at least five times since she came to their office in December 2019. On cross examination, Grievant asked her former classmate, “Was I ever rude to you?” Ms. Pence replied, “Jenny, your baseline is rude.” Then, Grievant immediately exhibited the reactionary response described by Ms. Ellis and retorted, “This is discriminatory” and moved that Ms. Pence’s testimony be disregarded because she is dishonest. For these reasons, Grievant failed to prove harassment or hostile work environment.

Grievant asserts that Respondent has discriminated against her and shown favoritism to certain employees. She claims that she was treated differently than other employees who have committed similar offenses. Discrimination for purposes of the grievance process has a very specific definition. “‘Discrimination’ means any differences in the treatment of similarly situated employees, unless the differences are related to the actual job responsibilities of the employees or are agreed to in writing by the employees.’” W. VA. CODE § 6C-2-2(d) (2024). Without providing names or details, Laurea Ellis testified that other individuals have recently received five-day suspensions for less than Grievant’s offenses. Grievant attempted to discredit Ms. Pence due to a prior “breach of confidentiality.” However, the circumstances differ from Grievant’s breach. Nevertheless, Ms. Ellis confirmed that Ms. Pence was disciplined for her impropriety. Grievant provided no evidence to prove discrimination.

Grievant further asserted that she did not receive the same assistance from Brandice Bragg as Ms. Pence and Hali Buffington, who were also supervised by Ms. Bragg. “Favoritism’ means unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of a similarly situated employee unless the treatment is related to the actual job responsibilities of the employee or is agreed to in writing by the employee.” W. VA. CODE § 6C-2-2(h) (2024). Specifically, Grievant referred to this favoritism as the “circle of three” being Brandice Bragg, Mary Alexis Pence, and Hali Buffington. With Ms. Pence, Grievant discussed the availability of Ms. Bragg and Ms. Pence to accompany Grievant to a home visit. Grievant admitted that both had gone with her on occasion. Further, Grievant did not present evidence that she needed accompaniment and was refused. Rather, she discussed how they accompanied each other. Nothing unfair was revealed. Significantly, the instances referenced by Grievant occurred while supervised by Brandice Bragg, prior to December 2024. Due to the conflicts with Ms. Bragg, Grievant requested and was moved under the supervision of Dale Chidester in September 2024. Grievant made no allegations of discrimination or favoritism regarding her current supervisor, Dale Chidester. For these reasons, Grievant failed to prove discrimination or favoritism by Respondent.

Because Respondent skipped a step in progressive discipline, Grievant asserts that the five-day suspension was disproportionate for her offenses. "Mitigation of the punishment imposed by an employer is extraordinary relief, and is granted only when there is a showing that a particular disciplinary measure is so clearly disproportionate to the employee's offense that it indicates an abuse of discretion. Considerable deference is afforded the employer's assessment of the seriousness of the employee's conduct and"

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.

Finally, Grievant proposes that the delay between the infractions and the disciplinary process was unreasonable. Respondent presented multiple reasons for the acceptable delay. The incidents leading to discipline occurred in December which is riddled with forced use of annual leave, holiday annual leave, and the resulting lack of office coverage. That period was immediately followed by Respondent's transition to the Office of Shared Administration. Furthermore, much delay may be attributed to Grievant. Due to her disparaging remarks of Ms. Elkins, the matter was handled by Ms. Ellis. The Deputy Commissioner covers 3 districts among 33 counties. Therefore, the process of writing, reviewing, and proofing was juggled amidst the above obstacles. To put it another way, there was no inordinate delay or resulting prejudice to Grievant. In summary, the documentation and testimony provided by Respondent at the level three hearing provided credible, consistent, and ultimately preponderant evidence that Grievant was given a five-day suspension due to violation of law, misconduct, and insubordination. Grievant did not present sufficient evidence to rebut that conclusion. The following Conclusions of Law support the decision reached. Conclusions of Law 1. The burden of proof in disciplinary matters rests with the employer to prove by a preponderance of the evidence that the disciplinary action taken was justified. W.VA. CODE ST. R. § 156-1-3 (2018). "The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.

2. In situations where “the existence or nonexistence of certain material facts hinges on witness credibility, detailed findings of fact and explicit credibility determinations are required.” Jones v. W. Va. Dep’t of Health & Human Res., Docket No. 96-HHR-371 (Oct. 30, 1996); Young v. Div. of Natural Res., Docket No. 2009-0540-DOC (Nov. 13, 2009); See also Clarke v. W. Va. Bd. of Regents, 166 W. Va. 702, 279 S.E.2d 169 (1981). In assessing the credibility of witnesses, some factors to be considered ... are the witness's: 1) demeanor; 2) opportunity or capacity to perceive and communicate; 3) reputation for honesty; 4) attitude toward the action; and 5) admission of untruthfulness. HAROLD J. ASHER & WILLIAM C. JACKSON, REPRESENTING THE AGENCY BEFORE THE UNITED STATES MERIT SYSTEMS PROTECTION BOARD 152-153 (1984). Additionally, the ALJ should consider: 1) the presence or absence of bias, interest, or motive; 2) the consistency of prior statements; 3) the existence or nonexistence of any fact testified to by the witness; and 4) the plausibility of the witness's information. Id., Burchell v. Bd. of Trustees, Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
3. “If an employee does not grieve specific disciplinary incidents, he cannot place the merits of such discipline in issue in a subsequent grievance proceeding. Jones v. W. Va. Dept. of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); See Stamper v. W. Va. Dept. of Health & Human Resources, Docket No. 95-HHR-144 (Mar. 20, 1996); Womack v. Dept. of Admin., Docket No. 93-ADMN-430 (Mar. 30, 1994).
4. West Virginia Code § 49-5-101 (a) states that, “all records and information concerning a child or juvenile which are maintained by...the Department of Human Services...are confidential and may not be released or disclosed to anyone, including any

• federal or state agency." Explicitly, the law mandates that records disclosing the identity of a person making a complaint of child abuse or neglect are subject to the highest confidentiality. W. VA. CODE § 49-5-101 (2024). The only permissible disclosure of the reporter's identity is made "to the Foster Care Ombudsman or his or her designee acting in the course of their official duties related to a near fatality or fatality of a child within the foster care system." Id.
• “Hearsay includes any statement made outside the present proceeding which is offered as evidence of the truth of the matter asserted.” BLACK’S LAW DICTIONARY 722 (6th ed. 1990). “Hearsay evidence is generally admissible in grievance proceedings. The issue is one of weight rather than admissibility. This reflects a legislative recognition that the parties in grievance proceedings, particularly grievants and their representatives, are generally not lawyers and are not familiar with the technical rules of evidence or with formal legal proceedings.” Gunnells v. Logan County Bd. of Educ., Docket No. 97-23-055 (Dec. 9, 1997). The Grievance Board has applied the following factors in assessing hearsay testimony: 1) the availability of persons with first-hand knowledge to testify at the hearings; 2) whether the declarants' out of court statements were in writing, signed, or in affidavit form; 3) the agency's explanation for failing to obtain signed or sworn statements; 4) whether the declarants were disinterested witnesses to the events, and whether the statements were routinely made; 5) the consistency of the declarants' accounts with other information, other witnesses, other statements, and the statement itself; 6) whether collaboration for these statements can be found in agency records; 7) the absence of contradictory evidence; and 8) the credibility of the declarants when they made their statements. Id.; Sinsel v. Harrison County Bd. of Educ., Docket No. 96-17-219 (Dec. 31,

1996); Seddon v. W. Va. Dep't of Health/Kanawha-Charleston Health Dep't, Docket No. 90-H-115 (June 8, 1990).

6. “[F]or there to be ‘insubordination,’ the following must be present: (a) an employee must refuse to obey an order (or rule or regulation); (b) the refusal must be wilful; and (c) the order (or rule or regulation) must be reasonable and valid.” Butts v. Higher Educ. Interim Governing Bd., 212 W. Va. 209, 212, 569 S.E.2d 456, 459 (2002) (per curiam). The Grievance Board has further recognized that insubordination “encompasses more than an explicit order and subsequent refusal to carry it out. It may also involve a flagrant or willful disregard for implied directions of an employer.” Sexton v. Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988), aff’d, Sexton v. Marshall Univ., 182 W. Va. 294, 387 S.E.2d 529 (1989).
7. “Employees are expected to respect authority and do not have the unfettered discretion to disobey or ignore clear instructions.” Reynolds v. Kanawha-Charleston Health Dep’t, Docket No. 90-H-128 (Aug. 8, 1990). As a rule, few defenses are available to the employee who disobeys a lawful directive; the prudent employee complies first and expresses his disagreement later. See Day v. Morgan Co. Health Dep’t, Docket No. 07-CHD-121 (Dec. 14, 2007).” Graham v. Wetzel County Bd. of Educ., Docket No. 2013-0014-WetED (Feb. 15, 2013), aff’d, Graham v. Bd. of Educ. of Wetzel City., No. 13-0975, (W. Va. Sup. Ct., Apr. 28, 2014) (memorandum decision).
8. “Harassment” means repeated or continual disturbance, irritation or annoyance of an employee that is contrary to the behavior expected by law, policy and profession.” W. VA. CODE § 6C-2-2(I) (2024). “What constitutes harassment varies based

• upon the factual situation in each individual grievance." Sellers v. Wetzel County Bd. of Educ., Docket No. 97-52-183 (Sept. 30, 1997).
• This Board has generally followed the analysis of the federal and state courts in determining what constitutes a hostile work environment. Beverly v. Div. of Highways, Docket No. 2014-0461-DOT (Aug. 19, 2014), aff'd, Kanawha Cnty. Cir. Ct. Docket No. 14-AA-95 (Mar. 31, 2015); Vance v. Reg'l Jail & Corr. Facility Auth., Docket No. 2011-1705-MAPS (Feb. 22, 2012), aff'd, Kanawha Cnty. Cir. Ct. Docket No. 12-AA-32 (Jul. 5, 2012); Rogers v. Reg'l Jail & Corr. Facility Auth., Docket No. 2009-0685-MAPS (Apr. 23, 2009), aff'd, Kanawha Cnty. Cir. Ct. Docket No. 09-AA-92 (Dec. 8, 2010). The point at which a work environment becomes hostile or abusive does not depend on any “mathematically precise test.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Instead, “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, ‘considering all the circumstances.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (citing Harris, 510 U.S. at 23). These circumstances “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” but “no single factor is required.” Harris, 510 U.S. at 23. “To create a hostile work environment, inappropriate conduct must be sufficiently severe or pervasive to alter the conditions of an employee’s employment. See Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995).” Napier v. Stratton, 204 W. Va. 415, 513 S.E.2d 463, 467 (1998) (per curiam). “As a general rule ‘more than a few isolated incidents are required’ to meet the pervasive requirement of proof for a hostile work environment case. Kimzey v. Wal-Mart Stores,

Inc., 107 F.3d 568, 573 (8th Cir. 1997)." Fairmont Specialty Servs. v. W. Va. Human Rights Comm'n, 206 W. Va. 86, 96, 522 S.E.2d 180, 190 n.9 (1999).

10. “‘Discrimination’ means any differences in the treatment of similarly situated employees, unless the differences are related to the actual job responsibilities of the employees or are agreed to in writing by the employees.” W. VA. CODE § 6C-2-2(d)(2024).
11. “Favoritism’ means unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of a similarly situated employee unless the treatment is related to the actual job responsibilities of the employee or is agreed to in writing by the employee.” W. VA. CODE § 6C-2-2(h) (2024).
12. "Mitigation of the punishment imposed by an employer is extraordinary relief, and is granted only when there is a showing that a particular disciplinary measure is so clearly disproportionate to the employee's offense that it indicates an abuse of discretion. Considerable deference is afforded the employer's assessment of the seriousness of the employee's conduct and the prospects for rehabilitation." Overbee v. Dept 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).

13. “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).
14. Grievant's misconduct hinders the agency from meeting its objectives. She had a serious lapse of judgment which reflects discredit on the agency and creates suspicion. Further, Grievant did not meet a reasonable standard of conduct as an employee of the Bureau for Social Services.
15. Respondent proved by a preponderance of the evidence that Grievant's five-day suspension for misconduct was justified based upon violation of West Virginia Code § 49-5-101, violation of policy, and insubordination.
16. Grievant failed to prove the suspension was improper due to harassment, hostile work environment. discrimination. or favoritism.
17. Grievant failed to prove mitigation of the punishment was warranted.
18. Further, there was no unreasonable delay in applying discipline.

Accordingly, the grievance is DENIED.

“The decision of the administrative law judge is final upon the parties and is enforceable in the circuit court situated in the judicial district in which the grievant is employed.” W. VA. CODE § 6C-2-5(a) (2024). “An appeal of the decision of the

administrative law judge shall be to the Intermediate Court of Appeals in accordance with §51-11-4(b)(4) of this code and the Rules of Appellate Procedure." W. VA. CODE § 6C-2-5(b) (2024). Neither the West Virginia Public Employees Grievance Board nor any of its Administrative Law Judges is a party to such an appeal and should not be named as a party to the appeal. However, the appealing party must serve a copy of the petition upon the Grievance Board by registered or certified mail. W. VA. CODE § 29A-5-4(b) (2024). DATE: November 10, 2025

DATE: November 10, 2025

Kimberly D. Bentley Administrative Law Judge