Amy L. Hymes v. West Virginia Department of Human Services

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
AMY L. HYMES,
August 6, 2025
Grievant Below, Petitioner
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
v.) No. 24-ICA-327 (Grievance Bd. Case No. 2023-0611-DHHR) OF WEST VIRGINIA

WEST VIRGINIA DEPARTMENT
OF HUMAN SERVICES,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Amy L. Hymes appeals the July 24, 2024, decision from the West
Virginia Public Employees Grievance Board’s (“Grievance Board”) administrative law
judge (“ALJ”). Respondent West Virginia Department of Human Services (the
“Department”) filed a response.1 Ms. Hymes filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Grievance Board’s decision is
appropriate under Rule 21 of the Rules of Appellate Procedure.

At the time of her termination, Ms. Hymes was Deputy Commissioner of the Bureau
for Children and Families for Field Operations in the northern part of the State of West
Virginia. Ms. Hymes was terminated by the Department for creating a hostile work
environment following an investigation spurred by complaints against her by subordinate
Jenny Chapman.

One of the complaints was contained in an email from Ms. Chapman, dated October
19, 2022, that states “[Ms. Hymes] said when I got under [Commissioner Jeffrey Pack] for
the internship (that she set up), that I should ‘take one for the team’ and try to get you
[Commissioner Pack] to sexually harass me so ‘they can get rid of him.’” The email notes
that this comment was made three or four more times, which made Ms. Chapman believe
Ms. Hymes to be serious. The email states that Ms. Chapman did not come forward with
the allegation sooner because she feared retaliation from Ms. Hymes. The email also
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Ms. Hymes is represented by Walt Auvil, Esq., and Kirk Auvil, Esq. The
Department is represented by Attorney General John B. McCuskey, Esq., and Deputy
Attorney General Steven R. Compton, Esq.
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complained that Ms. Chapman, a licensed social worker, was made to wash Ms. Hymes’
state issued vehicle and get the oil changed.

On October 20, 2022, the Department issued a letter suspending Ms. Hymes without
pay pending an investigation into potential violations of Department policy including
hostile work environment and employee conduct.

Eighteen people were interviewed during the investigation, including Ms. Hymes
twice. The investigation resulted in a January 2023 investigative report. Notably, the report
states that Ms. Hymes indicated that Jenny Chapman told her that she thought
Commissioner Pack liked her, so Ms. Hymes stated, “oh, then flirt with him and take one
for the team.” Though, Ms. Hymes indicated that she did not make such a statement for the
purpose of getting Commissioner Pack fired from his employment.

Based on the investigation, the Department substantiated the allegation that Ms.
Hymes told Jenny Chapman to “take one for the team”; substantiated the allegation that
Ms. Hymes asks employees to perform menial personal tasks not within their job
description; substantiated the allegation that Ms. Hymes communicates inappropriately;
substantiated the allegation that Ms. Hymes retaliates against employees; and substantiated
that Ms. Hymes does not provide clear directions to subordinates. Based on the
investigation, the Department did not substantiate that Ms. Hymes pre-selects employees
for positions and did not substantiate that Ms. Hymes has unreasonable expectations for
employees. The report concluded that Ms. Hymes’ conduct violated Department policy
memorandum 2108, relating to employee conduct, and Department policy memorandum
2123, relating to hostile work environment.

A pre-determination conference occurred on January 19, 2023. Following the pre-
determination conference, on January 20, 2023, the Department sent Ms. Hymes a letter
terminating her employment for creating a hostile work environment as evidenced by the
results of the investigation.

On February 2, 2023, the Grievance Board received Ms. Hymes’ grievance form,
which stated as the reason for the grievance “Wrongful Termination: Internal Investigation
Process is bias [sic] and only supports accuser.” Ms. Hymes sought reinstatement as the
relief. Ms. Hymes filed directly to level three of the grievance process.

A level three hearing was held before Administrative Law Judge Joshua S. Fraenkel
for five days on January 29, January 30, March 25, March 29, and April 30 of 2024.2

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Due to the extensive evidence adduced before the ALJ, the Court has included a
synopsis of what it finds to be the most salient evidence presented during the hearings.
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The Department first called Mala Bumgardner, who was the administrative
secretary to Ms. Hymes. Ms. Bumgardner testified that Ms. Hymes was demeaning and
intimidating. She stated that Ms. Hymes made her feel like an idiot to the point where she
would shake if she was asked to do something because she was so terrified that she would
do it wrong and Ms. Hymes would belittle her. She testified that Ms. Hymes demanded
loyalty from everyone under her supervision. She also testified that Ms. Hymes told her
that she disliked her direct supervisor, Commissioner Jeffrey Pack, because he did not
come up through the ranks of social services and he was a Republican. Ms. Bumgardner
also testified about a conversation with another employee, Jenny Chapman, who was
interning for Commissioner Pack, wherein Ms. Chapman confided in her that Ms. Hymes
had asked her, on multiple occasions, to “take one for the team by accusing [Commissioner
Pack] of sexual harassment.” Ms. Bumgardner testified that she eventually requested to be
transferred from Ms. Hymes to a different supervisor, which was granted.

The Department called Regina Mitchell, a now retired employee whose cubicle was
stationed close to Ms. Hymes’ office. She testified about incidents where Ms. Hymes was
hostile, threatening, unprofessional and condescending to staff, including one incident
where she kicked in an office door. She stated that she believed that Ms. Hymes would
target employees who wouldn’t stand up for themselves. In regard to Ms. Bumgardner, she
testified that Ms. Hymes bullied her approximately eighty percent of the time.

The Department also called Jondrea Nicholson, a former community services
manager in Marion County. She testified about Ms. Hymes essentially bragging about a
prior hostile work environment investigation going nowhere. She also testified about a
meeting in Martinsburg, West Virginia, where Ms. Hymes made comments about
Department leadership, including Commissioner Pack, wanting her terminated from her
position and stating that she expected leadership to treat her differently once she had weight
loss surgery. Also at the Martinsburg meeting, Ms. Nicholson testified that Ms. Hymes
scolded Jenny Chapman for being on her computer during the meeting, resulting in Ms.
Chapman leaving the room crying. Ms. Nicholson testified that after the meeting, Ms.
Hymes approached her and another employee and asked them what information they had
on Ms. Chapman. Ms. Nicholson also testified that Ms. Hymes told her leadership calls
both of them a “bitch” behind their backs. She also stated that a number of employees told
her they would leave the Department if Ms. Hymes were reinstated.

Next, Jenny Chapman, who was a project manager under Ms. Hymes, was called by
the Department. She testified that on a regular basis Ms. Hymes would criticize or belittle
her in front of others. She testified that Ms. Hymes was critical of Commissioner Pack
because Ms. Hymes felt that he did not deserve his position. She stated on numerous
occasions Ms. Hymes told her to “take one for the team” in regard to Commissioner Pack.
At first, Ms. Chapman thought she meant it as a joke, but Ms. Hymes continued to bring it
up again and again, which made Ms. Chapman very uncomfortable. In another instance at
the Randolph County office, Ms. Chapman felt ill and did not want to participate in an

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interview. Ms. Hymes demeaned Ms. Chapman about not wanting to participate and
essentially dared her to call Commissioner Pack in front of her about Ms. Hymes’ behavior.
Ms. Hymes, while daring Ms. Chapman to call Commissioner Pack, also scheduled Ms.
Chapman’s performance appraisal meeting for that time in that room, which made Ms.
Chapman fearful for her job. Following this event, Ms. Chapman complained of Ms.
Hymes’ conduct. Ms. Chapman testified that at first, her complaint did not mention the
“take one for the team” comments because she was more focused on Ms. Hymes’ treatment
of her but after talking with Ms. Bumgardner, she decided that reporting the “take one for
the team” comments was the right thing to do.

Ms. Hymes called several witnesses from her time at the Department who
essentially all testified that Ms. Hymes was generally not intimidating, though she could
be very direct and had a loud voice. However, these witnesses were largely not present
when the relevant events occurred, did not work directly with Ms. Hymes daily, did not
work with her during the time in question, or were personal friends with Ms. Hymes.3

Ms. Hymes also called several witnesses who participated in the investigation,
including Dawn Adkins, director of employee management, who testified that the prior
hostile work environment investigation against Ms. Hymes was substantiated and resulted
in disciplinary action; namely, a written warning that was later reduced to a verbal warning
at the request of Ms. Hymes. She also admitted that the investigation revealed that only
Jenny Chapman heard Ms. Hymes make the “take one for the team” comment, though Ms.
Hymes admitted during the investigation that the remarks were made. Ms. Hymes also
called Commissioner Pack, who testified that he never observed Ms. Hymes bullying or
intimidating anyone. However, he admitted on cross that he travelled a lot, as did Ms.
Hymes, for work, and therefore they were not often present together. He also admitted that
she could be difficult to work with. Specifically, if he made a decision that was different
from what she advocated for, Ms. Hymes would take it as a personal affront.

Following the hearings, on July 24, 2024, the Grievance Board entered its twenty-
seven-page decision. In that decision, the Grievance Board found that Ms. Hymes had
previously been disciplined following an investigation in 2017 for creating a hostile work
environment. Turning to the present allegations, the Grievance Board found that Ms.

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For instance, Ms. Hymes called Paula Ullom, her administrative assistant, to
testify. On cross-examination Ms. Ullom admitted that her office was in Ohio County,
which is not where Ms. Hymes’ office was. Another example is Roann Bosley, social
services manager in the northern district, who only saw Ms. Hymes five or six times in
person. Also called to testify was Christie Fortney, who worked under Ms. Hymes as a
program manager since 2017. On cross, Ms. Fortney admitted that she and Ms. Hymes
were personal friends. However, even she admitted that as a supervisor, it is inappropriate
to even joke with a subordinate about “taking one for the team.”

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Hymes engaged in hostile and intimidating behavior towards subordinates Ms.
Bumgardner and Ms. Chapman, even in the presence of others. The Grievance Board found
that although the Department failed to prove that Ms. Hymes attempted to frame
Commissioner Pack for sexual harassment, Ms. Hymes admitted to joking about “taking
one for the team,” which was inappropriate and caused Ms. Chapman to perceive the
remark as an attempt to orchestrate Commissioner Pack’s removal. As such, the Grievance
Board concluded that the Department proved that Ms. Hymes belittled, bullied, harassed,
threatened, and yelled at subordinates and had inappropriate discussions, some of which
undermined Commissioner Pack, and that this conduct created a hostile work environment
for subordinates. The Grievance Board noted that none of Ms. Hymes’ witnesses could
directly corroborate her denials because they were not present at the time of any of the
alleged events but were instead character witnesses. The Grievance Board noted that Ms.
Hymes claimed that any statements made during her investigative interview should be
excluded because her attorney was not present. In this regard, the Grievance Board found
that Ms. Hymes did not claim she wanted her attorney present or provide her attorney’s
contact information, nor did she provide any authority for the proposition that exclusion of
her interview statements would be the appropriate remedy.

As a result, the Grievance Board concluded that the Department had proven by a
preponderance of the evidence that Ms. Hymes created a hostile work environment and
this, along with her prior discipline for the same offense and her position in leadership,
constituted good cause for her dismissal. The Grievance Board further concluded that Ms.
Hymes was not deprived of due process, and she failed to prove that her dismissal was
excessive. It is from this decision that Ms. Hymes appeals.

Our governing standard of review for a contested case from the Grievance Board is
as follows:

The court may affirm the order or decision of the agency or remand the case
for further proceedings. It shall reverse, vacate, or modify the order or
decision of the agency if the substantial rights of the petitioner or petitioners
have been prejudiced because the administrative findings, inferences,
conclusions, decision, or order are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

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W. Va. Code § 29A-5-4(g) (2021) (specifying the standard for appellate review of
administrative appeal).

On appeal, Ms. Hymes first asserts that the Grievance Board erred in determining
that she was not entitled to progressive discipline as outlined in the Department’s Policy
Memorandum 2104. We disagree. As initial matter, Policy Memorandum 2104 states that
its purpose is to provide guidance “for progressively correcting performance or behavior
when appropriate[.]” (emphasis added). Policy Memorandum 2104 also states that its
authority is derived, in part, from West Virginia Code of State Rules § 143-1-12.2, which
provides, “[a]n appointing authority may dismiss any employee for cause.” Here, given the
substantial evidence supporting Ms. Hymes’ termination, her position in leadership, and
the prior discipline against her for the same offense, we cannot say the decision of the
Grievance Board that she was not entitled to progressive discipline was in violation of
constitutional or statutory provisions; in excess of the statutory authority or jurisdiction of
the agency; made upon unlawful procedures; affected by other error of law; clearly wrong
in view of the reliable, probative, and substantial evidence on the whole record; or arbitrary
or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.

Next, Ms. Hymes asserts that the Grievance Board erred by giving no weight to the
testimony of Ms. Hymes’ witnesses. We disagree. Our State Supreme Court has held:

Since a reviewing court is obligated to give deference to factual findings
rendered by an administrative law judge, a [reviewing court] is not permitted
to substitute its judgment for that of the hearing examiner with regard to
factual determinations. Credibility determinations made by an administrative
law judge are similarly entitled to deference.

Cahill v. Mercer Cnty. Bd. of Educ., 208 W. Va. 177, 180, 539 S.E.2d 437, 440 (2000)
(footnote omitted). Here, it is clear from the Grievance Board’s detailed order that it
carefully reviewed the evidence presented to it over the course of five lengthy hearings and
determined which evidence was salient to the issues being considered and the weight such
evidence should be afforded. Though Ms. Hymes disagrees with the Grievance Board’s
interpretation of certain evidence, resolution of conflicting evidence, and the inferences
drawn therefrom, after a review of the record we cannot conclude that the Grievance
Board’s findings of fact and conclusions of law are in violation of constitutional or
statutory provisions; in excess of the statutory authority or jurisdiction of the agency; made
upon unlawful procedures; affected by other error of law; clearly wrong in view of the
reliable, probative, and substantial evidence on the whole record; or arbitrary or capricious
or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Ms. Hymes also asserts that the Grievance Board erred when it did not consider that
Ms. Hymes was never given a “proper” pre-determination conference. Essentially, Ms.

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Hymes argues that she was deprived of due process because she received her termination
letter the day after the pre-determination conference. We disagree. The West Virginia
Supreme Court of Appeals held that “[t]he constitutional guarantee of procedural due
process requires ‘some kind of hearing’ prior to the discharge of an employee who has a
constitutionally protected property interest in his employment.” Syl. Pt. 3, Fraley v. Civil
Serv. Comm’n, 177 W. Va. 729, 356 S.E.2d 483 (1987) (citation omitted). Here, it is
uncontested that Ms. Hymes received a pre-determination conference prior to being
terminated. Ms. Hymes cites no authority for her proposition that there must be a certain
amount of time after the pre-determination conference before a determination is made.
Accordingly, we cannot conclude that the Grievance Board’s findings of fact and
conclusions of law are in violation of constitutional or statutory provisions; in excess of
the statutory authority or jurisdiction of the agency; made upon unlawful procedures;
affected by other error of law; clearly wrong in view of the reliable, probative, and
substantial evidence on the whole record; or arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion.

Lastly, Ms. Hymes asserts that the Grievance Board erred by considering Ms.
Hymes’ interviews that were conducted without her counsel present. Again, we disagree.
Ms. Hymes relies on West Virginia Code § 6C-2-3(g)(1) (2023), which provides,

An employee may designate and shall provide the name and contact
information for the individual or organization of the representative who may
be present at any step of the procedure, as well as at any meeting that is held
with the employee for the purpose of discussing or considering disciplinary
action.

However, our Supreme Court of Appeals has held that in order for a public
employee to be denied the right afforded to them by § 6C-2-3(g)(1), the employee must
invoke that right. See Layne v. Kanawha Cnty. Bd. of Educ., No. 16-0407, 2017 WL
657002, at *6 (W. Va. Feb. 17, 2017). Here, Ms. Hymes does not assert that she was denied
her right to have counsel present after requesting her attorney be present. Accordingly, we
cannot conclude that the Grievance Board’s findings of fact and conclusions of law are in
violation of constitutional or statutory provisions; in excess of the statutory authority or
jurisdiction of the agency; made upon unlawful procedures; affected by other error of law;
clearly wrong in view of the reliable, probative, and substantial evidence on the whole
record; or arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Based on the foregoing, we affirm the Grievance Board’s July 24, 2024, decision.

Affirmed.

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ISSUED: August 6, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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