JOE WHITE,
            Grievant,

v.                                                       Docket No. 99-BEP-496

BUREAU OF EMPLOYMENT PROGRAMS/
WORKERS' COMPENSATION,
            Respondent.

D E C I S I O N

      Grievant, Joe White, was an employee of the Bureau of Employment Programs ("BEP"). Grievant was terminated on November 23, 1999, for violation of BEP's microcomputer policies, i.e., inappropriate use. Grievant argues his termination was arbitrary and capricious and did not follow BEP's progressive discipline policy. The requested relief is reinstatement into his former position, his termination reduced to a five- day suspension, and back pay plus interest. Grievant appealed directly to Level IV, and a hearing was held on March 13, 2000.   (See footnote 1)  This case became mature for decision on April 19, 2000, after receipt of BEP's proposed findings of fact and conclusions of law.   (See footnote 2) 
      Grievant was orally and immediately terminated on November 23, 1999, for violation of BEP's Internet Policy, as well as other of BEP's computer policies. He was informed a search of his computer had revealed he had visited sexually explicit sites and had viewed "hard core pornography" from the Internet on his work computer. Grievant denied these charges, but noted he had, at times, accidently stumbled on sexually explicit sites with multiple "pop ups".       BEP followed Grievant's oral termination with a confirmation letter dated November 30, 1999, from Commissioner William Vieweg.   (See footnote 3)  This letter states in pertinent part:



Resp. Ex. No. 1.

Issues and Arguments

      Grievant made many arguments about his termination, and why it was unfair and arbitrary and capricious. Grievant made additional arguments at hearing, and Grievant was allowed to amend his grievance in the interest of fairness, as he was unrepresented. Grievant contends: 1) BEP did not follow its progressive discipline policy, and his prior suspension for sexual harassment could not be coupled with this charge to result in dismissal, as they were not the same offense; 2) BEP treated him more harshly than asimilarly situated employee; 3) his discharge was politically motivated; 4) he did not commit the acts of which he is accused; 5) he did not receive written notice of his discharge; and 6) he suffers from a Cyber-Sexual Internet Addiction, and to discharge him instead of getting him treatment violates the Americans with Disabilities Act.
      Respondent maintains it has met its burden of proof and demonstrated Grievant committed the acts for which he was discharged; his discharge was directly related to his misconduct and was not politically motivated; no disparate treatment occurred; the progressive discipline policy was followed; and written notice of his termination was sent to Grievant. Respondent argues Grievant was insubordinate, and his behavior was a direct violation of the Commissioner's prior directive that his behavior must be professional, and further "objectionable behavior related to sexually explicit activity would not be tolerated." Resp. Ex. No. 1. Respondent also indicated Grievant had engaged in Sexual Harassment, as looking at pornographic materials at work was offensive to others. Additionally, in reference to Grievant's Cyber-Sexual Internet Addiction, BEP made two arguments: 1) Grievant has not proven he suffers from this condition; and 2) Grievant never informed BEP he had this problem, so no accommodation was asked for or could be received.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.

Findings of Fact

      1.      Grievant was employed as an Underwriter I in the Self Insurance Section of the Workers' Compensation Division of BEP.      2.      On November 13, 1998, Grievant received a letter notifying him of a five day suspension for Sexual Harassment and specifying the charges. This letter reads in pertinent part:

      



. . .


Resp. Ex. No. 3.
      
      3.      On November 20, 1998, Grievant received a second letter from Commissioner Vieweg, notifying Grievant that after consultation with Grievant's supervisors, he had reconsidered the length of the suspension and had reduced it from five to three days. Commissioner Vieweg noted, "[i]t is hoped that you recognize the severity of the allegations against you and the need to modify your behavior to be in compliance with acceptable work standards. Any future incident of this nature will not be tolerated and the progressive disciplinary process will be imposed should any occur." Resp. Ex. No. 3.
      4.      Grievant grieved this three day suspension, and it was denied at Level II. After one day of hearing at Level III, Grievant asked to withdraw his grievance, and this request was granted by Hearing Evaluator Jack DeBolt on January 20, 1999.   (See footnote 4)  Resp. Ex. No. 4.
      5.      Contrary to Grievant's testimony, in December 1998, he received BEP's Acceptable Use Policy - Internet. On December 11, 1998, he signed the EmployeeAcknowledgment Form which stated, "I acknowledge that I have read the WBEP Acceptable Use Policy- Internet on the above date." Resp. Ex. No. 8.
      6.      This policy specifies the use of the Internet is for work related activities and "not for any individual's personal purposes." Section 3.2. Additionally, the Acceptable Use Policy - Internet contains the following regulations that apply to this grievance:

. . .



Termination for a first time offense of this Policy is allowable.

      7.      Prior to Grievant's termination, his supervisor, Gwen Stone, observed Grievant had placed his computer screen at a very odd angle that made it difficult to see the screen. This position also made it impossible for anyone who entered the office to see his screen as well. She believed he might be using the computer for personal use, and reminded him that BEP had the ability to track all the sites he visited on his computer.
      8.      BEP has instituted many procedures and practices to maintain the security of its data and to prevent the abuse and misuse of its work computers. Employees must use a password to sign on to a computer, and they are required to change this passwordevery three months. Employees are required to lock their computer if they are to be away from their desk. If the employee forgets to lock the computer, it will lock itself after a ten minute period without use. The computer cannot be unlocked until the same password that was used to start it is entered again. When an employee inputs his password it comes up as a series on X's, and not as the password. Employees are forbidden to share their passwords with each other.       
      9.      On November 18, 1999, Grievant's wife called for Grievant at work. Grievant was not in the office as he had taken sick leave to take his daughter to the doctor. Since the phones in the office must be answered at all times, Grievant had rolled his phone over to his supervisor, Ms. Stone. Ms. White was very upset and shared with Ms. Stone her belief that Grievant was downloading pornography from the Internet while he was at work.
      10.      Ms. Stone was very upset by this information and sought out her supervisor, Melinda Ashworth Kiss. Ms. Kiss took the information to her supervisor, John "Ed" Burdette. They contacted Oscar Lewis, the Manager of the Technical Support Division, and asked him to check out Grievant's computer.
      11.      When Mr. Lewis checked Grievant's computer, history was only available for November 17 through November 19. The history on a computer is usually longer than this, but the history can be reset from the default.
      12.      Mr. Lewis found Grievant had visited some sites that were non-business related. He also found Grievant had "visited several graphic, hard core pornographic sites", and "[b]ased on the number of sites visited, we would have to conclude the visits were intentional and not accidental." Res. Exhs. 9 & 11.      13.      On November 19, 1999, Grievant visited multiple sexually explicit sites containing hard core, gay pornographic materials. He visited these sites for sixteen minutes, and to get to some of the sites it was necessary for him to click down through several screens into these sites. These visits were not accidental. Resp. Ex. No. 11.
      14.      Mr. Lewis was directed to check Grievant's computer again on November 23, 1999. He found Grievant had again used the computer for non-business related activities, and had visited inappropriate sites on November 22, 1999. Resp. Ex. No. 9.
      15.      Mr. Lewis also reviewed Grievant's "cookie" file   (See footnote 5)  and found "Multiple instances of objectionable site visits. . . ." and site visits for personal use. Res. Exh. 9. Grievant's "cookie" file and this list contained names of places such as "menchat3.gay", "sexlist", "sexhound", "sextracker", "bi-curioustv", "porncards", "lovecards", "hotbot", "gaysexswap", "personalsonline", "ohboys", "outincolumbus", "valueclick" and "babylon-x". Several of these sites were visited numerous times. Resp. Ex. No. 10.
      16.      Grievant was confronted with this information on November 23, 1999, the day he was orally discharged. He denied he had ever used the Internet inappropriately, and said he may have inadvertently clicked on sexually explicit sites. He also indicated many other people used the Internet at work for non-business related purposes, and at times people had forwarded sexually explicit cartoons, etc. to him. Grievant noted that sometimes he would click on a site, and multiple sites would open up on a screen.       17.      To remove multiple site pop-ups from the screen takes only a few seconds, as the operator needs to point and click each of them off separately. Test. Mr. Lewis.
      18.      After Grievant's termination, sometime in February or March 2000, Grievant decided he had Cyber-Sexual Internet Addiction. He came to this conclusion through discussions with counselors on the Internet. These counselors, who are not licensed to practice in West Virginia, informed Grievant they believed he probably had this addiction because he exhibited the symptoms and criteria for the diagnosis.   (See footnote 6)  Grievant has no medical evidence of his alleged diagnosis.
      19.      Grievant stated the following in his testimony:   (See footnote 7) 



      20.      Grievant's co-worker, who had also been found to have visited sexually explicit sites, received a five day suspension. He had never received any prior disciplineor counseling. This fact was the reason he was not terminated. In his suspension letter the co-worker was told he would be dismissed from employment "for the next validated misuse of the Bureau's information technology resources via the Internet or any other means." Grt. Ex. No. 3.
      21.      The work of the self-insured unit can have political overtones because the unit deals with some of the State's largest employers. Test. Ms. Stone.
      22.      Ms. Stone has been employed in the self-insured unit for many years and is currently the supervisor of this unit. She has recommended actions and taken work- related actions that have not pleased her supervisors. She has "flourished" in this position and has received excellent evaluations and merit increases. Test. Ms. Stone.
      23.      In September 13, 1999, an audit Grievant recommended was canceled by an upper level supervisor. Grievant and Ms. Stone did not agree with that decision. Grt. Ex. No. 2.
      24.       On January 5, 2000, after Grievant was terminated, Mr. Burdette sent an E- mail to multiple employees informing them he was concerned that some staff members were using the Internet for non-business related purposes. The memo reiterated what type of materials were not appropriate and notified employees that the memory of various computers would be reviewed to determine the web sites visited and the duration of each visit. Grt. Ex. No. 4.
      25.      Policy 6400.01 discusses proper conduct for BEP employees. This Policy states that employees are prohibited from "[e]ngaging in sexual or racial harassment". The list given in the policy is not meant to be all inclusive. The Policy notes it is the employee'sresponsibility to conduct himself in a positive manner toward the Bureau, and "should deviant and unacceptable behavior continue, proper disciplinary procedures will be initiated, in accordance with Policy 6400.21/Disciplinary Actions." Resp. Ex. No. 2.
      26.      The Severance Pay Policy of the West Virginia Division of Personnel specifies that with an involuntary discharge, if the employer elects immediate separation from the workplace, the employee is entitled to receive severance pay for the time the employee otherwise would have worked, up to a maximum of fifteen calendar days following separation. Because BEP dismissed Grievant immediately, he received this severance pay in lieu of advance notice.
      27.      Grievant did not receive written notice of his discharge although Respondent mailed it.

Discussion

      The burden of proof in disciplinary matters rests with the employer, and the employer must meet that burden by proving the charges against an employee by a preponderance of the evidence. W. Va. Code § 29-6A-6; Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988). "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 and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.       Multiple issues have been raised by the parties, and these will be addressed separately.
I.      Credibility      
      Although some facts pertinent to this matter are not in dispute, the testimony about many of the specific events which generated this disciplinary action varied between Respondent's witnesses and Grievant's testimony. Additionally, Grievant's testimony varied between his statements that he had looked at sexually explicit sites, and that he had never seen the material generated from his computer and presented as evidence.
      An Administrative Law Judge is charged with assessing the credibility of the witnesses that appear before her. See Lanehart v. Logan County Bd. of Educ., Docket No. 95-23-235 (Dec. 29, 1995); Perdue v. Dep't of Health and Human Resources/Huntington State Hosp., Docket No. 93-HHR-050 (Feb. 4, 1993). In these circumstances, where the existence or nonexistence of certain material facts hinges on witness credibility, detailed findings of fact and explicit credibility determinations are required. Maxey v. McDowell County Bd. of Educ., Docket No. 97-33-208 (Apr. 30, 1998); Hurley v. Logan County Bd. of Educ., Docket No. 97-23-394 (Dec. 11, 1997). See Pine v. W. Va. Dep't of Health & Human Resources, Docket No. 95-HHR-066 (May 12, 1995). See also Harper v. Dep't of the Navy, 33 M.S.P.R. 490 (1987). "The fact that [some of] this testimony is offered in written form does not alter this responsibility." Browning v. Mingo County Bd. of Educ., Docket No. 96-29-154 (Sept. 30, 1996).
      The United States Merit Systems Protection Board Handbook (“MSPB Handbook”) has set out factors to examine when assessing credibility, and this Grievance Board hasrecognized these factors as helpful. Harold J. Asher and William C. Jackson, Representing the Agency before the United States Merit Systems Protection Board 152-53 (1984). Some factors to consider in assessing a witness's testimony 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. Id. Additionally, the administrative law judge 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.
      The undersigned Administrative Law Judge finds the Respondent's witnesses to be credible. Grievant's supervisors testified Grievant was an excellent worker with good evaluations, but his inappropriate behavior and violation of policies could not be tolerated. Further, the testimony of Mr. Lewis was clear and supported by documentation.
      As for Grievant's testimony, it was confusing. At the outset of the hearing, he stated he had looked at sexually explicit sites and had Cyber-Sexual Internet Addiction. Later, when he found out Mr. Lewis could not specifically swear Grievant was the one who had operated the computer at the specified time, Grievant stated he had never seen the sexually explicit materials presented into evidence. Given this set of facts, and especially Grievant's testimony he had violated BEP's Acceptable Use Policy - Internet, the undersigned Administrative Law Judge finds Grievant to be less than credible, and finds he did abuse the Acceptable Use Policy - Internet.
II.      Written Notice/Due Process      The next issue is Grievant's failure to receive written notice of the grounds for his termination, as is required by Division of Personnel's Severance Pay Policy. It is well settled that "[a]n administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs." Syl. Pt. 1, Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220 (1977). "However, an allegation that an employer failed to follow a specific procedural requirement in accomplishing a disciplinary action is an affirmative defense, and Grievant has the burden of establishing the facts to support such allegation by a preponderance of the evidence." Bradley v. Cabell County Bd. of Educ., Docket No. 99-06-150 (Sept. 9, 1999). In addition, a grievant must show the procedural error, more likely than not, influenced the outcome. Otherwise, if the same result would have inevitably been reached, the procedural violation will be considered as "harmless error." Bradley, supra; Dadisman v. W. Va. Div. of Rehabilitation Servs., Docket Nos. 98-RS- 023/040 (Mar. 25, 1999).
      Additionally, when a "violation of the grievance procedure is merely technical, following substantial compliance with the procedure, and there has existed between the employee and his supervisors ongoing communications concerning the employee's employment problems", this procedural error will not invalidate the action of the employer. Vosberg v. Civil Serv. Comm'n, 166 W. Va. 488, 275 S.E.2d 640 (1981); See McFadden v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-428 (Feb. 17, 1995). See generally Parker v. Defense Logistics Agency, 1 M.S.P.B. 489 (1980).
      In this set of circumstances, it does not appear a violation took place. Grievant was well aware of the charges against him, BEP sent him written notice of the grounds for histermination, and these grounds were obviously the same as those discussed in his termination meeting. Other BEP employees received their copy of this letter, BEP mailed a copy to Grievant, and Grievant did not inform his employer he had not received a copy. This is a situation where any possible violation of the notice procedure was merely technical, if it occurred at all. BEP engaged in substantial compliance with the notice procedure, and Grievant knew of the allegations against him because of the discussion on November 23, 1999. Accordingly, this procedural error will not invalidate the action of the employer. Vosberg, supra.
III.      Insubordination
      The issue here is whether Grievant was insubordinate for failing to follow his supervisor's directives and policies. Insubordination involves the "willful failure or refusal to obey reasonable orders of a superior entitled to give such order." Riddle v. Bd. of Directors/So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); See Riffle v. Dep't of Transp., Docket No. 99-DOH-364 (Jan. 25, 2000); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). This Grievance Board has previously 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) (citing Weber v. Buncombe County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980)). See Adkins v. Dep't of Health and Human Resources, Docket No. 98-HHR-151 (Oct. 30, 1998). In order to establish insubordination, an employer must demonstrate that a policy or directive that applied to the employee was in existence at the time of theviolation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995); See English v. Div. of Corrections, Docket No. 98-CORR-082 (June 29, 1998).
      An employee's belief that management's decisions are incorrect, absent a threat to the employee's health or safety, does not confer upon him the right to ignore or disregard the order, rule, or directive. Lilly v. Fayette County Bd. of Educ., Docket No. 97-10-084 (Feb. 11, 1998 ). See Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 97-HHR-042B (Sept. 30, 1997). See generally, Meckley v. Kanawha County Bd. of Educ., 181 W. Va. 657, 383 S.E.2d 839 (1989) (per curiam). "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) (citing Meads v. Veterans' Admin. 36 M.S.P.R. 574 (1988)). Additionally, an employer has the right to expect subordinate personnel "to not manifest disrespect toward supervisory personnel which undermines their status, prestige, and authority . . . ." McKinney v. Wyoming County Bd. of Educ., Docket No. 92-55-112 (Aug. 3, 1992) (citing Burton, supra).       "Few defenses are available to the employee who disobeys a lawful directive; the prudent employee complies first[,] and expresses his disagreement later." Hundley v. W. Va. Div. of Corrections, Docket No. 96-CORR-399 (Oct. 27, 1997): See Maxey v. W. Va. Dep't of Human Resources, Docket No. 93-HHR-424 (Feb. 28, 1995). "Generally, an employee must obey a supervisor's order and then take appropriate action to challenge the validity of the supervisor's order." Reynolds, supra. "An employee may not disregarda direct order of a superior based upon the belief that the order is unreasonable." McKinney, supra. "Essentially, an employer can meet its burden [of proof] by showing that the person giving the order had the authority to do so, and that the order did not require the employee to act illegally or place himself or co-workers at unnecessary risk." Surber v. Mingo County Bd. of Educ., Docket No. 96-29-15 (Dec. 12, 1996). See Hundley, supra; Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995).
      The answer as to whether Grievant was insubordinate is clear from the testimony presented. Grievant willfully refused "to obey reasonable orders of a superior entitled to give such order." Riddle, supra; Webb, supra. The Acceptable Use Policy - Internet is specific. Employees are not to use BEP's computers and the Internet for personal use and are not "[t]o download, display or transmit sexually explicit materials." Grievant admitted he looked at sexually explicit sites. Even if Grievant had not admitted he looked at sexually explicit sites, Respondent has established by a preponderance of the evidence that Grievant did engage in this inappropriate behavior. Accordingly, Respondent has demonstrated that "a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination." Conner, supra.
IV.      Failure to follow progressive discipline/Connection of two dissimilar types of       conduct

      Grievant argues BEP failed to follow its progressive discipline policy. A copy of this policy was not submitted into evidence by either party. The undersigned AdministrativeLaw Judge takes administrative notice that it is typical that a termination for misconduct can follow a suspension for misconduct. It is also noted the Acceptable Use Policy - Internet informs employees they may be terminated for a first offense, and Grievant was on notice of this fact, as he had read the Policy and signed a statement indicating he understood its contents.
      However, Grievant argues BEP impermissibly tied the two events together to reach the decision to terminate him, and this action was arbitrary and capricious. He maintains Commissioner Vieweg's suspension letter states he will only be terminated for another incidence of Sexual Harassment, and Grievant argues his viewing sexually explicit sites on the Internet is not Sexual Harassment.
      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into the facts is requiredto determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      The Commissioner's letter of suspension on November 13, 1998, states

      
Resp. Ex. No. 4.

      The Commissioner's follow-up letter, reducing the suspension, dated November 20, 1998, states "[i]t is hoped that you recognize the severity of the allegations against you and the need to modify your behavior to be in compliance with acceptable work standards. Any future incident of this nature will not be tolerated and the progressive disciplinary process will be imposed should any occur." Resp. Ex. No. 12.
      Both of the letters refer to acceptable conduct as it relates to work behavior, and they do not specify the Commissioner was only speaking about Sexual Harassment. Additionally, both letters refer to sexually explicit and sexually related behavior. Accordingly, the undersigned Administrative Law Judge finds they are closely related, and the Commissioner's decision to examine Grievant's past misconduct, and tie it with the current misconduct is not arbitrary and capricious or incorrect. V.      Politically motivated termination
      Although Grievant argued he was terminated for politically motivated reasons, his evidence is this area was limited to one E-mail where an upper level supervisor canceled a September 1999 audit Grievant had planned. He testified big employers in West Virginia were recommending and pushing for his discharge, and that there were multiple complaints about him to "the powers that be." The testimony presented by Grievant and BEP contradicted this theory. Ms. Stone recalled Grievant had received the highest ratings of anyone she supervised in his most recent evaluation, that there were very few complaints about Grievant's work, that he was an excellent employee, and his termination was in no way motivated by political reasons. Ms. Kiss testified Grievant's termination was not politically motivated, but that with the problems she had with him in recent years, all dealing with similar behavior, she believed the correct course of action was termination. Thus, as Grievant's evidence on this issue is very limited, this issue will not be addressed further. "[M]ere allegations alone without substantiating facts are insufficient to prove a grievance." Baker v. Bd. of Trustees, Docket No. 97 BOT-359 (Apr. 30, 1998).
VI.      Discrimination
      Grievant argues he has been discriminated against because another employee who was disciplined for the same misconduct was only suspended, thus, they were not treated in the same manner. He maintains that he and the other employee were similarly situated. W. Va. Code § 29-6A-2(d) defines discrimination as "any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing."       To prove discrimination a grievant must establish a prima facie case which consists of demonstrating:


      and,


If a grievant establishes a prima facie case, a presumption of discrimination exists, which the respondent can rebut by presenting a legitimate, nondiscriminatory reason for the action. However, a grievant may still prevail if he can demonstrate the reason given by the respondent was pretextual. Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Grievant's argument must fail as he has not proven he was similarly situated to the employee to whom he compared himself. The employee who received a five day suspension for the same offense did not have any history of prior disciplinary actions. Grievant, on the other hand, had received prior counseling on Sexual Harassment, and subsequently received a suspension for Sexual Harassment. Accordingly, the two employees are not similarly situated, and Grievant has not proven he was discriminated against.
VII.      Violation of the Americans with Disabilities Act      Grievant contends BEP has a duty to provide treatment to him for his disability, and should not have terminated his employment. Public employers are prohibited from discriminating in terms and conditions of employment because of "handicap" under the West Virginia Human Rights Act, W. Va. Code §§ 5-11-1, et seq., or "disability" under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12112-14 (1994). This Grievance Board does not have authority to determine liability for claims that arise under the West Virginia Human Rights Act, which would include a claim of handicap discrimination. Nevertheless, the Grievance Board's authority to provide relief to employees for "discrimination", "favoritism", and "harassment", as those terms are defined in W. Va. Code § 29-6A-2, includes jurisdiction to remedy discrimination that would also violate the Human Rights Act. See Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP- 099 (Dec. 18, 1996). See Vest v. Bd. of Educ., 193 W. Va. 222, 455 S.E.2d 781 (1995). The definition of discrimination and the elements a grievant needs to establish are identified in the prior section.      
      A review of the applicable law under the Americans With Disabilities Act, 42 U.S.C. § 12111, et seq. ("ADA"), reveals Grievant's claims must fail. The ADA provides that:

42 U.S.C. § 12112.
      A person making a claim of discrimination under the ADA bears the burden of proving a prima facie case of discrimination by a preponderance of the evidence. In a typical ADA case, the claimant must prove that:
      (1)       
      (2)


Ennis v. Nat'l Assoc. of Bus. & Educ. Radio, Inc., 53 F.3d 55 (4th Cir. 1995).

      Once a claimant has made a prima facie case of discrimination, the burden shifts to the employer to articulate some legitimate, nondiscriminatory explanation, which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action. If the employer meets this burden, the presumption created by the prima facie case "drops out of the picture", and the claimant bears the ultimate burden of proving that he has been the victim of intentional discrimination. Id. at 58., citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.C. 2742, 125 LED.2d 407 (1993).   (See footnote 8)        Based upon the facts in this case and the following discussion, I find Grievant has not established a prima facie claim of discrimination under the ADA, because she was not in the protected class.
      The ADA defines "disability" as:


      (B)      a record of such impairment; or

      (C)      being regarded as having such an impairment.

      The determination of whether an individual has a disability within the meaning of the ADA must be decided on a case-by-case basis. Barfield v. Bell South Telecommunications, Inc., 886 F. Supp. 1321 (S.D. Miss. 1995). For an impairment to "substantially limit" one or more major life activities, the individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an "average person in the general population." 29 C.F.R. § 1630.2(j); McKay v. Toyota Motor Mfg., U.S.A., Inc., 878 F. Supp. 1012 (E.D. Ky. 1995).
      Grievant has failed to prove that he has a handicap or is disabled within the meaning of the ADA. There was no evidence to support the diagnosis of Cyber-Sexual Internet Addiction, or to support Grievant's assertion this was a physical or mental impairment that substantially limited his ability to perform one or more of the major life activities. Additionally, there was no record of such impairment, nor was Grievant regarded as having such an impairment.       Further, Grievant did not inform his employer he suffered from a disability, nor did he request an accommodation. In fact, Grievant notes he did not suspect he suffered from this disease until three to four months after his termination. "It is not the employer's duty or burden to research its employees' medical conditions to determine whether they rise to the level of a disability." Bowman v. Educ. Broadcasting Auth. Docket No. 96-EBA-464 (July 3,1997); See Myers v. W. Va. Dep't of Transp., Docket No. 96-DMV-304 (Feb. 10, 1997); Lewis v. Mason County Bd. of Educ., Docket No. 94-26-175 (Dec. 12, 1994); Howell v. W. Va. Dep't of Health and Human Res., Docket No. 90-H-484 (Sept. 27, 1991); Cordray v. Wood County Bd. of Educ., Docket No. 90-54-267 (Jan. 31, 1991). Accordingly this argument must also fail.
      The above-discussion will be supplemented by the following Conclusions of Law.

Conclusions of Law

      1.      The burden of proof in disciplinary matters rests with the employer, and the employer must meet that burden by proving the charges against an employee by a preponderance of the evidence. W. Va. Code § 29-6A-6; Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988). "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 and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.
      2.      Respondent did not violate the notice provisions of the Division of Personnel's Severance Pay Policy.      3.      Grievant violated BEP's Acceptable Use Policy - Internet, and this action constituted insubordination.
      4.      Grievant failed to demonstrate BEP did not follow its progressive discipline policy, or that it was arbitrary and capricious for BEP to link the prior suspension with Grievant's current misconduct when electing to terminate Grievant.
      5.      Grievant did not meet his burden of proof and demonstrate his termination was politically motivated. "[M]ere allegations alone without substantiating facts are insufficient to prove a grievance." Baker v. Bd. of Trustees, Docket No. 97 BOT-359 (Apr. 30, 1998).
      6.      Discrimination is defined as "any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing." W. Va. Code § 29-6A-2(d)
      7.      To prove discrimination a grievant must establish a prima facie case which consists of demonstrating:


      and,


If a grievant establishes a prima facie case, a presumption of discrimination exists, which the respondent can rebut by presenting a legitimate, nondiscriminatory reason for theaction. However, a grievant may still prevail if he can demonstrate the reason given by the respondent was pretextual. Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      8.      Grievant failed to meet his burden of proof and demonstrate he was similarly situated to the employee to whom he compared himself.
      9.      Grievant did not demonstrate BEP violated the Americans with Disabilities Act, as he did not prove he was in a protected class. Grievant did not establish he had a physical or mental disability that substantially limited one of his major life activities.
      10.      At no time prior to his discharge did Grievant inform BEP of this alleged disability or request an accommodation.
      Accordingly, this grievance is DENIED.       

      Any party, or the West Virginia Division of Personnel, may appeal this decision to the Circuit Court of Kanawha County, or to the "circuit court of the county in which the grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. Theappealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                                                                                  JANIS I. REYNOLDS
                                           ADMINISTRATIVE LAW JUDGE

Dated: May 22,2000


Footnote: 1
      Grievant represented himself, the Bureau of Employment Programs ("BEP") was represented by attorney Patricia Shipman.
Footnote: 2
      Grievant did not submit post-hearing proposals.
Footnote: 3
      Grievant alleges he did not receive this letter. At hearing, Grievant clearly understood the charges against him, and Grievant was paid pursuant to the Division of Personnel's Severance Pay Policy, for the time he would have worked in lieu of notice.
Footnote: 4
      Respondent wished to submit the transcript of one day of these proceedings at Level III. This request was denied as the prior grievance was abandoned, and the transcript only represented the first day of the proceedings, which in a disciplinary grievance would be the presentation of Respondent's case.
Footnote: 5
      "A 'cookie' is information sent by a web site server to your computer while you are connected to that site." http://www.ncbinlm.nih.gov/entrez/query/static/faq.html#cookie. The storage of this information "usually occurs without the user's knowledge or consent." www.c...cooklink.htm. See Resp. Ex. No. 9.
Footnote: 6
      The counselors informed Grievant that one of the signs of this disease was losing a job for looking at sexually explicit sites during work time. Grt.'s test.
Footnote: 7
      Grievant also noted in his Statement of Grievance that another employee "was found guilty of the same offense that I was. . . ."
Footnote: 8
      The applicable standard for establishing handicap discrimination under the West Virginia Human Rights Act, W. Va. Code § 5-11-1, et seq., is similar to the standard set forth in Ennis, supra. Under the Human Rights Act, a claimant must establish that (1) she meets the definition of "handicapped"; (2) she is a "qualified handicapped person"; and (3) she was discharged from her job. The burden then shifts to the employer to rebut the prima facie case by presenting a legitimate, nondiscriminatory reason for the discharge. Morris Nursing Home v. Human Rights Comm'n, 189 W. Va. 314, 431 S.E.2d 353 (1993).