Stipe v. Shinseki (690 F. Supp. 2d 850, 2010)

MEMORANDUM

STEPHEN N. LIMBAUGH, JR., District Judge.

Pro se plaintiff has filed this employment discrimination action alleging numerous instances of discrimination in violation of the Age in Discrimination Act (ADEA), 29 U.S.C. § 621 et. seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq. This matter is before the Court on defendant Secretary’s motion for summary judgment [46], filed September 11, 2009. All responsive pleadings, including plaintiffs amended response, have now been filed and the matter is ripe for disposition.

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions, however, “can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts’ trial time for those that really do raise, genuine issues of material fact.” Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir.1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that “there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.1976). Although summary judgment should seldom be granted in employment discrimination cases, it is proper in those cases wherein the plaintiff fails to establish a factual dispute on an essential element of the case. Snow v. Ridgeview Medical Center, 128 F.3d 1201, 1205 (8th Cir.1997), citing Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762 (8th Cir.1995). “Although summary judgment is to be used sparingly in employment discrimination cases, it is appropriate where one party has failed to present evidence sufficient to create a jury question as to an essential element of its claim.” Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir.2000) (citations omitted). The Eighth Circuit has “repeatedly cautioned that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based. Summary judgment is not appropriate unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party.” Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998) (citations omitted); see, Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.2003) citing Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir.1999). However, it is clear that to survive summary judgment, a plaintiff must support his/her allegations with sufficient probative evidence to permit a finding in the plaintiffs favor based upon more than mere speculation, conjecture, or fantasy. Putman v. Unity Health System, Inc., 348 F.3d 732, 733-34 (8th Cir.2003) quoting Wilson v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995); Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir.2003)(plaintiffs theory of age discrimination failed “[bjecause this theory is supported more by contentions and speculation than evidence, it is insufficient to withstand summary judgment.”).

Although the Court is required to view the facts in the light most favorable to the nonmoving party, it should not accept “unreasonable inferences or sheer speculation as fact.”. Howard v. Columbia Public School District, et al., 363 F.3d 797, 800 (8th Cir.2004). A plaintiff may not “simply point to allegations made in [her] complaint but must identify and provide evidence of ‘specific facts creating a triable controversy.’ ” Howard, at 800 quoting Jaurequi v. Carter Manufacturing Co., 173 F.3d 1076, 1085 (8th Cir.1999). Furthermore, a plaintiff may not simply provide a massive record expecting the Court to sift through it in an effort to find support for the plaintiffs allegations. Howard, at 800-01 (citations omitted). The Court is only obligated to consider “admissible evidence and disregard portions of various affidavits and depositions that were made without personal knowledge, consist of hearsay, or purport to state legal conclusions in fact.”. Howard, at 801 citing Shaver v. Independent Stave Co., 350 F.3d 716, 723 (8th Cir.2003).

Before setting forth the Court’s findings of fact, the Court must address the plaintiffs amended response [61] which appears to be a combination of cited administrative regulations and caselaw, as well as her “responses” to the defendant’s statement of uncontroverted material facts [49]. As noted by the defendant in his reply brief [64], plaintiffs revisions still do not set forth proper factual responses as required under Local Rule 4.01(E) nor do they raise any genuine issues of fact. Even as revised, for example, plaintiffs responses to defendant’s factual statement numbers 1-16, 28, 29, 32, 33, 35, 37, 38, 39, 40-43 fail to contain any reference to the evidentiary record before the Court. Many of the plaintiffs revised responses are nothing more than her unsupported speculations, argument, or some type of legal conclusion; for example, her responses to defendant’s factual statement numbers 16, 17, 28, 29, 33, 34, 36, 37, 39, and 44. As to #34, plaintiff simply states “See Plaintiffs Exhibit BB”. This is not acceptable to the Court. Thus, the Court finds the following facts not in dispute or resolved by the Court based upon the evidentiary record before it. The following facts are those established by the administrative record, the written transcriptions of administrative proceedings, affidavit(s), and other miscellaneous documents submitted by the parties, and said evidence viewed in the light most favorable to the non-movant (plaintiff).

Administrative Review History

Plaintiff Stipe, during the relevant time-period, was employed by the VA as an Education Case Manager, GS-10, Education Customer Service Division, Veteran’s Affairs Regional Office in St. Louis, Missouri. On or about June 5, 2004 plaintiff filed a formal EEO complaint alleging disability discrimination due to a hostile work environment. Gov. Exhibit A. Pursuant to her request, the EEO allowed plaintiff to amend her complaint in January 2005 to include additional instances of alleged harassment due to her “disability”. Gov Exhibit B. On March 30, 2005 the plaintiff again amended her EEO complaint to add claims of age discrimination and retaliation (for the filing of an EEO complaint). Gov. Exhibit C.

The VA’s Office of Resolution Management (ORM) conducted “an appropriate investigation” of the plaintiffs complaint in its entirety. Upon completion of its investigation, the ORM forwarded its investigative file to the VA’s Office of Employment Discrimination Complaint Adjudication (OEDCA). On or about August 22, 2005, the VA issued its Final Agency Decision (FAD) regarding the plaintiffs mixed EEO complaint. Gov. Exhibit D.

In its FAD, the VA addressed each of the plaintiffs thirty-two (32) instances/elaims of discrimination and concluded that she had failed to establish that she was discriminated against based on age, disability, or reprisal. Among other things, it found that plaintiff was chronically tardy, had made a physical threat against a supervisor, had been accommodated (for an alleged back problem) by allowing plaintiff to choose her “tour of duty” and allowed time to stand by her desk (as opposed to sitting for extensive periods of time), and was not subjected to any slurs or objectionable language.

Plaintiff appealed the FAD to the Merit Systems Protection Board (MSPB), which reviewed the adverse agency charges of plaintiffs excessive unexcused tardiness and disrespectful conduct on non-discrimination grounds. Gov. Exhibit E. In its initial decision, the MSPB upheld the VA’s adverse employment actions of disciplining the plaintiff, and ultimately, terminating her employment as an appropriate response to the plaintiffs conduct. As for the plaintiffs age, disability and retaliation discrimination claims, the MSPB found that the plaintiff had failed to support any of her claims of discrimination.

Plaintiff then filed a petition for review of the MSPB’s initial decision with the full Board. On or about August 2, 2006, the MSPB issued its final decision. Gov. Exhibit F. The MSPB (full Board) found no new significant evidence to consider or any error of interpretation of law or applicable regulations in the MSPB administrative judge’s initial decision. The MSPB denied the plaintiffs petition for review.

Plaintiff then appealed to the EEOC Office of Federal Operations (OFO) for review of the MSPB’s final order. On October 17, 2006, the OFO issued its decision concurring with the factual and legal findings of the MSPB. It specifically found that plaintiff was not the subject of discrimination and that the MSPB decision reflected the correct interpretation of applicable laws, regulations, and policies and was supported by substantial evidence in the record. Gov. Exhibit G. Having exhausted her administrative remedies, plaintiff filed her original complaint before this Court on November 21, 2006. On or about January 8, 2007, plaintiff filed her amended complaint.

Excessive Tardiness and Disrespectful Conduct

During the relevant time-period, Scott Nordmoe was the VA Regional Office Education Customer Team Coach in St. Louis, Missouri. Mr. Nordmoe was the plaintiffs direct supervisor. Gov. Exhibit H — Declaration of Scott Nordmoe. Nordmoe was part of the management team that originally hired the plaintiff as a VA education case manager. After plaintiff completed her initial six-month training and certification period, Nordmoe promoted her to a GS-10 case manager position.

As the Education Customer Services Team Coach, Nordmoe managed a team of VA education case managers in the customer service call center in St. Louis. Plaintiff was one of these team members in St. Louis. Nordmoe’s team serviced claims in a sixteen (16) — state region, fielding on average between 1200 and 1500 veteran claims telephone calls per day.

The VA Education Customer Service telephone system was operational from 7:00 a.m until 5:00 p.m. each day to receive telephone calls from VA customers. Employees on the plaintiffs team could choose their daily work schedule, or “tour of duty”. The earliest tour a team member could select began at 6:30 a.m. and ended at 3:00 p.m. The latest tour a team member could select began at 9:30 a.m. and ended at 6:00 p.m. Along with a choice of a tour of duty, the Education Customer Service team was offered a flexible schedule. Therefore, an employee with a tour of duty from 6:30 a.m. to 3:00 p.m. had a core start time of 6:45 a.m. which allowed the employee to report daily between 6:30 a.m. and 7:00 a.m., and their work day would end 8.5 hours after the time in which they had arrived. An employee with a tour of duty from 9:30 a.m. to 6:00 p.m. had a core arrival time of 9:15 a.m. which allowed the employee to report daily between 9:00 a.m. and 9:30 a.m., and their work day would end 8.5 hrs after the time in which they had arrived. Gov. Exhibit H. No employee was required to work any particular tour of duty by either Nordmoe or pursuant to VA policy as long as there were sufficient case managers available during the telephone system’s hours of operation. While management may have asked case managers if they were interested in working a different tour of duty, no employee, including the plaintiff, was denied selection for a case manager position based upon their chosen tour of duty.

Each employee was required to select a core time and stay within those time frames on a daily basis. In order to alter those hours, an employee had to request a core time change to the supervisor, and the supervisor would approve or disapprove the change based upon staffing needs and workloads.

Regardless of which tour of duty an employee chose, every education case manager was required to perform 5.5 hours of telephone claim work during each 8-hr workday. This requirement was the VA national performance standard. Gov. Exhibit H. Time not spent on the telephone answering claim calls was considered to be “down time” or “non-telephone related work activities” in which an employee could attend meetings, attend to union duties, attend training, take breaks, or process claims. Nordmoe routinely granted down time requests for employees to attend mandatory meetings or for other reasons. Attendance at such meetings relieved the employee of the required telephone claim work during such attendance. Plaintiff requested, and was granted, down time to attend all meetings that were required of her by VA management. Gov. Exhibit H.

Plaintiff requested to work a 9:30 a.m. to 6:00 p.m tour of duty, and Nordmoe approved her request. During her tour of duty, plaintiff had from 9:30 a.m. until 5:00 p.m., or seven (7) hours of telephone system operation time (excluding 30 minutes for lunch) to meet the required 5.5 hrs telephone claim work.

In order to provide optimal customer service, it was important for team members to be on time and for Nordmoe to have advanced notice of absences. If a team member was late or absent, other case managers had to handle that employee’s case load. Advance notice of lateness or absence enabled Nordmoe to make adjustments to the work schedules in order to handle the daily call volume with available personnel.

Each January, Nordmoe requested that all education case managers on his team project and schedule all anticipated extended leave (anything over 3 days) that they planned to take for the year. Any extended leave that had not been noted by an employee was considered to be “unscheduled” leave. Furthermore, any other leave of less than 3 days that was not requested in advance of the day the leave was taken was also considered to be “unscheduled” leave. Nordmoe routinely granted “unscheduled” leave requests as long as such requests were not excessively requested, and available staff could handle the additional workload.

At all times relevant to this cause of action, plaintiffs alleged disabilities were dwarfism, spinal stenosis, and vertigo. As of March 2003, plaintiff was allowed to use a scooter in the workplace on a regular basis. Also during the relevant time-period, plaintiff was allowed to use a handicap parking space. Gov. Exhibit I, pgs. 4-5, 9.

On March 5, 2004 Nordmoe verbally counseled plaintiff regarding her frequent requests for unscheduled annual leave. Gov. Exhibit I, pgs. 36-37. Nordmoe informed her that the unscheduled leave requests had caused a significant amount of instances of tardiness and stressed the importance of coming to work in a timely fashion every day. He further informed her that he would give her the following pay period to show improvement in her leave usage.

Plaintiff continued to make numerous unscheduled requests to cover her tardiness; between March 5 and April 16, 2004, plaintiff requested leave for tardiness on March 25, March 31, April 1, April 2, April 5, April 8, April 12, April 13, and April 14, 2004. Despite the number of requests, Nordmoe granted them hoping that plaintiffs attendance would improve. However, by April 16, 2004 Nordmoe considered the situation becoming excessive and no longer tolerable. On April 16, 2004 he issued plaintiff a written counseling memorandum and advised her that he would no longer routinely grant her annual leave for tardiness and that future instances of tardiness risked being unexcused. Gov. Exhibit H; Gov. Exhibit I, pg. 35; and Gov. Exhibit Q. Plaintiff was warned that future annual leave requests would be approved at the discretion of management based upon the reason(s) for the request. He further advised plaintiff that she would be charged as AWOL for unjustified leave requests. Gov. Exhibit H; Gov. Exhibit Q. Finally, plaintiff was informed that she “may be put on a sick leave restriction, if we determine you have a pattern of sick leave abuse.” Gov. Exhibit Q.

Plaintiff was tardy on April 27, April 28, May 7, May 13, May 14, May 17, May 18, May 19, May 20, May 21, May 24, and May 26, 2004. She requested Family-Friendly sick leave for those days, and her requests were granted. Gov. Exhibit H. On May 5, 2004 plaintiff arrived late due to a scheduled doctor’s appointment and requested unscheduled sick leave. Her unscheduled sick leave request was granted. Gov. Exhibit H.

On April 28, 2004 plaintiff was issued a proposed reprimand for three (3) charges of unexcused tardiness on April 19, April 20, and April 22, 2004 for which she was designated as AWOL. On May 18, 2004 the charges in the proposed reprimand were sustained but the reprimand was downgraded to an admonishment. Nordmoe had denied plaintiffs request for unscheduled leave on these dates and charged plaintiff as being AWOL because of her history of excessive tardiness and failure to comply with the conditions set by Nordmoe’s verbal and written counseling. Gov. Exhibit H.

On June 21, 2004 plaintiff was issued a proposed reprimand containing one (1) charge of unexcused tardiness specifying twelve (12) instances of tardiness between April 26 and June 14, 2004; and one (1) charge of AWOL for failing to report to work on June 7, 2004. Gov. Exhibit N, pgs. 5, 6; Gov. Exhibit T. On July 7, 2004, after reviewing plaintiffs history of unscheduled leave requests and her response to the proposed reprimand issued to her on June 21 by Nordmoe, Douglas Bragg (VA Regional Office Education Officer in St. Louis, Mo.) upheld the proposal, and issued the reprimand. Plaintiff refused to sign the reprimand. Gov. Exhibit T.

On July 23, 2004 Bragg issued plaintiff a proposed three (3)-day suspension for her unexcused tardiness on June 24, 2004, unexcused absence for almost 2 hours on June 24, 2004; and unexcused tardiness on July 23, 2004. Gov. Exhibit H; Gov. Exhibit J, pg. 19, and Gov. Exhibit U. Bragg proposed the suspension because of plaintiffs continuing pattern of tardiness despite disciplinary actions.

On or about August 25, 2004 plaintiff was offered “alternate discipline” wherein she would be suspended for three (3) days with pay and would not be placed on non-duty status. Gov. Exhibit J, pgs. 21-24; Gov. Exhibit N, pg. 12. Plaintiff declined the offer of “alternate discipline” because she believed it would interfere with her rights to file an EEO grievance or claim. Gov. Exhibit J, pgs. 21-24. On September 8, 2004, after reviewing plaintiffs employee file and her responses to the proposed suspension, David Unterwagner (Assistant Director of the VA Regional Office in St. Louis, Missouri) upheld the proposed suspension because two (2) of the three (3) charges had to do with unexcused tardiness, and plaintiff had a continuing pattern of chronic unexcused tardiness. Gov. Exhibit O-l, pgs. 8-9; Gov. Exhibit U.

On September 7, 2004 Nordmoe notified plaintiff that she was being placed on sick leave certification for a period of six (6) months for unacceptable use of sick leave to cover her excessive tardiness. Gov. Exhibit H. Effective September 7, 2004 Nordmoe required plaintiff to submit a medical certification from her health care provider for each absence and sick leave request. This medical certification had to include a clear statement that she was incapacitated to perform her duties during the entire period of the absence. Gov. Exhibit R. Nordmoe believed that this requirement was in compliance with the Master Agreement, Article 32 which provided that an appropriate use of sick leave is that the employee is incapacitated to perform his or her duties. Plaintiff was further notified that her absences would be classified as AWOL until such medical certification was deemed acceptable and that failure to comply with these conditions, or further excessive absenteeism, could result in disciplinary action. Gov. Exhibit H.

On October 14, 2004 plaintiff was issued a proposed fourteen (14)-day suspension for instances of unexcused tardiness on August 4, August 18, August 20, August 27, August 30, September 7, October 6, October 12, October 13, and October 14, 2004. Gov. Exhibit H; Gov. Exhibit. Nordmoe had denied plaintiffs unscheduled leave requests for these dates and charged her with being AWOL because of her history of excessive tardiness and continuing noncompliance with prior leave request requirements. Gov. Exhibit H. The proposed 14-day suspension was issued by Bragg. On November 10, 2004, after reviewing all the evidence in connection with these instances of unexcused tardiness and plaintiffs October 29, 2004 reply to the proposed suspension, Unterwagner upheld the suspension. Gov. Exhibit V.

Plaintiff continued to engage in instances of tardiness. Between October 15 and December 14, 2004, Nordmoe denied plaintiffs requests for unscheduled leave, cited her for sixteen (16) instances of unexcused tardiness and charges of being AWOL: October 15, October 19, October 21, October 25, October 26, October 27, October 28, October 29, December 3, December 6, December 7, December 8, December 10, December 13, December 14, 2004, and December 15, 2004.

On October 20, 2004 plaintiff was issued a proposed admonishment by Ms. Louise Wright (Assistant Education Program Chief) for disrespectful conduct. In the proposed admonishment, Ms. Wright refers to an encounter on October 15, 2004 in which she and plaintiff entered into a conversation outside a manager’s office (Carl Thunell’s) which quickly escalated into a heated and confrontational encounter with the plaintiff. Ms. Wright avers that despite repeated advisements to plaintiff to return to her desk because the conversation taking place in a loud manner in the Education Customer Service Section outside Mr. Thunell’s office was “inappropriate”, plaintiff continued to “raise your voice and argue”. Gov. Exhibit W. On November 16, 2004, this admonishment was upheld by Bragg.

Under the Master Agreement, reprimands and admonishments remain in an employee’s Official Personnel Folder (OPF) for six (6) months, and after that time, the employee may request that they be removed from the file. Gov. Exhibit J, pgs. 61-62. The VA is not required to remove reprimands and admonishments from an employee’s file. Gov. Exhibit J, pg. 62. On December 8, 2004 plaintiff filed a formal request to have the proposed reprimand of May 14, 2004 and the admonishment of May 18, 2004 removed from her OPF. Plaintiffs Exhibit S — copy of email sent to Ms. Wright regarding removal of the May 14 and May 18, 2004 disciplinary actions and Ms. Wright’s email response. Ms. Janet McDonald was the Human Resources Liaison who advised plaintiffs supervisors regarding plaintiffs request to remove these disciplinary actions from her OPF. Gov. Exhibit P-1. Ms. McDonald advised management that if the purpose of the disciplinary actions were served, plaintiffs May 2004 reprimand and admonishment could be removed from her OPF; otherwise, management could deny her request and leave them in her OPF. Gov. Exhibit P-1. Ms. Wright decided to deny the plaintiffs request and leave the May 2004 reprimand and admonishment in the plaintiffs OPF. Ms. Wright believed that since the reprimand and admonishment were for failing to follow a direct order and tardiness, and the plaintiffs conduct had not changed since May 2004 in these areas, the purpose of the disciplinary actions (to change plaintiffs behavior) had not been served. Gov. Exhibit M-l, pgs. 10-11.

Termination from employment

On or about October 19, 2004 Bragg received a report from one of plaintiffs coworkers that plaintiff had been overheard threatening to kill Nordmoe. On October 20 and 21, 2004 Bragg interviewed the plaintiff and four (4) other employees. Plaintiff admitted to be extremely angry with Nordmoe over the denials of her leave requests, and that she had only stated that she wished she knew where Nordmoe lived so she could follow him home to talk to him. Gov. Exhibit N-l, pgs. 23-25. Information from plaintiffs co-workers indicated that plaintiff had made a threatening statement with regard to Nordmoe.

On December 22, 2004 plaintiff was notified that she was being proposed for removal from her employment for continuing unexcused tardiness and disrespectful conduct and disruption of the workplace. Gov. Exhibit X. The removal proposal highlighted the sixteen (16) instances of tardiness from October 15 through December 15, 2004; as well as the threatening statement towards Nordmoe made on October 19, 2004.

On December 23, 2004 plaintiff sent Nordmoe, late in the day, an email requesting additional down time for that day in order to fashion her response to the proposed removal. Nordmoe did not see the e-mail until the next day and then approved her request for six (6) hours of down time instead of the requested eight (8) hours. There was some confusion as to whether all of the down time requested was in connection with the proposed removal response, or whether two (2) of the hours were in connection with a prior approval by Nordmoe for union activities which was later denied by Bragg. Ultimately, the matter was cleared up, the two (2) hours of down time was restored for the union activities, and the entire eight (8) hours was approved for plaintiff to respond to the proposed removal. Gov. Exhibit H; Gov. Exhibit K, pgs. 18-21; Gov. Exhibit N-l, pgs. 6-8.

On February 9, 2005 Unterwagner, in writing, informed plaintiff that she was being removed from her employment with the VA, effective February 14, 2005. Unterwagner approved the proposal to remove plaintiff from her employment on the basis of her excessive unexcused absences/tardiness and for the disrespectful conduct and disruption of the workplace in connection with the verbal threat of October 19, 2004. Gov. Exhibit Y. Unterwagner believed that plaintiffs unexcused absences were excessive and removal was appropriate pursuant to the VA’s recommended penalty for excessive unexcused tardiness. Gov. Exhibit O, pgs. 21-22.

As the Human Resources Liaison officer, Ms. McDonald provided plaintiff with the required paperwork to apply for disability retirement. Gov. Exhibit P-2, pg. 26. Upon receipt of plaintiffs paperwork, Ms. McDonald noted that it was incomplete because plaintiff had not selected how she wanted her annuity paid nor had she designated a financial institution for direct deposit. In addition, plaintiff did not submit any physician statement to support her disability retirement claim. On February 23, 2005, Ms. McDonald sent the uncompleted application package back to plaintiff noting the areas that needed to be completed, and informed her that she needed to return the completed application within thirty-one (31) days of the date of her separation. Plaintiffs separation date was February 14, 2005, not the date of the notice of removal (February 9, 2005). Gov. Exhibit P-2, pgs. 26-28. If plaintiff did not return the completed application within the 31-day deadline, plaintiff would have to apply directly for disability retirement though the Office of Personnel Management, and not through the VA’s regional office. Ms. McDonald received plaintiffs completed application within the 31-day deadline, and it was processed according to VA policy and procedure. Gov. Exhibit P-2, pgs. 27-28.

Incident Regarding Handicap Parking Space

Plaintiff was allowed to park in one of two (2) handicapped parking spaces or in a shed adjacent to the building in which the VA Claims. Processing Center was located. These spaces are not reserved for any particular individual; i.e. the two (2) marked spaces were for the use of six (6) disabled employees on a first-come, first-served basis.

On April 13, 2004 one of the handicapped parking spaces was already occupied. Balke, the company that owned and managed the building that houses the VA Claims Processing Center, placed a construction cone in the open handicapped space in order to perform maintenance to the parking space; repair work on a concrete buffer at the front of the space. When plaintiff arrived late for work at approximately 10:00 a.m., she moved the cone and proceeded to park her van in the parking space. Upon request of Balke, Nordmoe told plaintiff to move her van to an available spot in the shed. Plaintiff refused. Gov. Exhibit H; Gov. Exhibit I, pgs. 18-24. Plaintiff was thereafter given a direct order by Carl Thunell (VA Regional Office Education Customer Service Chief in St. Louis, Missouri) and Ms. Wright to move her car. Plaintiff again refused, questioning the “motive” for having her move her car and demanding a written order or explanation regarding the removal of her car from the handicapped parking space. Gov. Exhibit H; Gov. Exhibit I, pgs. 18-24. Eventually, a compromise was reached and plaintiff was allowed to pull her car back from the front of the parking space sufficient for Balke to have access to the concrete barrier to do its repair work. Agency policy states that when a supervisor issues a direct order, it is not required to be in writing. Gov. Exhibit M.

On May 14, 2004, plaintiff was issued a proposed reprimand regarding her refusal to follow the direct orders of Thunell and Wright regarding moving her van from the handicapped parking space on April 13, 2004. On May 18, 2004 the proposed reprimand was made into a formal admonishment.

Promotion regarding Senior Veterans Claims Examiner

In the fall of 2004 plaintiff applied for a position as Senior Veterans Claim Examiner. Adam Giraudo, as the VA Human Resources Specialist, facilitated the promotion panel reviewing these applications. Giraudo removed the names from the applications so that panel members could not identify the applicants. Gov. Exhibit P-1, pgs. 19-22. Nordmoe was one of several members of the promotion panel reviewing and scoring the applications. Gov. Exhibit H. The panel members each assigned a numeric score to each applicant based on the applicant’s responses to a series of questions. Nordmoe’s role as a panel member was limited to scoring the sanitized applications based upon the applicants’ written answers to questions and their qualifications for the position. After the panel had scored the applications, the VA Human Resources Department tallied the applicants’ scores, ranked the applicants accordingly, and decided how may applicants were qualified to be interviewed for the promotion. Gov. Exhibit H; Gov. Exhibit P-1, pgs. 19-22. Specifically, Giraudo tallied the scores given by the panel members, and the Human Resources Department made the determination of who would be referred for selection. Plaintiff qualified but did not rank high enough to be referred for final consideration. Plaintiffs Exhibit FF (and CCC) — memorandum dated October 15, 2004 from Adam Giraudo.

Plaintiff’s Requested Accommodations

On December 27, 2004 plaintiff requested, in writing, that she be allowed to work a part-time schedule between the hours of 10:00 a.m. and 6:00 p.m., or that she be reassigned as a Senior Veterans Claims Examiner or similar GS-10 position due to her alleged disabilities of “spinal stenosis, degenerative arthritis, and dwarfism”. Gov. Exhibit Z. In her written request to Nordmoe, plaintiff contends that “[TJhis accommodation is necessary because my disability prevents me from arriving to work by 9:80 a.m. every day due to its effect on my ability to drive safely”. She further contends that her “disability” affects her life activities of walking and dressing and concludes that such interference “qualifies as a disability which is interfering with the performance of duties.” Gov. Exhibit Z. Further, plaintiff contends that “[I]n addition, you have provided me with numerous disciplinary actions involving my ‘ability to arrive at work on time’ which proves that my disability is indeed affecting my ability to perform my work.” Gov. Exhibit Z. Plaintiff gives no further explanation how any one of her referenced disabilities prevents her from being at work on time, or how working part-time will encourage her to be at work on time (even on a part-time schedule). Finally, plaintiff informs Nordmoe that she will be applying for “Federal disability retirement benefits”. Gov. Exhibit Z.

The Education Customer Service Center, where plaintiff worked, was and had always been staffed by full-time employees; it did not (during the relevant time-period) have part-time employees. Gov. Exhibit H. No employees in the plaintiffs division worked part-time because a part-time schedule would be counter-productive to the increase in workload due to prior staffing cuts and the need to maintain the VA’s national performance standard. Two employees, Jean Tobias and Kim Faulk, formerly worked part-time on the Claims Processing team (not the Customer Service team of which plaintiff was a member); however as workload increased, those part-time arrangements were terminated. There were no part-time employees in plaintiffs division as of June/July 2004. Gov. Exhibit N-l, pgs. 14-15.

On January 5, 2005 Janet McDonald, VA Human Resources Liaison, wrote the plaintiff regarding her December 27, 2004 accommodation request. Gov. Exhibit Z-1. Ms. McDonald acknowledged the plaintiffs request and the fact that no medical documentation was provided demonstrating a need for the requested accommodation. Ms. McDonald provided plaintiff with a detailed list of the information her office needed in order for management to “make a determination as to whether you are a qualified individual with a disability as defined by the Rehabilitation Act.” Gov. Exhibit Z-l.

On January 27, 2005 plaintiff responded to Ms. McDonald’s request for medical documentation supporting her accommodation request. Plaintiff was perturbed by Ms. McDonald’s letter and stated her belief that no further medical documentation was necessary.

“Please take particular note of the letter from Mr. Doug Smith dated September 6, 2001 indicating that since I had ‘already established my disability’, I' did not need to supply any further medical information to support my request for a reasonable accommodation. Since my disability has been established with the Department of Veterans Affairs since April 2000, I really did not see any need to put me through obtaining additional medical documentation’”

Gov. Exhibit Z-2. However, plaintiff did decide to provide “once again, a complete history of the documentation that the Department of Veterans Affairs should have already had on file for me, in addition to more recent medical evidence which indicates that my medical disabilities will not change in the near future.” Gov. Exhibit Z-2. Plaintiff attached to her January 27, 2005 response two (2) letters from health care providers. One (1) letter dated January 18, 2005 is from Marsha K. Mertens, M.D. In it, Dr. Mertens states:

“This letter is to confirm that Kathleen suffers from severe lumbar spinal steno-sis which causes pain and numbness if she sits for periods longer ■ than one hour. Please make Accommodations for her so that she is able to take brief breaks from her desk work.

I am also confirming that she was treated with hydroxyzine beginning 9/24/09 for a bite on her leg. This drug is quite sedating and likely contributed to her lateness in the month following.”

Gov. Exhibit Z-2. The other letter was from Donna Waldo, a nurse in the office of Robert F. Morgan, M.D. In this letter, Ms. Waldo states:

“Kathleen’s condition of vertigo, spinal stenosis, and dwarfism does not appear that it will change in the near future. Due to the vertigo the patient states she has, she wakes up dizzy and unable to drive. She states this interferes with her ability to dress, walk, and drive.”

Gov. Exhibit Z-2. Neither of the letters addresses plaintiffs dwarfism or explains, in medical terms, why plaintiff’s “disabilities” require her to work part-time or be reassigned to a Senior Veterans Claims Examiner position. Neither of the letters specifically identifies which of the plaintiff’s duties she is unable to perform due to her alleged “disabilities”. Neither of the letters provides any detailed description of the precise accommodation “recommended by your health care provider, including the basis of the recommendation and an explanation of how the proposed accommodation will allow you to perform the particular job duty at issue.” Gov. Exhibit Z-l, pg. 2.

On February 1, 2005 Bragg responded to the plaintiff’s reasonable accommodation request for a part-time work schedule or reassignment to a Senior Veterans Claim Examiner position. Gov. Exhibit Z-3. Upon review of the plaintiffs letter and her submitted medical documentation, Bragg denied the plaintiffs request in concluding:

“[Specifically, I could find nothing in the materials .you submitted demonstrating specific duties of your job that you are unable to perform as a result of your medical conditions. You also requested reassignment to Senior VCE position. I can not consider assigning you to a Senior VCE position because its journey-level grade is GS 11. Such an assignment must be filled competitively.

The medical statement from Dr. Mertens dated January 18, 2005 does recommend that Management allow you to ‘take brief breaks from her desk work’ but does not mention that you are unable to perform your duties as a result of the condition you cited. I have instructed your supervisor to work with you to determine the logistics necessary to facilitate you performing your duties without sitting for periods of longer than an hour.

In addition, I was unable to find anything in the medical information that you furnished suggesting the need for you to work part time to accommodate your medical conditions.”

Gov. Exhibit Z-3.

Bragg informed Nordmoe of management’s approval of accommodating plaintiffs back pain by allowing her to stand approximately 5-10 minutes for every hour sitting at her desk. Gov. Exhibit H; Gov. Exhibit N-l, pgs. 15-16. Nordmoe had no objection to this request; however, plaintiff never approached Nordmoe about implementing this accommodation. Gov. Exhibit H; Gov. Exhibit N-l; pgs. 16-17.

Despite plaintiffs attempt, via her amended response to the defendant’s summary judgment motion,, to modify her claims before the Court , the claims presently before the Court are as follows:

1) The VA subjected the plaintiff to disparate impact age discrimination because the late-shift employees on the Education Customer Service Team, of which plaintiff was a member, were over age 40 and were required to perform telephone client contact for 76.9 percent of their shift. Plaintiff contends that employees on the earlier shift only had to perform telephone client contact 62.5 percent of their shift. Plaintiff asserts that she was required to spend twenty (20) more hours of telephone work per month, for a total of 300 more hours, than employees on the earlier shift.

2) The VA subjected plaintiff to discrimination based upon her “disability” in that the VA:

A) failed to acknowledge plaintiffs disability on November 4, 2004;

B) failed to accommodate the plaintiffs disability by refusing to allow her to work part-time;

.C) failed to accommodate the plaintiffs disability by searching for available positions for reassignment and/or to inform her of two (2) vacancies;

D) failed to qualify plaintiff for an interview for a Senior Claims Examiner position for which she applied and refused to reassign plaintiff to that position when two (2) other employees in plaintiffs unit were reassigned;

E) refused to allow plaintiff to work overtime on January 15, 2005;

F) failed to implement the VA’s approved accommodation for her disability by allowing her to get up from her desk once an hour;

G) refused to accept plaintiffs medical documentation as proof of disability and need for accommodation;

H) charged plaintiff with being absent without leave (AWOL) instead of approving her sick leave and annual leave requests; and

I) refused to allow plaintiff to view time cards showing her AWOL charges.

3) Plaintiffs additional disability claims are related to alleged instances unrelated to her tardiness and promotion claims:

A) Plaintiffs supervisors threatened to have plaintiffs van towed from a handicapped parking space in the parking lot, and then charged plaintiff with insubordination for failing to move her car from the handicapped parking space; and

B) VA subjected the plaintiff to further disability discrimination when she was removed from employment and forced to apply for disability retirement.

4) Plaintiff was subjected to disparate treatment and harassment based on her disability because the VA granted three (3) other employees’ Family Friendly sick leave requests, while denying the plaintiffs Family Friendly sick leave requests.

5) VA employees retaliated against the plaintiff by:

A) charging her with AWOL on April 19, April 22, May 24, July 23, July 28, October 1, October 8, and November 12, 2004 (and other unspecified dates);

B) charging plaintiff with AWOL for time spent preparing EEO testimony; charging plaintiff with AWOL for performance of her union duties;

C) issuing incorrect telephone agent activity log reports to her;

D) meeting with the plaintiffs union steward without authorization from plaintiff or notice to her;

E) attempting to deny plaintiff eight (8) hours of time to respond to her proposed removal;

G) attempting to have plaintiff sign a letter of alternative discipline in order to avoid a three (3)-day suspension without pay; and

H) suspending plaintiff for fourteen (14) days.

6) The VA subjected plaintiff to a hostile work environment by:

A) issuing plaintiff a written counseling for plaintiffs use of approved leave;

B) calling plaintiff to over twenty (20) meetings in October 2004, preventing her from performing her job;

C) charging plaintiff with AWOL for arriving less than seven (7) minutes late to work or on-time to work;

D) disciplining plaintiff regarding her absences which led to her removal from employment;

E) refusing to remove records of disciplinary actions from plaintiffs personnel file;

F) denying requested sick leave or annual leave when plaintiff provided medical documentation;

G) intimidating plaintiff by revoking a previously approved change in core time;

H) subjecting plaintiff to intolerable working conditions prompting her request to be reassigned; and

I) refusing to reassign plaintiff and urging her to apply for disability retirement.

Summarily, plaintiff contends that the Merit Service Protection Board’s (MSPB) decision to uphold plaintiffs removal from employment was improper because it was not based on substantial evidence. She further contends that the VA refused to accommodate her alleged disabilities, in violation of federal law. She further contends that she was terminated from her employment due to her alleged disabilities, in violation of federal law. Finally, she contends that she was subjected to harassment on the job due to her alleged disabilities, in violation of federal law.

Judicial Review of “Mixed Case ” Discrimination Complaints

The MSPB determined that the decision to remove the plaintiff from her employment was proper due to the plaintiffs excessive tardiness and her threat of physical harm to a supervisor (disrespectful conduct). Plaintiff disputes arguing that this decision was improper because it is not based on substantial evidence to support such a decision. Defendant argues that the administrative record clearly shows substantial evidence supporting the MSPB’s final decision upholding plaintiffs termination from employment.

Federal law provides for judicial review of the MSPB’s final decision; 5 U.S.C. § 7703(a)(1) provides, in pertinent part:

“Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.”

When the MSPB decides a case involving both discrimination and non-discrimination claims (such as the present case), the district court has jurisdiction over the appeal from both types of claims. Mason v. Frank, 32 F.3d 315, 317 (8th Cir.1994); see also, Buck v. Internal Revenue Service, 2007 WL 2994445 (E.D.Mo.Webber, J.) aff'd 324 Fed.Appx. 540 (8th Cir.2009) cert. denied — U.S. -, 130 S.Ct. 644, — L.Ed.2d -, 2009 WL 3316343. In a mixed case review, “the adverse agency action is reviewed on the administrative record, while the discrimination claim is reviewed de novo.” Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir.1994); Mason v. Frank, at 317; Buck v. IRS, 2007 WL 2994445, *3; see 5 U.S.C. § 7703(c).

The scope of judicial review with respect to the non-discrimination claims in a mixed case is very narrow and limited specifically to review of the administrative record. Pursuant to § 7703(c)(l)-(3), the district court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions the court finds to be: 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; 2) obtained without procedures required by law, rule or regulation having been followed; or 3) unsupported by substantial evidence. Crawford, at 1340-41; Mason, at 317-18; Buck v. IRS, supra. “Judicial review of MSPB decisions is narrow in scope. We will affirm rational decisions to dismiss federal employees if applicable procedures were followed and substantial evidence supports the MSPB’s determination.” Buck v. IRS, supra (quoting Jones v. Farm Credit Administration, 702 F.2d 160, 162 (8th cir.1983)).

The Supreme Court has held that substantial evidence is “more than mere scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197-229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); NLRB v. La-Z-Boy Midwest, 390 F.3d 1054, 1058 (8th Cir.2004) quoting Consol. Edison Co. v. NLRB, supra. “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Ratliff v. Jefferson Pilot Financial Ins. Co., 489 F.3d 343, 346 (8th Cir.2007); see also, King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 999 (8th Cir.2005) citing Donaho v. FMC Corp., 74 F.3d 894, 900 n. 10 (8th cir.l996)(internal citations omitted). “Substantial evidence exists when ‘a reasonable mind might accept’ a particular evidentiaryrecord as ‘adequate to support a conclusion.’ ” Wal-Mart Stores, Inc. v. NLRB, 400 F.3d. 1093, 1097 (8th Cir.2005) citing Consol. Edison Co. v. NLRB, supra. Although substantial evidence is more than a mere scintilla, it is less than a preponderance. Ratliff, at 346 (internal citations omitted). Substantial evidence standard is deferential to the fact-finder. Credibility determinations are normally within the discretion of the ALJ hearing the case. Crawford, at 1341 citing Griessenauer v. Department of Energy, 754 F.2d 361, 364 (Fed.Cir.1985). Finally, the plaintiff (appellant) has the burden of proof, by a preponderance of the evidence, regarding any affirmative defenses. 5 C.F.R. § 1201.56(a)(2)(iii)(2005).

MSPB’s Decision re Excessive Tardiness

Using the standards articulated above, the Court finds that there was substantial evidence supporting the MSPB’s decision. Plaintiffs immediate supervisor, Scott Nordmoe, repeatedly observed tardiness problems with plaintiff. Nordmoe repeatedly counseled plaintiff as to her repeated tardiness but she continued to come to work late with a variety of excuses, the majority of which had no causal connection to her alleged disabilities. The ALJ reviewed thoroughly each of the sixteen (16) instances of tardiness between October 15 and December 15, 2004 and found substantial evidence to support the charge of tardiness and/or AWOL. The administrative record before the Court shows the following:

1) October 15, 2004 — plaintiff was tardy because she attended a meeting at her stepson’s school to sign paperwork despite the child’s father availability to sign the paperwork (which he apparently did);

2) October 19, 2004 — plaintiff was tardy due to a “headache” which she failed to document per her imposed leave restrictions-the physician’s statement of January 18, 2005 failed to specifically address this instance;

3) October 21, 2004 — plaintiff was tardy because she had to attend to “personal business” regarding her-residential telephone service;

4) October 25, 2004 — plaintiff was tardy because her alarm clock did not work due to an alleged power outage which she failed to document despite Nordmoe’s request to do so;

5) October 26, 2004 — plaintiff was tardy because of flooding in her home;

6) October 27, 2004-plaintiff was tardy because she was “too tired and exhausted to drive” allegedly due to the water in her home;

7) October 28, 2004 — plaintiff was late to work because she forgot to pick up her food while going through a McDonald’s drive-through and had to return to get it;

8) October 29, 2004 — plaintiff was late to work because of an alleged motor vehicle accident in which she failed to document despite Nordmoe’s request;

9) December 3, 2004 — plaintiff was tardy because there was a “bi-state bus incident” in which “ambulances were involved” that did not involve her motor vehicle; .

10) December 6, 2004 — -plaintiff was late to work'because she “lost track of time” while preparing her response “evidence for EEO testimony”;

11) December 7, 2004 — plaintiff was late to work but claims that she was only 6-7 minutes late as opposed to 15 minutes as noted by Nordmoe;

12) December 8, 2004 — plaintiff was tardy because she was again preparing for EEO testimony but failed to provide Nordmoe with any advance notice of EEO activities;

13) December 10, 2004 — plaintiff was tardy because she “was too tired - to drive safely” but failed to document any medical reason for her “tiredness”;

14) December 13, 2004 — plaintiff was late to work but only contested the amount of time she was late; ’

15) December 14, 2004 — plaintiff was late to work because of “heavy traffic”;

16) December 15, 2004 — plaintiff was late to work but only contested the amount of time she was late.

The ALJ found substantial evidence documenting a long history of tardiness predating the subject time-period which gave rise to plaintiff being repeatedly counseled by management as to the need for her to report to work on time. The ALJ found the denials of plaintiffs repeated requests for annual leave and/or sick leave to be reasonable under the circumstances of plaintiffs apparent inability to arrive to work on time. Plaintiff was given numerous chances to improve her attendance record but failed to do so.

As for the attendance issue, plaintiff continually argued that because she “was at work every day”, her leave requests should have been honored. However, the administrative record clearly shows that the problem was plaintiffs history of excessive tardiness and failure to comply with the conditions set by her leave restrictions. The Court concurs with the ALJ’s decision that all sixteen (16) instances as charged were supported by preponderant evidence. The ALJ’s decision was based on substantial evidence and was not arbitrary, capricious, or an abuse of discretion; therefore, the MSPB’s decision is upheld and defendant is entitled to summary judgment on this claim.

MSPB’s Decision re Disrespectful Conduct and Disruption of the Workplace

As to the charge of disrespectful conduct and disruption of the workplace, the Court finds that substantial evidence exists in the administrative record to support this determination. Plaintiff contends that there was no evidence that she ever threatened to physically harm Nordmoe. A review of the record before the MSPB shows there was substantial evidence that, if credited, supported the ALJ’s conclusion that plaintiff had threatened to harm or kill Nordmoe and was unfit for duty. See, Crawford v. Runyon, at 1341. The ALJ found two (2) witnesses statements regarding the plaintiffs subject comments to be credible, having found nothing in their testimony to indicate any motive to perjure themselves. The ALJ further found that Bragg’s investigation and testimony supported the witnesses’ testimony.

Plaintiff contends that she never specifically referred to Nordmoe, even assuming the comment was made. The ALJ found that Ms. Brown and Ms. Clark’s testimony clearly showed that plaintiff was angry with Nordmoe and was referring to him when she made the threatening remarks. Plaintiff further contends that assuming the comment was made, she only wanted to go to Nordmoe’s home to talk to him about her leave situation. The ALJ found plaintiffs testimony to lack credibility because of the adversary relationship between plaintiff and Nordmoe, that it was “extremely unlikely that any federal manager would agree to allow an angry employee to follow him home for government business relating to a ‘leave situation’ ”, and that plaintiff had plenty of opportunities to discuss her leave situation with Nordmoe while at work. Gov. Exhibit E, pg. 12. As stated before, credibility determinations are normally within the discretion of the ALJ who hears the case. Crawford v. Runyon, at 1341. The administrative record substantially supports the ALJ’s findings, and the ALJ’s decision was not arbitrary, capricious, or an abuse of discretion. The MSPB’s decision is upheld, and the defendant is entitled to summary judgment on this claim.

MSPB’s Decision re Removal

The MSPB’s decision upholding the plaintiffs removal as a penalty for excessive tardiness and poor workplace behavior (threat of physical harm to a supervisor) is supported by substantial evidence in the administrative record.

On December 22, 2004 plaintiff was notified, in writing, of the removal proposal. She was given notice of excessive unexcused tardiness (for the period of October 15, 2004 through December 15, 2004) and for disrespectful conduct and disruption of the workplace. Gov. Exhibit X. The ALJ not only reviewed in depth the stated sixteen (16) instances of tardiness set forth in the removal proposal, but also plaintiffs “extensive past disciplinary history” including, but not limited to, 1) an admonishment issued May 18, 2004; 2) a reprimand issued July 7, 2004; 3) a three-day suspension issued September 8, 2004; 4) a fourteen-day suspension issued November 10, 2004; and an admonishment issued November 16, 2004.

The ALJ further found Mr. Unterwagner’s testimony credible and supportive of the VA’s removal of plaintiff. Unterwagner testified that plaintiffs chronic tardiness and lack of dependability undermined the VA’s mission of providing reliable customer service to clients. Unterwagner further testified that he was extremely bothered by plaintiffs comments regarding a physical threat of harm to Nordmoe. He noted that plaintiff had been previously disciplined for disrespectful conduct towards Ms. Wright, and this instance of disrespectful conduct was an escalation because plaintiff was in direct daily contact with Nordmoe. Finally, Unterwagner testified that he considered plaintiff to have no rehabilitative potential because despite numerous counseling, admonishments, and suspensions, she was unwilling to change her behavior. He testified that her actions were “highly notorious” and “unprecedented within the workplace”. The evidence before the ALJ showed that “there is no similarly-situated employee with whom the appellant [Plaintiff] can be compared.” Gov. Exhibit E, pg. 19. Finally, the evidence before the ALJ showed no mitigating circumstances and no possible alternative disciplinary sanction. The MSPB’s decision is upheld and the defendant is entitled to summary judgment on this claim.

Plaintiff’s Discrimination Claims— Age Discrimination

As stated before, the plaintiffs discrimination claims -are subject to a de novo review by this Court. Plaintiffs discrimination claims are 1) disparate impact age discrimination; 2) disparate treatment disability discrimination; 3) disparate treatment disability discrimination-failure to accommodate; 4) retaliation; and 5) hostile work environment (presumably based on disability).

To establish a prima facie case of disparate impact under the ADEA, the plaintiff must identify a specific employment practice and then present statistical evidence of a kind and degree sufficient to show that the practice in question caused the plaintiff to suffer an adverse employment action because of his/her age. Equal Employment Opportunity Commission v. Allstate Ins. Co., 528 F.3d 1042, 1049 (8th Cir.2008); Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 953-54 (8th Cir.2001). A plaintiff falls short by merely alleging a disparate impact, or “pointing] to a generalized policy that leads to such an impact.” Meacham, et al. v. Knolls Atomic Power Laboratory, aka KAPL, Inc., 554 U.S. 84, 128 S.Ct. 2395, 2405, 171 L.Ed.2d 283 (2008) quoting Smith v. City of Jackson, Mississippi, 544 U.S. 228, 241, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). The plaintiff must isolate and identify the specific employment praetiee(s) that are allegedly responsible for the asserted statistical disparities. Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. at 2405-06; City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536 (emphasis added). The reason for the requirement to isolate and identify a specific employment policy or practice is to avoid the “result [of] employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances.’ ” Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. at 2406 quoting City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536 (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989)). Identifying a specific practice is “not a trivial burden”. Meacham, 128 S.Ct. at 2406.

In the present case, plaintiff contends that the persons working the “late shift” (the shift she was working during the relevant time-period) were required to work more hours on the phones than employees on the earlier work shift, and that the majority of the late shift workers were over the age of 40. Plaintiff contends that she was “forced” to work the late shift because she did not request to work the late shift, and another employee was ruled ineligible for promotion because he could not work the late shift. Defendant VA contends that employees were allowed to choose their work schedules, and that plaintiff did request to work the late shift. Defendant further contends that all employees on the Education Customer Service team had the same amount of telephone claim work requirement during their shift; i.e. -5.5 hrs. each 8-hr work shift.

Plaintiffs claim for disparate impact age