Leonard J. Marotta, Petitioner, v. Department of Health and Human Services, Respondent, 837 F.2d 1096 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 837 F.2d 1096 (Fed. Cir. 1987) Dec. 9, 1987

Before MARKEY, Chief Judge, PAULINE NEWMAN, and ARCHER, Circuit Judges.

PER CURIAM.


DECISION

The decision of the Merit Systems Protection Board, MSPB Docket No. NY07528610488, sustaining the agency's suspension of petitioner Leonard J. Marotta, is affirmed.

OPINION

Mr. Marotta was suspended for forty days from his position as Field Representative with the Melville, New York district office of the Social Security Administration, for sexual harassment of a female Supplementary Security Income beneficiary. The board upheld the suspension based on testimony of the beneficiary and others, including petitioner's supervisor.

The issue turns solely on the credibility of the witnesses, a matter that is "virtually unreviewable" by an appellate tribunal. Hambsch v. Dept. of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).

There was substantial evidence supporting the board's decision. The penalty imposed was not an abuse of discretion. 5 U.S.C. § 7703(c). The decision is affirmed.