Brenda J. Stephens, Petitioner, v. Department of the Army, Respondent, 988 F.2d 131 (Fed. Cir. 1993)

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U.S. Court of Appeals for the Federal Circuit - 988 F.2d 131 (Fed. Cir. 1993) Jan. 28, 1993

MSPB

AFFIRMED.

Before RICH, PAULINE NEWMAN and RADER, Circuit Judges.

DECISION

PER CURIAM.


Brenda J. Stephens (Ms. Stephens) seeks review of the April 2, 1992 decision of the Merit Systems Protection Board (Board), Docket No. DC0752920140I-1, affirming the Department of the Army's (Agency) decision to remove Ms. Stephens from her position as a military personnel staffing technician based on charges brought against her by the Agency. We affirm.

DISCUSSION

Ms. Stephens was removed from her employee position based on several charges including disobedience of a superior's orders, defiance of authority, disrupting the workplace, and failure to follow regulations and office procedures, and because the removal penalty was reasonable, in view of Ms. Stephens's disciplinary history. The Administrative Judge (AJ) determined that the Agency, by a preponderance of the evidence, established the above-mentioned charges against Ms. Stephens.

The AJ heard the testimony of Ms. Stephens and several other witnesses. After hearing all the testimony, the AJ made credibility determinations adverse to Ms. Stephens. Such credibility determinations are virtually unreviewable, Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986), and "will not be disturbed unless it is 'inherently improbable or discredited by undisputed fact or physical evidence.' " Carosella v. United States Postal Service, 816 F.2d 638, 641 (Fed. Cir. 1987) (citation omitted).

We may set aside the Board's decision only if we find it to be (1) arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). We see no such error here and, accordingly, affirm.