837 F2d 1096 Marotta v. Department of Health and Human Services

837 F.2d 1096

Leonard J. MAROTTA, Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

No. 87-3511.

United States Court of Appeals, Federal Circuit.

Dec. 9, 1987.

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

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

PER CURIAM.

DECISION


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1

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

2

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.

3

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).

4

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