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Gellerman v. Nimmo

April 11, 1983


Petition for Review of an Order of the U.S. Merit Systems Protection Board.

Author: Cudahy

Before CUDAHY and ESCHBACH, Circuit Judges, and KELLAM, Senior District Judge.*fn*

CUDAHY, Circuit Judge. Petitioner James R. Gellerman was removed from his position as a Counseling Psychologist for the United States Veterans Administration ("V.A.") in October 1980 on the grounds that his counseling was inadequate and his relationships with staff members were not professional and harmonious. He requests review of the United States Merit Systems Protection Board ("MSPB") decision affirming his removal. Gellerman challenges the evidence supporting his removal and raises issues of due process. We affirm.


Petitioner Gellerman was employed beginning April 1978 as a counseling psychologist for the V.A. at its guidance center on the campus of the Wisconsin State University -- Stout, located in Menomonie, Wisconsin. On April 21, 1980, Gellerman was warned in writing by his supervisor, Terrence Collins, that he was not performing adequately in his position and that he would have sixty days to improve his work to meet performance standards. This improvement period was later extended through August 1, 1980. By a letter dated September 5, 1980, Gellerman was notified that he would be removed because of unsatisfactory performance. After the V.A.'s Regional Director sustained the removal, Gellerman appealed to the MSPB and a hearing was held on January 20-21, 1981. The presiding officer issued a thorough opinion finding that the removal was justified. The MSPB thereafter denied review, in a written decision, on June 17, 1982.


Our first concern is whether the MSPB findings that supported the removal action are supported by substantial evidence.*fn1 5 U.S.C. § 7703(c)(3). See Gipson v. Veterans Administration, 221 U.S. App. D.C. 55, 682 F.2d 1004, 1008 (D.C. Cir. 1982).We do not conduct a de novo review but rather determine whether there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Brewer v. United States Postal Service, 227 Ct. Cl. 276, 647 F.2d 1093, 1096 (Ct. Cl. 1981), cert. denied, 454 U.S. 1144, 71 L. Ed. 2d 296, 102 S. Ct. 1005 (1982).

Gellerman's firing was based upon two charges: (1) inadequate counseling performance and (2) failure to maintain professional, harmonious relationships with guidance center staff. We find that both charges are supported by substantial evidence. The Board's presiding official, who conducted the hearing, based his decision on charge one both on the results of a numerical rating system and other evidence of performance deficiencies such as evidence of the "results" of Gellerman's counseling and testimony of a psychologist who worked with Gellerman. See Presiding Official's Decision at 9-10. Gellerman challenges the validity and application of the ratings system, claiming in essence that it did not yield credible evidence of performance deficiencies. The presiding official and the MSPB, however, found the system was adequate and petitioner's arguments here do not persuade us that we can say as a matter of law that the ratings could not be relied upon by the V.A. or the MSPB.

As for charge two, failure to maintain professional, harmonious relationships with the Veterans Administration guidance center staff, this is supported by a letter from John Wesolek, the director of the University of Wisconsin -- Stout Vocational Development Center to which the appellant was attached. In his letter, Wesolek stated:

I have some strong reservations about the capabilities of your assigned Counseling Psychologist, Mr. Gellerman. It is my opinion that he has limited effectiveness as the coordinator of the counseling unit. Since his arrival, I have been relating to you my observations of his lack of professional competency and behavior. At your suggestion, Mr. Kirsling, our staff psychologist, cooperated in a shared critiquing of case sessions with him. Jerry cited a number of problem areas at that time and Mr. Gellerman has not demonstrated any marked improvement to date. I have also observed and have had reported to me numerous problems in his coordinating the intake and processing of VA cases and in communicating with VDC staff, primarily secretarial personnel. I have had many discussions about these problem issues with Jim. Although he has made some improvement, I would rate his overall handling of problem situations as inadequate. I also feel that his demeanor and dress are limiting factors in the professional handling of his job role. It is my opinion that Mr. Gellerman has had a negative impact on the reputation of the VDC and has limited the overall functioning of the VA Counseling Unit. I feel it would be a more organized and productive operation with another person assigned as the unit coordinator.

Record at 206-07 (emphasis supplied). Gellerman does not challenge the substance of the letter but instead argues that it cannot be used to support the second charge because its author was not the appropriate person to register a complaint about petitioner's professional relationships with guidance center staff. We will consider this argument in the section that follows.


Our second concern is whether the V.A. and MSPB procedures were correct. 5 U.S.C. § 7703(c)(2). See Doyle v. Veterans Administration, 229 Ct. Cl. 261, 667 F.2d 70, 72 (Ct. Cl. 1981). Gellerman first argues that he did not receive a "reasonable and fair opportunity to improve" as prescribed in the V.A. Personnel Manual. The April 21 warning letter informed Gellerman "you will be given sixty days from the date you receive this letter to improve your work to meet your performance standards." A second letter extended the improvement period to August 1, 1980. Gellerman's complaint is that because the agency evaluated his work during the period up to August 1, used these "improvement period" evaluations to justify discharging him and did not evaluate him after August 1, he was effectively denied his opportunity to improve.

The facts rebut petitioner's claim that he had no reasonable and fair opportunity to improve. He was evaluated during fifteen counseling sessions over several months following the April 21 warning letter. The presiding officer compared the ratings achieved by the appellant in the first six sessions reviewed between April 21 and 24 and the last four sessions reviewed on July 23 and 24 and found "no appreciable improvement towards the minimum standard of performance" during this period. Gellerman did not satisfy the performance standards in April, in June, or in late July. See Record at 13-14. Moreover, the second warning letter clearly informs Gellerman that the evaluations "will be considered along with all other available information in deciding whether any adverse action will be taken at the end of the 60 days." (Emphasis supplied).*fn2 Finally, we do not think the fact that the last evaluation occurred a week before the end of the improvement period constitutes a denial of petitioner's reasonable and fair opportunity to improve. Though ...

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