Zingher v. Dept. of Aging and Disabilities

ZINGHER_V_DEPT_OF_AGING_DISAB.94-175; 163 Vt 566; 664 A.2d 256

[Filed 16-Jun-1995]


NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 


                                 No. 94-175


Robert Zingher                                    Supreme Court

                                                  On Appeal from
    v.                                            Human Services Board

Department of Aging and                           March Term, 1995
  Disabilities


Theodore C. Kramer, Chair

Richard J. Whitaker, Vermont Protection & Advocacy, Montpelier, for
plaintiff-appellant 

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. McShane,
Assistant   Attorney General, Waterbury, for defendant-appellee 


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     JOHNSON, J.   Petitioner appeals from a decision of the Human Services
Board, claiming the board erred in concluding that the services provided to
him by the Division of Vocational Rehabilitation complied with the
Rehabilitation Act, 29 U.S.C.  701-797, and with a previous order of the
board.  We affirm. 

     Petitioner received a master's degree in business administration in
1987.  He also passed an examination to be certified as a public accountant
but has been unable to obtain employment to fulfill the two-year internship
requirement. Petitioner is a disabled individual, who had been diagnosed with
a learning disability, dysthymia and obsessive-compulsive personality
disorder, hypertension, obesity and noninsulin-dependent diabetes. As a
result of his disabilities, petitioner required five years to complete his
master's degree and twice the usual amount of time to complete the public
accountant exam. 

     Petitioner applied for the services of the Vermont Division of
Vocational Rehabilitation in April 1990.  The division determined that he was
eligible in October 1990 and provided 

  

petitioner with a rehabilitation plan.  Petitioner rejected this plan because
it did not provide remedial services for his learning disability, adaptive
equipment he feels necessary to obtain employment, or sufficient assistance
with job placement.  He appealed to the Human Services Board.  The board
concluded that the plan was inadequate and remanded the case to the division
to amend the plan by (1) accurately describing petitioner's learning
disability and the impact it has on employment; (2) offering services to
remedy limitations caused by the learning disorder; (3) offering placement
services with greater counselor assistance; and (4) assigning a counselor
knowledgeable in learning and emotional disorders.  The board denied
petitioner's request for specific computer equipment, estimated to cost
$40,000, because petitioner failed to show that it was necessary for him to
obtain and retain employment. 

     Following the board's order, the division assigned an experienced
vocational rehabilitation counselor and an accommodation team composed of
experts in computer technology, learning disabilities and accounting.  It
also amended the plan to include an overview of petitioner's learning
disability, personality disorders and medical problems.  The new plan
provided for psychological counselling, neurolinguistic sessions, interview
training, job placement and job follow-up.  Petitioner signed the new plan
with several noted reservations. 

     Between July 1992 and April 1993, petitioner received ten sessions of
neurolinguistic training, ten sessions of psychological counselling, and
forty-five hours of counselling on interview techniques and resume writing. 
In addition, the division hired a computer expert to evaluate petitioner's
need for compensatory hardware and software.  The expert concluded that
computer hardware and software should not be purchased until petitioner
obtained employment because the compensatory equipment would need to be
tailored to the individual job site.  He also recommended training and
practice on the software that petitioner already owns because petitioner
seemed unaware of its capabilities.  Finally, the expert warned against
purchasing additional software, which would require more learning time and
increase petitioner's stress level. 

  

     In February 1993, petitioner began volunteer work as an accountant with
a small business.  At that time, the division paid for a vision exam,
eyeglasses, work clothes and shoes for him.  In early April 1993, the owner
of the business hired petitioner as an accountant and financial manager.  The
division then assigned an experienced vocational evaluator to determine the
compensatory equipment and services necessary for petitioner to retain the
position.  The evaluator determined that petitioner had difficulty with
interpersonal relations; thus, the division provided ten more sessions of
neurolinguistic training. 

     At the end of April, the computer expert met with petitioner, his
employer and the site evaluator to determine petitioner's equipment needs. 
The computer system of the business was at that time inadequate, and the
employer was developing a plan to purchase a new system.  On May 25, 1993,
the expert submitted a report detailing the standard accounting hardware and
software the employer was to provide and recommended that the division
purchase compensatory equipment compatible with the job site and the new
system to be purchased by the employer. Petitioner had some objections to the
report, and a revised report was issued June 16, 1993. 

     The division attempted to set up a meeting with the employer to ensure
that he intended to purchase the computer system compatible with the
compensatory equipment requested. Petitioner objected to the meeting because
he felt that the employer knew nothing about computers.  The meeting was
therefore delayed until July 8, 1993. Thereafter, the compensatory equipment
was ordered; however, the record does not indicate whether the employer
purchased the new computer system or what specific compensatory equipment the
division ordered. 

     On July 22, 1993, petitioner returned to work after a brief absence. 
The compensatory equipment was expected by the end of the week, but
petitioner was dismissed from his position and the order was cancelled.  The
employer indicated that he dismissed petitioner because petitioner's
financial vision was "too high powered for a small business."  He explained
that petitioner wanted to conduct financial analyses that required equipment
too expensive for the 

  

business to purchase and unnecessary for financial success. 

     Petitioner filed a grievance with the board, alleging that the division
had failed to implement the board's first order.  The board dismissed the
grievance as unfounded and petitioner appeals, alleging the board erred by
failing to apply the standard set forth in 29 U.S.C.  701, and by failing
to enforce its previous order. 

                                I. 

     Before reaching the merits of petitioner's claim, we address the
division's argument that res judicata bars relitigating the necessity of
purchasing computer equipment prior to petitioner obtaining a position.  The
division maintains that the board determined in its first order that
petitioner had failed to show that computer equipment was necessary for him
to obtain or retain employment, that petitioner failed to appeal this
conclusion, and that petitioner is therefore precluded from relitigating this
issue. 

     "The doctrine of res judicata provides that a valid and final judgment
in favor of one party bars another action by the other party on the same
claim."  Delozier v. State, 160 Vt. 426, 429, 631 A.2d 228, 229 (1993).   Res
judicata applies to final determinations by an administrative agency acting
in a judicial capacity.  See id., 631 A.2d  at 230.  It is not, however,
applicable here.  In its first order, dated March 26, 1992, the board
concluded that "petitioner's request that he be granted specific computer
equipment and remedial courses totalling about $40,000.00 should be denied at
the present time because the petitioner has yet to show that any of those
services are necessary to his obtaining and retaining employment." (Emphasis
in original.)  The plain language of the order leaves open the possibility of
reviewing the matter again and is, therefore, not a final agency
determination. 

     Moreover, after the board issued the first order, the division reviewed
previous diagnostic information regarding petitioner's learning disability,
revised the rehabilitation plan to include an accurate description of the
learning disability and consulted with an expert on learning disabilities. 
In addition, the division consulted with experts in accounting and computers.
 As 

  

a result, there was significantly more information available on the issue of
petitioner's need for computer software and hardware at the time of the
second hearing.  Finally, as the computer expert noted, the quality and
capabilities of computer equipment increase rapidly and the cost of equipment
decreases over time.  All of these facts indicate that it is inappropriate to
apply res judicata to this claim. 

                                II. 

     In reviewing the merits of a case appealed from the Human Services
Board, we will not set aside findings unless clearly erroneous, see Hall v.
Department of Social Welfare, 153 Vt. 479, 486, 572 A.2d 1342, 1346 (1990),
and we give deference to a determination of the board within its area of
expertise.  See In re Bushey-Combs, 160 Vt. 326, 329, 628 A.2d 541, 543
(1993). Petitioner's two main arguments are: (1) the failure to provide
petitioner the computer hardware and software that he requests, absent a
specific job site, violates 29 U.S.C.  701; and (2) the failure to provide
petitioner the computer software and hardware in a timely fashion after he
obtained employment violated the board's first order. 

                               A. 

     The purpose of the Rehabilitation Act is "to empower individuals with
disabilities to maximize employment, economic self-sufficiency, independence,
and inclusion and integration into society."  29 U.S.C.A  701(b)(1) (West
Supp. 1995).  The Rehabilitation Act authorizes grants to states to provide
vocational rehabilitation to individuals with disabilities.  Buchanan v.
Ives, 793 F. Supp. 361, 363 (D. Me. 1991).  State participation is voluntary,
but those states choosing to participate must comply with federal
regulations.  Id.  The purpose of the vocational rehabilitation program of
the Act is to assist states in providing "services for individuals with
disabilities, consistent with their strengths, resources, priorities,
concerns, abilities, and 

  

capabilities, so that such individuals may prepare for and engage in gainful
employment."  29 U.S.C.A.  720(a)(2) (West Supp. 1995).(FN1)  The scope of
vocational services provided is defined in 29 U.S.C.A.  723(a) (West Supp.
1995), which states: "Vocational rehabilitation services provided under this
chapter are any goods or services necessary to render an individual with a
disability employable." (Emphasis added.) 

     Petitioner maintains that the division refuses to provide assistance
prior to petitioner obtaining employment and refuses to provide the computer
hardware and software, and extended counselling, that would greatly enhance
his employability.  The record does not support petitioner's first claim. 
Substantial services were provided prior to his employment, including
neurolinguistic training, psychological counselling, and interview and
resume-writing training. The essence of petitioner's second claim is that his
employability will only be "maximized," consistent with the purpose of the
Rehabilitation Act, if he is able to offer a potential employer at the
initial interview the comprehensive computer system he requests.  Indeed, the
central dispute in this case is whether the division is required to provide
petitioner with the basic computer equipment necessary to an accountant plus
the compensatory equipment necessary for petitioner to use it or only the
compensatory equipment compatible with an accounting system running in his
place of employment. 

     We disagree with petitioner that, the statement of purpose of the
Rehabilitation Act requires the division to "maximize his employability," id.
 701(b)(1), without regard to financial considerations.  The case on which
petitioner relies states that it is appropriate to consider cost in providing
services in an efficient manner once the client's goals have been defined. 
See Buchanan, 793 F. Supp.  at 364.  Petitioner has presented no evidence to
refute the 

  

computer expert's conclusion that it is appropriate to defer purchasing
computer equipment until there is a specific work site.(FN2)  Although the
computer system requested may enhance petitioner's employability, petitioner
has not shown that such a system is necessary for him to be employed. See 29
U.S.C.A.  723(a) (requiring division to provide goods and services
necessary to render individual with disability employable). 

     We uphold the board's determination that it is appropriate for the
division to provide compensatory equipment in the context of a specific job
site.  Without knowing the equipment the employer already has in place, the
space petitioner will occupy, and the specific duties assigned, the division
cannot assess the compensatory equipment necessary for petitioner to do the
job.(FN3)

                                B. 

     Petitioner next argues that the division failed to provide compensatory
computer software and hardware after he obtained employment and thereby
violated the board's first order.  He maintains that he was employed for five
months and never received the equipment he needed to retain the position. 
Although petitioner is correct that he did not receive any computer equipment
during the five-month period of employment, the record establishes that (1)
he was not dismissed because the division failed to provide adequate support
but rather because his employer did not agree with his financial vision for
the business, and (2) the division was not entirely at fault for the
equipment delay. 

     The lengthy delay in ordering equipment was due in part to the
employer's uncertain plan to obtain a new computer system and the division's
desire to ascertain the new system prior to purchasing compensatory
equipment.  Petitioner caused further delay because he objected to the 

  

meeting with his employer intended to ensure that the employer was committed
to purchasing the new system.  Finally, we note that no finding was ever made
that the employer purchased the new system. The length of the division's
delay in delivering petitioner's equipment should be measured from the time
the employer acquired the new system for which the compensatory equipment was
required.  The findings are inadequate to make this determination. 

     Nonetheless, we agree with petitioner that equipment necessary for
petitioner to do the job must be provided promptly.  It took a full month
after petitioner began as a paid employee before the computer expert met with
him, and then nearly another month before the expert issued the report to
which petitioner objected.  Any delay in obtaining equipment necessary for
petitioner to do the job will jeopardize a position he succeeds in securing. 

     Finally, petitioner argues that the board erred in relying on testimony
presented by the division indicating that it had spent far more on services
for petitioner than it ordinarily provides to a vocational rehabilitation
client.  The finding to which petitioner objects states:  "The Department
has, to date, spent over $6,000.00 to purchase services and goods under the
[revised plan], and has waived its usual limits, at times, when necessary." 
We find no error.  The testimony refuted petitioner's assertion that he had
received no services to realistically compensate him for his disabilities
prior to or after obtaining employment, and the finding counters petitioner's
assertion that the division's only concern is cost.(FN4)

 

     Affirmed.

                                   FOR THE COURT:



                                   ___________________________
                                   Associate Justice




FN1.  Petitioner quotes from a superseded statute, which stated that the
purpose of the federal grants was "to assist States to meet the current and
future needs of individuals with handicaps, so that such individuals may
prepare for and engage in gainful employment to the extent of their
capabilities."  29 U.S.C.  720(a) (1988) amended by Rehabilitation Act
Amendments of 1992, Pub. L. No. 102-569,  121, 106 Stat. 4344, 4365-67
(1992) (emphasis added by petitioner). 

FN2.  Petitioner estimated the cost of the equipment to be $30,000 at the
time of the first hearing and between $10,000 and $20,000 at the time of the
second hearing. 

FN3.  A comprehensive accounting computer system, such as petitioner
requests, is consistent with the goal of self-employment, which has never
been the goal of petitioner's rehabilitation plan. 

FN4.  Petitioner also argues that the division improperly relied on the
employer's obligation to make reasonable accommodations for an employee with
a disability under the Americans with Disabilities Act (ADA).  See 42 U.S.C.A
 12101-12213 (West Supp. 1995).  He maintains that the division is not
relieved of its statutory duty to provide necessary goods and services where
the ADA requires an employer to make reasonable accommodations.  We do not
reach this issue.  Neither the record, nor the findings support petitioner's
contention that the division denied any specific equipment or service because
it expected the employer to provide it pursuant to the ADA.