Yochim v. Gargano

• Decision Date: 26 September 2012
• Docket Number: Case No. 1:11–cv–01656–TWP–DML.
• Citation: 882 F.Supp.2d 1068
• Parties: Arthur YOCHIM, Plaintiff, v. Michael GARGANO, Indiana Family and Social Services Administration, Douglas Elwell, Division of Disability and Rehabilitative Services, Nancy Zemaitis, Bureau of Rehabilitation Services/Vocational Rehabilitation Services, Defendants.
• Court: U.S. District Court — Southern District of Indiana

882 F.Supp.2d 1068

Arthur YOCHIM, Plaintiff,

v.Michael GARGANO, Indiana Family and Social Services Administration, Douglas Elwell, Division of Disability and Rehabilitative Services, Nancy Zemaitis, Bureau of Rehabilitation Services/Vocational Rehabilitation Services, Defendants.

Case No. 1:11–cv–01656–TWP–DML.

United States District Court,

S.D. Indiana,

Indianapolis Division.

March 23, 2012.

Order Denying Motion to Alter or Amend Judgment Sept. 26, 2012.

Gregory P. Care, Sharon Krevor–Weisbaum, Brown, Goldstein & Levy, LLP, Baltimore, MA, Thomas E. Crishon, Indiana Protection & Advocacy Services, Indianapolis, IN, for Plaintiff.

Jefferson S. Garn, Laura Lee Bowker, Indiana Attorney General, Indianapolis, IN, for Defendants.

ENTRY ON PRELIMINARY INJUNCTION

TANYA WALTON PRATT, District Judge.

This matter comes before the Court on Plaintiff Arthur Yochim's (“Mr. Yochim”) Motion for Preliminary Injunction. Mr. Yochim, a 59 year old Indiana citizen, has been blind since birth due to a condition called retinopathy. Since moving to Indiana in 2007, Mr. Yochim has been a client of the Indiana Family and Social Services Administration (“FSSA”), the Division of Disability and Rehabilitative Services (“DDRS”), and the Bureau of Rehabilitation Services/Vocational Rehabilitation Services (“VRS”). These entities, and their directors or secretaries, are the Defendants in this matter (collectively, “Defendants”). After growing dissatisfied with the quality and quantity of the vocational services he was receiving in Indiana, Mr. Yochim requested that the DDRS send him to an out-of-state service provider—specifically, the Colorado Center for the Blind. On December 16, 2011, after the DDRS denied this request and an impartial hearing officer affirmed that decision, Mr. Yochim brought a lawsuit in this Court under Title I of the Rehabilitation Act. On February 6, 2012, Mr. Yochim filed the present Motion for Preliminary Injunction. The Court presided over oral arguments on the motion on March 8, 2012.

To be sure, the Court is less than thrilled with the services provided by Defendants to date. That said, the remedy Mr. Yochim seeks—requiring Defendants to send Mr. Yochim to the Colorado Center for the Blind—is truly extraordinary, if not unprecedented. Indeed, neither Mr. Yochim's counsel nor the Court was able to locate a single Title I case where a federal court reversed a hearing officer's decision and ordered a state agency to send a plaintiff to a different vocational facility, let alone an out-of-state facility. Applying the relevant law, the Court simply cannot find that a preliminary injunction is warranted. Plaintiff's motion (Dkt. 26), while brought for understandable reasons, is DENIED.

I. FACTUAL BACKGROUND

Mr. Yochim grew up in Miami, Florida. His father encouraged him to be independent, whereas his mother performed many daily tasks for him. Although undoubtedly done out of love, her insistence on helping Mr. Yochim, to some degree, hampered his independence. That said, it is worth emphasizing that Mr. Yochim, on his own, has achieved remarkable accomplishments throughout his life. In 1971, Mr. Yochim graduated from public high school; in 1973, he graduated from Miami Dade Junior College with an Associates Degree; and in 1976, he graduated from the University of South Florida with a BA degree in political science. While at South Florida, Mr. Yochim lived in the dorms, ate meals in the cafeteria, provided for his own daily needs and desires, and successfully completed his classes. After earning his BA, Mr. Yochim lived with his mother in Miami, Florida, where he worked for 28 years in the private sector handling telephone sales accounts for a company that sold cleaning supplies. His responsibilities included maintaining and servicing existing accounts and taking orders over the telephone. To commute to work, Mr. Yochim used the bus and paratransit. As Mr. Yochim testified at the administrative hearing, he has “never let blindness stop [him] from accomplishing life's goals.” Mr. Yochim currently receives SSDI and Medicare.

In early 2007, due to his mother's declining health, Mr. Yochim and his mother moved to Plainfield, Indiana and took up residence with Mr. Yochim's sister and her husband. Soon thereafter, Mr. Yochim sought out vocational training from DDRS, which was able to immediately certify him as eligible to receive vocational rehabilitation since he received SSDI. Specifically, DDRS referred Mr. Yochim to Bosma Enterprises for the Blind (“Bosma”) for orientation,mobility, and home skills training. Initially, Melanie Wells served as Mr. Yochim's vocational rehabilitation counselor at DDRS, but she then took a job with Bosma. Subsequently, Loretta Kipasa (“Ms. Kipasa”) served as Mr. Yochim's vocational rehabilitation counselor until retiring in December 2010. Ms. Kipasa had considerable experience working with the blind and visually impaired.

Around August 16, 2007, Ms. Kipasa met with Mr. Yochim, who chose a vocational goal of “telephone work,” but only in or around Plainfield, Indiana. Ms. Kipasa suggested that Sycamore Services (“Sycamore”), located in Plainfield, Indiana, would be convenient as a service provider for his job preparation. Mr. Yochim agreed to use Sycamore. According to David Heard (“Mr. Heard”), the supervisor at DDRS, “Sycamore ... would provide the job skills, Bosma would provide the at-home skills that he would need.” Notably, Sycamore had never previously dealt with a blind client; instead, they had largely worked with the hearing impaired, individuals with cerebral palsy, and the mentally challenged. Ms. Kipasa did not inform Mr. Yochim that he would be Sycamore's first blind client.

On September 27, 2007, Bosma issued a “Teaching Plan” concluding that Mr. Yochim “lacks the skills and equipment to perform daily living skills independently.” On October 15, 2007, Sycamore, after evaluating Mr. Yochim, created a Plan for Employment and Supports (“PES”). The PES is then used to make an Individualized Plan for Employment (“IPE”). The PES stated that Mr. Yochim is totally blind, has a Bachelors degree, receives Medicare and SSDI, has over 25 years experience in telephone sales, and seeks a wage of $8.00 per hour for 20 hours of work per week. The PES concluded:

Arthur will need assistance filling out applications and practice interviewing for a job. He will also need transportation using LINK Hendricks County services and on-site job coaching through first 90 days. Assistive technology to be determined.

On October 18, 2007, Ms. Kipasa noted in her Case Activity Report that she had met with Mr. Yochim to discuss his PES. At this time, Mr. Yochim reported no problems with his services. He further stated he wanted to do an independent job search in addition to the services he was receiving at Sycamore. To that end, Mr. Yochim would need access to a computer. The report noted that Mr. Yochim had a computer and is able to use a standard keyboard, but is unfamiliar with the command keys and numbers pad. The report further noted that Mr. Yochim has requested computer training. Therefore, Ms. Kipasa added a computer assessment and training to the IPE.

In October 2007, Mr. Yochim ratified his IPE, which provided an employment outcome of Sales Representative, telephone services. The original IPE projected an achievement date of April 30, 2008. However, during the 2008 annual IPE review, the completion date was extended to October 30, 2010. Mr. Yochim continued some orientation and mobility classes at Bosma and worked with Sycamore in various learning activities, including job readiness skills, resume preparation, job interview preparations, and potential employment appointments with churches and other entities in or around Plainfield, Indiana.

Throughout 2008, Kathryn Henry (“Ms. Henry”) detailed Mr. Yochim's progress on the computer and how Mr. Yochim frequently called her with questions. Indeed, the case notes suggest that he was an “eager student.” On August 25, 2008, Ms. Kipasa noted that she had received Ms. Henry's final report on Mr. Yochim and that his goals had been accomplished. Ms. Kipasa further noted “[n]o additional training at this time unless it is job-specific, and then will evaluate situation.” Unfortunately, similar progress was not being made at Sycamore. On September 11, 2008, Burt Eichen (“Mr. Eichen”), Mr. Yochim's employment counselor at Sycamore, wrote Ms. Kipasa the following:

He is very impatient, but lives in an area that currently has no reliable transportation. He also wants to work part time instead of full time. I feel that he is capable of working full time and getting off benefits, but that is not his plan.... When I totaled my car a few months ago and was out with a broken shoulder, this was unacceptable to him.

Nonetheless, on October 29, 2008, Ms. Kipasa noted in her Case Activity Report that she, Mr. Yochim, and Mr. Eichen met “to update/review [Mr. Yochim's] IPE and to ensure that all needed services are included.” At this time, Mr. Yochim concluded “that the IPE needed no revisions.” Ms. Kipasa also wrote:

We discussed concerns ... in reference to Arthur's chosen job logistics. He lives in Plainfield, would like to work in Plainfield; however he has been actively searching for a job since October, 2007. We discussed his need to re-evaluate his job options and possibly consider looking for work within the Indianapolis city limits. Knowing that this would pose a transportation issue, Arthur agreed to discuss the transportation issue with his family. We discussed his computer training with Kathy Henry and his training with Jill Thomas, IRT, Bosma Rehab. He has met all computer training goals. He has a few things (frying on the stove top, cooking, and table techniques) to complete with the IRTR services.

At the hearing, Mr. Heard testified that:

Case Notes show that Kipasa asked Yochim at least twice over the entire three years since entering his...