Zingher v. Department of Aging and Disabilities, 94-175

Decision Date16 June 1995
Docket NumberNo. 94-175,94-175
Citation163 Vt. 566,664 A.2d 256
CourtVermont Supreme Court

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.


JOHNSON, Justice.

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.


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. at 429, 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.


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.


The purpose of the Rehabilitation Act is "to empower individuals with disabilities to maximize employment, economic self-sufficiency,...

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