Nicolos v. North Slope Borough

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Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
TOM DONOVAN NICOLOS, )
) Supreme Court No. S-16428
Appellant, )
) Superior Court No. 2BA-15-00178 CI
v. )
) OPINION
NORTH SLOPE BOROUGH, )
) No. 7257 – July 13, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Second Judicial District, Barrow, Angela Greene, Judge.
Appearances: Timothy Seaver, Seaver & Wagner, LLC,
Anchorage, for Appellant. Danielle M. Ryman and Jared L.
Gardner, Perkins Coie LLP, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
The North Slope Borough discharged employee Tom Donovan Nicolos
after he made statements that Borough employees interpreted as threats. Nicolos appeals
from the superior court’s order approving the Borough Personnel Board’s decision
affirming his discharge. He claims that his statements did not constitute threats or other
misconduct under the Borough’s personnel rules and that the Borough failed to conduct
an adequate investigation into his alleged misconduct before terminating him. Nicolos
also claims that his purportedly threatening statements were manifestations of a disability
and that his discharge violated the Americans with Disabilities Act1 (ADA) and the
Alaska Human Rights Act2 (AHRA). We reject Nicolos’s claims of error and affirm the
judgment of the superior court approving the Personnel Board’s decision.
II. FACTS AND PROCEEDINGS
A. The First Alleged Threat
Nicolos began working in Utqiagvik (then called Barrow) for the North
Slope Borough Department of Public Works in 2013. At some point Nicolos began
having thoughts of harming himself and harming others — thoughts that Nicolos would
later characterize as “unwelcome.” The thoughts persisted, and one day in January 2015
he “woke up feeling the worst that [he] had.”
Following advice from his parents, Nicolos went to work and immediately
sought out his supervisor, Brittney Toalston, to inform her about his unwelcome thoughts
of harm. Meeting in their shared office, Nicolos told Toalston that he “was not in a good
place, . . . d[id] not want to hurt others, . . . did not want to hurt [him]self, and . . . did not
want to go to jail.” Toalston later testified to the Personnel Board that during this
conversation Nicolos was “[v]ery agitated, stressed, and really red in the face” — “like
he was very fidgety and he had to do something.”
Toalston knew from previous conversations with Nicolos that he “ha[d]
access to firearms and weapons.” As a result, Toalston “became very scared for [her]self
and [her] employees.” She moreover did not “know how [she and the other employees]
1
42 U.S.C. §§ 12101-12213 (2012).
2
AS 18.80.010-.300.
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were going to act or work with somebody who said something like that.” She advised
Nicolos to clock out and seek treatment, and she sent her two other subordinates home
for the day. She later testified, “[I]f I didn’t feel safe in my workplace, then I feel my
employees shouldn’t be at work either.”
B. The Second Alleged Threat
Nicolos left the workplace, as instructed by Toalston, but was unable to
obtain immediate treatment in Utqiagvik. He flew to Anchorage that evening, and the
next day he had a counseling session at Providence Alaska Medical Center with
Mandie Webb, LPC.
After she met with Nicolos, Webb contacted Toalston and two Department
employees that day to warn them about Nicolos’s “homicidal ideation.” The nature of
Nicolos’s comments to Webb and the content of Webb’s disclosure to Toalston and the
others are disputed. According to Toalston, Webb told her Nicolos “had expressed . . .
that he had a list of people that he wanted to hurt either with guns or weapons,” that
Toalston “was number one on his list,” and that “next was [Department employee]
Ekatarina Pili and then [former Department employee] Pam Amling.” Pili, one of the
two other individuals warned by Webb, corroborated Toalston’s account. She testified,
“[Webb] told us pretty much that . . . [Nicolos] had either planned or premeditated to
come to the workplace and open fire.”
Amling, who also received a warning from Webb, gave a different account.
She testified that she “d[id] not remember [Webb] saying anything about a plan to kill
anybody” and that instead Webb had informed her that Nicolos had been “having
feelings of hurting himself and such.” For his part, Nicolos testified that he did not tell
Webb he had a plan to kill his supervisor or anyone else. Rather, he told Webb he had
been having thoughts — “unwelcome” thoughts — of harming his supervisor. Further
he did not know when he made his comments to Webb that she would disclose them to
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Toalston. Webb did not testify at the Personnel Board hearing. But her notes,
introduced at that hearing, state that she “contacted [Nicolos’s] supervisor, . . . Toalston
. . . , [about] the homicidal statements made by [Nicolos].” The notes do not mention a
hit list or premeditated plan to kill.
C. The Borough’s Response To The Alleged Threats
Toalston later testified at the Personnel Board hearing that after receiving
the call from Webb about Nicolos’s homicidal ideation, she cried and was “in shock.”
Toalston also testified that she “became sick to [her] stomach” and vomited. Similarly,
Pili testified that she was “really kind of distraught and shocked” after receiving Webb’s
call. She thought there was “a high possibility that [Nicolos] could come to work and
do whatever . . . [Webb] had said.”
On January 14, the same day Webb contacted her, Toalston sent an email
to the Borough’s human resources and legal departments, her supervisor, and the
Director of Public Works summarizing her conversation with Webb. The email stated
that Webb had said “she ha[d] a legal obligation to reach out to each of [the warning
recipients] to let [them] know that [Nicolos] ha[d] planned and ha[d] wanted to use
firearms on all three [employees] in the office.” The email further stated:
[Pili] and I will both submit restraining orders on [Nicolos]
for fear of our lives.
Please — please let me know if there is anything else we can
do. Because right now you have two women ([Pili] and
myself) tearing up with the fact that [Nicolos] has a
possibility of coming back to our office . . . .
Toalston later did obtain a protective order against Nicolos.3
3
The superior court subsequently vacated this order, apparently on the
ground that it was not supported by sufficient competent evidence. But the vacatur
(continued...)
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Price Leavitt, a deputy director in the Department and Toalston’s
supervisor, testified that the Department held an “emergency meeting” to decide how to
deal with Nicolos’s statements to Toalston and Webb. Leavitt testified that following
this meeting, the Department “put security measures into the [Department’s] building by
putting in special glass around the reception area . . . [and] security cameras” and by
employing a security guard.
The Department placed Nicolos on investigative leave on January 16.
Leavitt was responsible for investigating Nicolos’s alleged misconduct. In conducting
this investigation, Leavitt talked to Toalston twice, reviewed the Borough’s personnel
rules, and consulted with the Borough’s human resources and legal departments. He did
not interview Nicolos or other witnesses.
After he completed his investigation, Leavitt sent Nicolos a “notice of
contemplated discharge” on January 29. The notice informed Nicolos of the allegations
against him, of the personnel rules that he was alleged to have violated, and that the
Borough was contemplating discharging him. Further, the notice informed Nicolos that
he would have “an opportunity to present any evidence or otherwise respond” at a
meeting with Leavitt on February 9. Nicolos submitted a written response, and he
attended the February 9 meeting telephonically. Following this meeting, the matter of
Nicolos’s discipline was delegated to another deputy director in the Department, who
decided to proceed with Nicolos’s termination. This deputy director sent a second notice
of contemplated discharge on February 17.
In accordance with the second notice, a predisciplinary hearing was held
on February 26 before the Department Director. At the hearing, Nicolos testified under
3
(...continued)
occurred after the Borough discharged Nicolos and after the Personnel Board rendered
its decision.
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oath and presented other evidence, including Webb’s notes. Nicolos testified that he had
not intended to threaten anybody and that “[h]aving a feeling, an idea or an emotion is
not in fact a threat or threatening.” He further explained that his homicidal thoughts had
been caused by a traumatic brain injury in his youth, that he was being treated for the
injury, and that he no longer experienced the thoughts.
Following the hearing, on March 2, the Borough terminated Nicolos. The
notice of discharge from the Director stated that the basis for the discharge was Nicolos’s
statements to Webb about his homicidal thoughts. The Director determined that these
statements “violat[ed] . . . the Personnel Rules and Regulations on violence in the
workplace and m[et] the definition of a ‘threat.’ ”
D. The Personnel Board’s Hearing And Decision
Nicolos appealed his termination to the Borough Personnel Board. In
June 2015 the Board held a two-day hearing. In addition to the evidence summarized
above, Nicolos and Amling testified that Toalston had been a verbally abusive
supervisor. Toalston, however, denied mistreating Nicolos. Nicolos also offered the
testimony of his psychiatrist, who explained that Nicolos was no longer homicidal and
that he posed no danger. The psychiatrist testified that there is a “huge difference”
between thoughts and planning, and she asserted that “at no point in the documentation
did [she] find any . . . evidence that [Nicolos] was having intention of acting on [his
homicidal] thoughts.”
The Board concluded that just cause existed to discharge Nicolos. The
Board found that Nicolos’s statements to Toalston about not being in a good place and
not wanting to hurt anyone “constituted an indirect threat, as the . . . statements could be
interpreted by a reasonable person as implying that [Nicolos] ha[d] intent to cause
physical harm.” Further, the Board found that Nicolos’s statement to Webb about a
“premeditated plan to use firearms to harm or kill” his coworkers was a “direct threat.”
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The Board thus determined that Nicolos had violated the Borough’s personnel rules
prohibiting violence and threats in the workplace, as well as its personnel rule requiring
employees to “work effectively, amenably and courteously” with their coworkers.
The Board also determined that Nicolos’s termination did not violate the
ADA or the AHRA. The Board assumed that Nicolos was disabled and that Nicolos’s
purported threats were a manifestation of this disability. But the Board found that there
was “no evidence that [Nicolos] was terminated because of his disability.” It found that
Nicolos “cannot be considered ‘otherwise qualified’ to perform the essential duties of his
job, because threats of violence violated the Borough’s policy against violence in the
workplace.” The Board further found that “there was no reasonable accommodation that
could be made for [Nicolos], as his co-workers would always be in fear for their safety
due to [Nicolos’s] threats.”
E. The Superior Court’s Decision
Nicolos filed an appeal in the superior court. The court reversed the
Board’s findings that Nicolos’s statements to Toalston and Webb constituted threats that
violated the personnel rule against violence in the workplace. It reasoned that the rule
“require[d] an employee to have intended to make a threat” and that “[n]o reasonable
person [could] find that Nicolos intended to threaten anyone when he sought help for his
mental health issues.” The court approved, though, the Board’s conclusion that
Nicolos’s statements violated the personnel rule requiring Nicolos to work effectively,
amenably, and courteously. The court affirmed Nicolos’s termination.4
4
As explained below, we affirm the superior court’s approval of the Board’s
decision. We disagree, however, with the superior court’s ruling that Nicolos’s
statements did not constitute threats under the personnel rules. See infra Part IV.B.1.
Moreover, we do not address the superior court’s ruling that Nicolos violated the
personnel rule requiring him to work effectively, amenably, and courteously with his
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III. STANDARD OF REVIEW
In this appeal from the Borough Personnel Board — an administrative
agency5 — we “independently review” the Board’s decision without giving deference
to the superior court’s intermediate review.6 We accept the Board’s findings of fact so
long as they are supported by “substantial evidence,” meaning “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”7
With respect to questions of law, we apply either the “reasonable basis test”
or the “substitution of judgment standard.”8 The reasonable basis test applies when
reviewing “questions of law involving ‘agency expertise or the determination of
fundamental policies within the scope of the agency’s statutory functions.’ ”9 Under this
test, we seek only “to determine whether the agency’s decision is supported by the facts
and has a reasonable basis in law, even if we may not agree with the agency’s ultimate
determination.”10 The substitution of judgment standard, in contrast, applies “to
4
(...continued)
coworkers.
5
See Keiner v. City of Anchorage, 378 P.2d 406, 410 (Alaska 1963).
6
Heller v. State, Dep’t of Revenue, 314 P.3d 69, 72 (Alaska 2013).
7
Brown v. Pers. Bd. for Kenai, 327 P.3d 871, 874 (Alaska 2014) (quoting
Grimmett v. Univ. of Alaska, 303 P.3d 482, 487 (Alaska 2013)).
8
Davis Wright Tremaine LLP v. State, Dep’t of Admin., 324 P.3d 293, 299
(Alaska 2014).
9
Id. (quoting Marathon Oil Co. v. State, Dep’t of Nat. Res., 254 P.3d 1078,
1082 (Alaska 2011)).
10
Id. (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d
896, 903 (Alaska 1987)).
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questions of law where no agency expertise is involved.”11 Under this standard, “we may
‘substitute [our] own judgment for that of the agency even if the agency’s decision had
a reasonable basis in law.’ ”12
IV. DISCUSSION
Nicolos claims that the Personnel Board erroneously determined he made
threatening comments and violated the Borough personnel rules, that the Borough failed
to conduct an adequate investigation before deciding to discharge him, and that the
Borough violated the ADA and the AHRA by discharging him based on conduct arising
from his disability. Before proceeding to the first of these contentions, we resolve a
threshold matter.
A. The Borough Was Not Required To File A Cross-Appeal.
Nicolos asserts that we must accept the superior court’s ruling reversing the
Personnel Board’s determination that Nicolos’s statements to Toalston and Webb
constituted threats because the Borough failed to cross-appeal this ruling. But Nicolos
misunderstands the cross-appeal requirement. “[A]n appellee may urge . . . in defense
of a decree or judgment any matter appearing in the record, even if rejected below and
even if [the] appellee’s argument may involve an attack upon the reasoning of the lower
court or an insistence upon [a] matter overlooked or ignored by it.”13 It is only when an
appellee “attack[s] [a] decree [or judgment] with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary” that the appellee must file a cross­
11
Id.12
Id. (alteration in original) (quoting Tesoro Alaska, 746 P.2d at 903).
13
Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961).
-9- 7257
appeal.14 We are not bound by the superior court’s ruling on Nicolos’s threats, because
our reversal of that ruling (in the following section) serves only to provide a basis for
affirming the superior court’s ultimate judgment approving the Board’s decision.
Reversal of the ruling does not alter the rights of the parties under the superior court’s
judgment or the Board’s decision.
B. The Personnel Board Did Not Err In Finding That Nicolos Violated
Personnel Rules Prohibiting Workplace Violence.
We turn now to Nicolos’s claim that the Personnel Board erred in
determining that his statements to his supervisor and to the counselor were threats or
workplace violence under the Borough’s personnel rules. Nicolos urges us to interpret
the personnel rules as allowing discipline only for “misconduct,” attacks the Board’s
factual findings, and argues that the Board’s application of the rules under the
circumstances of this case discourages employees experiencing violent thoughts from
seeking treatment.
1. An employee need not engage in culpable behavior to violate the
Borough’s personnel rules prohibiting workplace violence.
The superior court ruled that an employee cannot commit a punishable
threat under the Borough’s personnel rules unless the employee “intend[s] to make a
threat.” Nicolos does not defend this ruling, but he argues that an employee does not
commit a punishable threat under the personnel rules unless the employee’s behavior
constitutes “misconduct.”
14
El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999) (quoting
United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924)); see, e.g., Peterson v.
Ek, 93 P.3d 458, 467 (Alaska 2004) (declining to address appellee’s arguments
concerning damages awarded to appellant); Jackson v. Nangle, 677 P.2d 242, 247 n.3
(Alaska 1984) (declining to address appellee’s argument relating to an offset of
damages); Alaska Brick Co. v. McCoy, 400 P.2d 454, 457 (Alaska 1965) (declining to
address appellee’s argument that his attorney’s fees award should be increased).
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Two personnel rules, cited by the Personnel Board in its decision and by
the Director of Public Works in the notice of discharge, apply here. First, North Slope
Borough Personnel Rules and Regulations § 3.03.1 provides:
VIOLENCE IN THE WORKPLACE PROHIBITED.
Threatening or intimidating behavior and violence in the
workplace are unacceptable conduct and will not be tolerated
in the North Slope Borough.
And second, North Slope Borough Personnel Rules and Regulations § 3.03.2 states, in
relevant part:
VIOLENCE IN THE WORKPLACE DEFINED. An action
(verbal, written or physical aggression) that is intended to
control another, or that is intended to cause, or is capable of
causing, death or other serious bodily injury to oneself or
others, or damage to property. Workplace violence includes
abuse of authority, intimidating or harassing behavior or
threats. Actions include but are not limited to:
....
(F) Threat. Any oral or written expression or gesture
that could be interpreted by a reasonable person as conveying
intent to cause physical harm to persons or property.
The proper interpretation of these rules presents a question of law.15 Nicolos and the
Borough disagree over which standard applies to this question; Nicolos argues that we
should substitute our judgment for that of the Board in its interpretation of the rules,
while the Borough claims that we should apply the reasonable basis standard because the
Board has expertise in interpreting and applying the Borough’s personnel rules.
However, we decline to resolve this dispute because our conclusion would be the same
15
See Palmer v. Municipality of Anchorage, Police & Fire Ret. Bd., 65 P.3d
832, 837 (Alaska 2003) (indicating that interpretation of a municipal regulation presents
a question of law); see also North Slope Borough v. Bray, No. S-6115, 1995
WL 17803841, at *1 & n.3 (Alaska Jan. 25, 1995).
-11- 7257
under either standard of review. We accordingly apply the substitution of judgment
standard and will “adopt the rule of law ‘most persuasive in light of precedent, reason,
and policy.’ ”16
We disagree with the superior court’s interpretation of these rules as only
prohibiting intentional threats. It appears that under § 3.03.2 an employee must have
some level of intent or capacity to cause harm in order to commit “violence in the
workplace.” But § 3.03.1 prohibits not only “violence in the workplace,” but also
“[t]hreatening or intimidating behavior.” The rules do not state that an employee must
have a culpable mental state to engage in threatening or intimidating behavior under
§ 3.03.1. Moreover, in construing § 3.03.1’s prohibition against threatening or
intimidating behavior, we look to § 3.03.2(F).17 This provision defines “threat” in
objective terms: the question is whether an employee’s expression or behavior “could
be interpreted by a reasonable person as conveying intent to cause physical harm,” not
whether the employee actually intended to cause physical harm or to convey a desire to
cause such harm.
We also reject Nicolos’s argument that only “misconduct” can qualify as
a punishable threat. Nicolos does not explain what he means by “misconduct,” but he
16
State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014) (quoting State v.
Anthony, 810 P.2d 155, 157 (Alaska 1991)).
17
See Shirk v. United States, 773 F.3d 999, 1004 (9th Cir. 2014) (“A basic
principle of interpretation is that courts ought to interpret similar language in the same
way, unless context indicates that they should do otherwise.”); see also Basey v. State,
Dep’t of Pub. Safety, Div. of Alaska State Troopers, Bureau of Investigations, 408 P.3d
1173, 1177 (Alaska 2017) (“Generally, ‘each part . . . of a statute should be construed
with every other part . . . so as to produce a harmonious whole.’ ” (omissions in original)
(quoting Ward v. State, Dep’t of Pub. Safety, 288 P.3d 94, 99 (Alaska 2012))).
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seems to mean that the conduct must be culpable or blameworthy in some way.18 There
is no textual basis in the personnel rules for such a requirement. And we agree with the
Borough that a focus on the culpability of an employee’s actions as opposed to the
consequences of those actions would undermine the workplace violence “policy’s
function of preserving a safe work environment.”
Therefore, we conclude that under the Borough’s personnel rules an
employee can be punished for his threatening statement or behavior so long as it could
be interpreted by a reasonable person as conveying intent to cause physical harm.
2. The Board’s determinations that Nicolos’s statements
constituted punishable threats are supported by substantial
evidence.
Nicolos argues that the Board erred when it determined he made threatening
statements to his supervisor, Toalston, and to the counselor, Webb, in violation of the
Borough’s personnel rules. In evaluating Nicolos’s argument, we must accept the
Board’s findings of fact concerning what Nicolos said to Toalston and to Webb as long
as they are supported by substantial evidence. The same is true of the Board’s
determinations that Nicolos’s statements could be interpreted by a reasonable person as
conveying intent to cause harm: these are factual findings subject only to substantial
evidence review.19
18
In this regard, Nicolos contends that he “did . . . not engage in any
‘misconduct’ ” and in fact “did exactly what his employer and any reasonable person
would want him to do — he sought treatment for his ‘unwelcome’ thoughts and he
engaged in that treatment openly and honestly.” The Board in fact “commend[ed]
[Nicolos] for seeking professional medical assistance,” and the Borough concedes in its
brief that Nicolos’s “effort to be ‘open and honest’ with Webb was [not] anything but
proper.”
19
Cf. Becker v. Fred Meyer Stores, Inc., 335 P.3d 1110, 1116 (Alaska 2014)
(continued...)
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The Board found that Nicolos told Toalston “that he was ‘not in a good
place’ and that he did not want to hurt himself or others . . . [or] go to jail.” The Board
determined that these statements were an “indirect threat” as they “could be interpreted
by a reasonable person as implying that [Nicolos] ha[d] intent to cause physical harm.”
The Board also found that Nicolos told Webb that he had “a premeditated plan to use
firearms to harm or kill people at his workplace.” It found that this statement “could be
interpreted by a reasonable person as conveying intent to cause physical harm” and thus
constituted a “direct threat to use violence in the workplace.”
The Board’s findings are supported by substantial evidence. With regard
to the first incident, both Nicolos and Toalston testified that Nicolos said he was not in
a good place, did not want to hurt himself or others, and did not want to go to jail.
Toalston further testified that Nicolos was “[v]ery agitated,” “red in the face,” and
“fidgety” when he made these statements. Nicolos testified that he did not mean to put
Toalston in fear. But given the statements’ unusual nature and Nicolos’s highly agitated
demeanor when making them, the Board did not err in finding that a reasonable person
could have interpreted the statements as conveying an intent to cause physical harm.
With regard to the second incident, Toalston testified that Webb told her
that Nicolos said he had a list of people he wanted to harm with guns or other weapons;
Pili (Nicolos’s coworker) testified that Webb told her that Nicolos had a premeditated
plan “to come to the workplace and open fire.” Furthermore, as the Board noted in its
19
(...continued)
(holding that the question “whether a reasonable person would believe that the
provisions of [an employment manual] are binding” was, under the circumstances, a
factual question for the jury); Braham v. Fuller, 728 P.2d 641, 644 (Alaska 1986)
(“Whether particular conduct is reasonable under the circumstances is generally
considered a question of fact . . . .” (quoting Carlson v. State, 598 P.2d 969, 974 (Alaska
1979))).
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decision, Webb, a licensed professional counselor, was permitted to reveal Nicolos’s
confidential statements only if she determined there was “a clear and immediate
probability of physical harm to [Nicolos], other individuals, or society.”20 And Webb
was allowed to make such a disclosure only to “a potential victim, the family of a
potential victim, law enforcement authorities, or other appropriate authorities.”21 Webb’s
apparent belief — evidenced by her disclosures — that Nicolos posed a clear and
immediate probability of harm and that Toalston and Pili were potential victims
corroborates Toalston’s and Pili’s testimony about Webb’s disclosure.22
On appeal Nicolos attacks Toalston’s credibility. He notes that some of her
testimony was contradicted by other evidence in the hearing record (for example,
Amling’s testimony and Webb’s notes), and he points to evidence that purportedly shows
Toalston was an abusive supervisor with an animus towards him. But we do not
“ ‘reweigh conflicting evidence, determine witness credibility, or evaluate competing
inferences from testimony,’ as these functions are reserved to the agency.”23
Significantly, Nicolos does not address the fact that Toalston’s testimony was
20
AS 08.29.200(a)(1). There are other statutory grounds for disclosure, but
none apply in this case. AS 08.29.200.
21
AS 08.29.200(a)(1).
22
Moreover, the Board’s task was to determine whether there was “just
cause” to support the Department’s discipline decision. North Slope Borough Code
(NSBC) 2.20.180(c) (2017). Although the Board ultimately found that Nicolos told
Webb he had a premeditated plan to kill, the Board really only needed to find that the
Department “reasonably believed” that Nicolos had such a plan. Cassel v. State, Dep’t
of Admin., 14 P.3d 278, 284 (Alaska 2000) (quoting Braun v. Alaska Commercial
Fishing & Agric. Bank, 816 P.2d 140, 142 (Alaska 1991)). The corroborated testimony
of Webb and Pili is more than sufficient to support the latter finding.
23
McKitrick v. State, Pub. Emps. Ret. Sys., 284 P.3d 832, 837 (Alaska 2012)
(quoting Lindhag v. State, Dep’t of Nat. Res., 123 P.3d 948, 952 (Alaska 2005)).
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corroborated by Pili’s; and as explained above, both Toalston’s and Pili’s testimony was
corroborated by Webb’s apparent determination that Nicolos’s statements warranted
breaching confidentiality.
Nicolos points out that Toalston’s and Pili’s testimony about Webb’s
disclosure was hearsay. But the Board was permitted to consider hearsay under the
procedural rules governing its hearings.24 The hearsay was not “inherently unreliable,”
as Toalston’s and Pili’s testimony was mutually corroborating and was also corroborated
by Webb’s decision to breach confidentiality and Toalston’s contemporaneous email to
Borough employees.25 And the hearsay did not “jeopardize[] the fairness of the
proceeding[],”26 because Nicolos had an opportunity at the predischarge hearing and at
the hearing before the Board to present his account of what he said to Webb. There is
moreover no indication that Nicolos was prohibited from calling Webb as a witness or
offering her affidavit.
Nicolos’s statement to Webb — as found by the Board — that he had a
premeditated plan to kill his supervisor, coworker, and others was on its face a statement
of intent to cause physical harm. A reasonable person could have interpreted such a
statement literally even though it was made during the course of a counseling session.
Indeed, both Toalston’s and Pili’s testimony indicates that they interpreted Nicolos’s
24
See NSBC 2.20.180(F) (2017) (“The formal rules of evidence are not
applicable [in hearings before the Board].”).
25
Button v. Haines Borough, 208 P.3d 194, 201 (Alaska 2009) (“[W]e will
not reverse an administrative judgment based on hearsay unless the hearsay was
inherently unreliable or jeopardized the fairness of the proceedings.”).
26
Id.-16- 7257
statement literally.27 Both testified that they were frightened by Webb’s disclosure;
Toalston testified she became so nervous that she became ill.
The Department and the district court also both took Nicolos’s statement
seriously. The Department put security measures in place, and the district court issued
a protective order to Toalston. The nature of Nicolos’s statement and the reactions of
these individuals and entities to the statement support a finding that a reasonable person
could interpret the statement as conveying intent to harm. The Board did not err in
finding that this statement was a punishable threat.28
3. Public policy concerns do not override the personnel rules.
Nicolos argues that he made his statements to Toalston and Webb in the
course of seeking treatment for his unwanted homicidal thoughts and that the Borough’s
decision to punish his help-seeking behavior by terminating him “has alarming
implications.” In particular, he contends that “[i]n a state and a region that continue[] to
suffer from a near epidemic of self-harm, adopting a policy that discourages people from
seeking treatment is both dangerous and cruel.” And he further contends that the
Borough’s actions in this case may have the effect of discouraging healthcare providers
27
As Toalston and Pili are “presumably reasonable” persons, their subjective
reactions to Nicolos’s statements provide some evidence of how an objectively
reasonable person could understand Nicolos’s statements. Munson v. State, 123 P.3d
1042, 1053 n.58 (Alaska 2005).
28
Nicolos does not raise the issue whether his conduct amounted to a “serious
infraction[]” warranting discharge. See NSBC 2.20.178(D) (2017) (“Discharge from
Borough employment is the appropriate level of discipline to be imposed by the
department director for serious infractions or continued unwillingness or inability to
correct unacceptable actions or performance.”). We therefore decline to address the
issue. See State v. Ranstead, ___ P.3d ___, Op. No. 7234 at 13 n.53, 2018 WL 1660862,
at *6 n.53 (Alaska Apr. 6, 2018) (“Appellate courts typically do not address issues that
the parties have not briefed.”).
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from giving warnings such as the one Webb gave in this case: “[n]o competent or ethical
health care provider would choose to get their patient fired . . . [during] a mental health
crisis.”
As the Borough points out, however, it has a strong interest in maintaining
a workplace free of violence and threats of violence. And Nicolos has not cited any
authority that would justify substituting our policy judgment for that of the Borough’s
Mayor and Assembly, which approved the personnel rules at issue in this case.29 We
therefore reject Nicolos’s policy argument.
C. Any Deficiencies In The Borough’s Investigation Were Harmless.
North Slope Borough Personnel Rules and Regulations § 4.01.3(A) states:
In response to any evidence or allegation(s) of wrongdoing
by an employee . . . , the supervisor or other designated
person shall first conduct a thorough investigation of the facts
and circumstances of the allegation(s) to determine if
disciplinary action should be contemplated. The results of
the investigation shall be recorded with the report and all
relevant evidence retained . . . .
Nicolos claims that the Borough failed to comply with this requirement and requests that
we remand for a proper investigation.30 He notes that Leavitt, the deputy director
29
See NSBC 2.20.140(A) (2017) (“The Human Resources Director shall
prepare and submit to the Mayor any proposed amendments to the personnel rules . . .
for his review, amendment, approval or rejection. (Any amendment or approval is
subject to Assembly review).”); cf. Municipality of Anchorage v. Leigh, 823 P.2d 1241,
1244 (Alaska 1992) (“[A] court is not empowered to substitute its judgment for that of
the [legislative body] on matters of policy, nor to strike down a statute which is not
manifestly unconstitutional even though the court may consider it unwise.” (quoting
1 NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 2.01, at 15-16
(4th ed. 1985))).
30
The Board did not make any findings or conclusions about the quality of
(continued...)
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responsible for the investigation, did not interview him before sending the first notice of
contemplated discharge and in fact spoke to only one witness with personal knowledge
of any of the events at issue: Toalston. Nicolos also notes that Leavitt did not document
his investigation in a written report, as required by § 4.01.3(A).
We need not decide whether Leavitt’s investigation was inadequate,
because even assuming it was, any inadequacies were remedied by subsequent
administrative procedures.31 After the Borough sent its first notice of contemplated
discharge to Nicolos, Nicolos met with Leavitt telephonically and submitted a written
response. And after the Borough sent the second notice of contemplated discharge,
Nicolos attended a predisciplinary hearing at which he was able to testify under oath and
present evidence. Following his discharge, Nicolos had the opportunity to appeal to the
Board where he presented evidence and cross-examined the Borough’s witnesses.
Nicolos thus had a full opportunity to present his side of the story, and the relevant
decision makers in the Borough (first the Director of the Department and later the Board)
had an adequate record on which to base their decisions.
Nicolos contends that “to argue that a subsequent hearing remedies the
failure to conduct an investigation would necessarily render the investigative requirement
meaningless.” But the issue here is not whether the Borough followed its investigation
30
(...continued)
the Borough’s investigation into Nicolos’s misconduct, even though Nicolos raised the
issue. The superior court found that the Borough’s “investigation of Nicolos did not
perfectly follow its regulations,” but concluded — as we do, infra — “that this error was
harmless.”
31
See Kalmakoff v. State, Commercial Fisheries Entry Comm’n, 693 P.2d
844, 849 (Alaska 1985) (“Not all errors . . . require reversal. We have employed a
‘harmless error’ standard in reviewing administrative determinations.”); see also
Brandon v. State, Dep’t of Corr., 73 P.3d 1230, 1236 (Alaska 2003); Municipality of
Anchorage v. Carter, 818 P.2d 661, 666 n.13 (Alaska 1991).
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requirements; rather, the issue is whether Nicolos was deprived of a full and fair
opportunity to be heard — that is, whether he was prejudiced. Nicolos argues that he
was prejudiced by the deficient investigation because “once the Borough got to the point
of ‘contemplating’ [his] discharge the matter had already become adversarial, with the
Borough management on one side and [Nicolos] on the other.” But this theoretical point
does not warrant reversal absent any concrete indication of prejudice.
D. Nicolos’s Discharge Did Not Violate The ADA Or The AHRA.
Nicolos’s final claim is that the Borough violated the ADA and the AHRA
because it terminated him on the basis of conduct — his purportedly threatening
statements — that arose from his mental disability. Since the Board lacks special
expertise concerning the ADA and the AHRA, we apply the substitution of judgment
standard in construing these statutes. We thus “adopt the rule of law ‘most persuasive
in light of precedent, reason, and policy.’ ”32 Also, Nicolos’s ADA and AHRA
arguments run together — he does not distinguish between the two statutes — and so we
do not here address the possibility that the AHRA may provide broader protections to
disabled employees than does the ADA.33
32
State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014) (quoting State v.
Anthony, 810 P.2d 155, 157 (Alaska 1991)).
33
See Gilbert v. Sperbeck, 126 P.3d 1057, 1062 (Alaska 2005) (holding
AHRA claim waived where initial brief mentioned only ADA and reply brief made only
“terse and superficial” AHRA argument). Nicolos perfunctorily notes that we have said
the AHRA “is intended to be more broadly interpreted than federal law to further the
goal of eradication of discrimination.” Smith v. Anchorage Sch. Dist., 240 P.3d 834, 842
(Alaska 2010) (quoting VECO, Inc. v. Rosebrock, 970 P.2d 906, 912 (Alaska 1999)).
But he does not elaborate or explain how this principle should apply in this case.
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1. The ADA and the AHRA do not preclude an employer from
discharging an employee who is unable to perform the essential
functions of his or her position due to the employee’s violations
of the employer’s workplace violence policies.
“Congress enacted the ADA in order to eliminate discrimination against
individuals with disabilities,”34 and the Alaska legislature enacted the AHRA to, among
other things, “encourage and enable physically and mentally disabled persons to
participate fully in the social and economic life of the state and to engage in remunerative
employment.”35 Both statutes expressly prohibit employers from discriminating against
employees on the basis of disability.36
The statutes’ protections do not, however, extend to an employee who is
terminated because he cannot “perform the essential functions of [his] position . . . (with
or without reasonable accommodation).”37 And an employee who violates the
34
Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1160
(9th Cir. 2011).
35
AS 18.80.200(b).
36
42 U.S.C. § 12112(a) (2012) (“No covered [employer] shall discriminate
against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”);
AS 18.80.220(a)(1) (“[I]t is unlawful for . . . an employer to refuse employment to a
person, or to bar a person from employment, or to discriminate against a person in
compensation or in a term, condition, or privilege of employment because of the person’s
. . . physical or mental disability . . . when the reasonable demands of the position do not
require distinction on the basis of . . . physical or mental disability . . . .”).
37
Smith, 240 P.3d at 843 (quoting Moody-Herrera v. State, Dep’t of Nat. Res.,
967 P.2d 79, 88 (Alaska 1998)); see 42 U.S.C. § 12112(a) (only protecting “qualified
individual[s]”); AS 18.80.220(a)(1) (prohibiting disability discrimination only “when the
reasonable demands of the position do not require distinction on the basis of . . . physical
(continued...)
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employer’s workplace violence policy — whether due to his disability or due to some
other factor — will generally be considered unable to perform the essential functions of
his position.38 This is because “[i]t is an essential function of a job . . . [to] be able to
handle stressful situations . . . without making others in the workplace feel threatened for
their own safety.”39 Thus, an employee’s violation of a workplace violence policy may
37
(...continued)
or mental disability”).
38
See EQUAL EMP’T OPPORTUNITY COMM’N, NO. 915.002, ENFORCEMENT
GUIDANCE ON THE AMERICANS WITH DISABILITIES ACT AND PSYCHIATRIC DISABILITIES,
1997 WL 34622315, at *16 (1997) (explaining that an employee who has threatened a
supervisor “is no longer a qualified individual with a disability”). The EEOC’s non-
regulatory guidance is not binding on us, O’Neal v. City of New Albany, 293 F.3d 998,
1009 (7th Cir. 2002), but we find it persuasive. Some courts, contrary to the EEOC,
have held that workplace violence does not render a disabled employee unqualified. But
those courts have nonetheless held that violence furnishes a nondiscriminatory basis for
firing the qualified, disabled employee. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161,
172-73 (2d Cir. 2006); Wills v. Superior Court, 125 Cal. Rptr. 3d 1, 21-24 (Cal. App.
2011).
39
Calef v. Gillette Co., 322 F.3d 75, 86 (1st Cir. 2003); see also Mayo v. PCC
Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015) (“An essential function of almost
every job is the ability to appropriately handle stress and interact with others. . . . [A]n
employee . . . is not qualified when . . . stress leads him to threaten to kill his
co-workers . . . .”); Palmer v. Circuit Court, 117 F.3d 351, 352 (7th Cir. 1997) (“The
[ADA] protects only ‘qualified’ employees, that is, employees qualified to do the job for
which they were hired; and threatening other employees disqualifies one.”). We note
that the issue whether an employer can terminate a disabled employee for violating
personnel rules governing workplace violence is distinct from the issue whether an
employer can terminate a disabled employee who poses a future threat to his or her
coworkers. See 42 U.S.C. § 12113(b) (explaining that an employer can properly require
that its employees “not pose a direct threat to the health or safety of other individuals in
the workplace”). This latter issue is not implicated in the present case as Nicolos was
terminated for his violation of the personnel rules, not for the future threat he may have
(continued...)
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furnish a lawful ground for the employee’s termination even if the violation stems from
the employee’s disability.
Some conditions must be satisfied, however, for an employer to lawfully
terminate an employee for violation of workplace violence rules when the violation
results from the employee’s disability. First, the rule that the employee has violated must
be “job-related for the position in question and . . . consistent with business necessity.”40
Thus, “an employer may not hold a disabled employee to precisely the same standards
of conduct as a non-disabled employee unless such standards are job-related and
consistent with business necessity.”41 As just noted above, this condition will typically
be satisfied when the employee violates a workplace violence policy because compliance
with that policy is job-related and necessary.
Second, the employee’s failure to adhere to the workplace violence policy
cannot be the result of the employer’s failure to reasonably accommodate the employee.42
But “[b]ecause reasonable accommodation is always prospective, . . . an employer is not
required to excuse . . . misconduct” that occurred before the employer was aware of the
39
(...continued)
posed.
40
EEOC GUIDANCE, supra note 38, 1997 WL 34622315, at *14 (citing 42
U.S.C. § 12112(b)(6)); see also 42 U.S.C. § 12113(a).
41
Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1086 (10th Cir. 1997)
(emphasis omitted).
42
EEOC GUIDANCE, supra note 38, 1997 WL 34622315, at *15; see
Moody-Herrera v. State, Dep’t of Nat. Res., 967 P.2d 79, 87 (Alaska 1998) (“[AHRA]
imposes a duty on an employer to reasonably accommodate a disabled employee.”).
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need for reasonable accommodation.43 Third, “collateral assessment of disability [must]
play[] no role in the decision to dismiss.”44 In other words, the employee must be
discharged due to a violation of the workplace violence policy, not due to a disability.
2. The Board properly found that Nicolos was not capable of
performing the essential functions of his position due to his
violations of personnel rules concerning workplace violence.
As explained above, substantial evidence supports the Board’s finding that
Nicolos told a counselor that he had a premeditated plan to kill his supervisor, coworker,
and others. This finding, combined with the undisputed evidence about Nicolos’s earlier
conversation with his supervisor, justified the Board’s conclusion that Nicolos had
violated the personnel rules on workplace violence. These violations were the basis for
Nicolos’s discharge.
We conclude the Board properly determined that Nicolos’s violation of the
Borough personnel rules on workplace violence rendered him no longer “ ‘otherwise
qualified’ to perform the essential duties of his job.” First, a rule prohibiting employees
from making threatening statements or engaging in behavior threatening to other
employees is consistent with business necessity. Moreover, the Board determined that
“there was no reasonable accommodation that could be made for [Nicolos], as his co­
workers would always be in fear for their safety.” This determination is supported by
43
EEOC GUIDANCE, supra note 38, 1997 WL 34622315, at *15; see also
Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1316 (10th Cir. 2017); Palmer, 117 F.3d at
353 (“[W]e cannot believe that th[e] [reasonable accommodation] duty runs in favor of
employees who commit or threaten to commit violent acts. . . . It would be unreasonable
to demand of the employer either that it force its employees to put up with this or that it
station guards to prevent the mentally disturbed employee from getting out of hand.”).
44
Newberry v. E. Tex. State Univ., 161 F.3d 276, 280 (5th Cir. 1998).
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Pili’s and Toalston’s testimony and also consistent with a common-sense understanding
of human nature.45
Finally, the Board found that Nicolos did not prove he “was terminated
because of his disability” and that the evidence instead showed he was terminated
“because of [his] misconduct, which may have resulted from his disability.” In other
words, the Board found that Nicolos was not terminated on the basis of prejudice.
Nicolos does not argue, and has not shown, that he was terminated due to prejudice
against him as a disabled person.
Thus, the Board’s findings support its determination that the Borough did
not violate the ADA or the AHRA. Nicolos disputes this conclusion, however. His
argument, similar to the one we addressed in Part IV.B.3, supra,46 is that he “did . . . not
engage in any ‘misconduct’ ” but instead engaged in proper help-seeking behavior that
unfortunately happened to frighten his supervisor and coworker. Nicolos analogizes his
45
The Board’s reasonable accommodation finding perhaps does not account
for the possibility that Nicolos could be transferred to another department. But even if
it is deficient in this way, the deficiency does not warrant reversal because the reasonable
accommodation finding was superfluous. Reasonable accommodation is prospective,
and since the Borough had properly decided to terminate Nicolos on the basis of his past
failure to adhere to the personnel rules governing workplace violence, there was no need
to reasonably accommodate him. Nicolos has not argued — and has not shown — that
he gave notice of his need for reasonable accommodation before he engaged in
threatening conduct. Toalston was aware of Nicolos’s depression and was perhaps aware
of his disability more generally. But to trigger the Borough’s duty to provide reasonable
accommodation, Nicolos needed to “make clear [to the Borough] that [he] want[ed]
assistance for his . . . disability.” Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir.
2010) (quoting Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003));
see also EEOC GUIDANCE, supra note 38, 1997 WL 34622315, at *10.
46
See also supra note 18.
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case to Walton v. Spherion Staffing LLC,47 which he asserts stands for the principle that
“expressing a desire for help and then seeking that help does not in itself constitute
misconduct sufficient to overcome the ADA’s protections.” Walton arguably does stand
for the principle that a reasonable jury could find that asking for help, even in a way that
frightens others, does not constitute misconduct sufficient to overcome the ADA’s
protections.48 But the Board found that Nicolos did more than ask for help — it found
that he told Webb that he had a premeditated plan to harm or kill his coworkers — and
thus the principle from Walton does not help him.
V. CONCLUSION
We AFFIRM the judgment of the superior court approving the Personnel
Board’s discharge decision.
47
152 F. Supp. 3d 403 (E.D. Pa. 2015).
48
See id. at 406.
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