Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nicolos v. North Slope Borough (7/13/2018) sp-7257

Nicolos v. North Slope Borough (7/13/2018) sp-7257

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                           

           corrections@akcourts.us.  



                       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.                                                    )  

                                                                                           

                                                                 )    O P I N I O N  

                             

NORTH SLOPE BOROUGH,                                             )  

                                                                                                        

                                                                 )    No. 7257 - July 13, 2018  

                                Appellee.                        )  

                                                                 )  



                                                                                                          

                      A            

                        ppeal  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  


----------------------- Page 2-----------------------

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  



 alsoclaims           thathis purportedly                 threatening statements weremanifestationsofadisability                                  

                                                                                                                                  1  (ADA) and the  

 and that his discharge violated the Americans with Disabilities Act                                                                                         

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 informher abouthis unwelcomethoughts  

                                                                                                                                                    



 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.  



                                                                               -2-                                                                             7257  


----------------------- Page 3-----------------------

                                                                                                                       

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 fromWebb, 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  



                                                               -3-                                                         7257
  


----------------------- Page 4-----------------------

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 . . . .                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                              3  

Toalston later did obtain a protective order against Nicolos.                                                                                                                                                                                                                                                      



                                  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...)  



                                                                                                                                                                                                                    -4-                                                                                                                                                                                                      7257
  


----------------------- Page 5-----------------------

                                                                            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.  



                                                                                                                                                                                                                                               -5-                                                                                                                                                                                                                                7257
  


----------------------- Page 6-----------------------

                                                                                                                               

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 fromthe 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."  



                                                                -6-                                                         7257
  


----------------------- Page 7-----------------------

  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 performthe 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,                                                                                                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                                                                                                                                                                                             4  

  amenably, and courteously.                                                                                                                                 The court affirmed Nicolos's termination.                                                                                                                                                                                                             



                                       4                                    As explained below, we affirmthe 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                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                            -7-                                                                                                                                                                                                                           7257
  


----------------------- Page 8-----------------------

III.        STANDARD OF REVIEW                



                        In this appeal from the Borough Personnel Board - an administrative                                       



             5  

agency                                                                                                                                     

               - we "independently review" the Board's decision without giving deference  



                                                                              6  

                                                                                 We accept the Board's findings of fact so                               

to the superior court's intermediate review. 



                                                                                                                                             

long as they are supported by "substantial evidence," meaning "such relevant evidence  



                                                                                                                                  7  

                                                                                                            

as a reasonable mind might accept as adequate to support a conclusion." 



                                                                                                                                                     

                        With respect to questions of law, we apply either the "reasonable basis test"  



                                                                                8  

                                                                                                                                                  

or the "substitution of judgment standard."                                         The reasonable basis test applies when  



                                                                                                                                                        

reviewing  "questions  of  law  involving  'agency  expertise  or  the  determination  of  

                                                                                                                                      9  Under this  

                                                                                                                                                      

fundamental policies within the scope of the agency's statutory functions.' " 



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)).  

                                 



                                                                           -8-                                                                     7257
  


----------------------- Page 9-----------------------

                                                                                                          11  

questions of law where no agency expertise is involved."                                                       Under this standard, "we may                   



'substitute [our] own judgment for that of the agency even if the agency's decision had                                                                        



                                                      12  

a reasonable basis in law.' "                              



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.  

                                                                                                                  



                         Nicolosassertsthat 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 vieweither 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
  


----------------------- Page 10-----------------------

                                      14  

 appeal.                                       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).                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                   -10-	                                                                                                                                                                                                         7257
  


----------------------- Page 11-----------------------

                         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
  


----------------------- Page 12-----------------------

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  

                                                                                        17    This provision defines "threat" in  

                                                                                                                                                          

intimidating behavior, we look to   3.03.2(F). 



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))).  

                                                                                                                                 



                                                                           -12-                                                                      7257
  


----------------------- Page 13-----------------------

                                                                                                                                                                                                                                                                                                                               18  

 seems to mean that the conduct must be culpable or blameworthy in some way.                                                                                                                                                                                                                                                          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.   



                                                      Nicolosarguesthat                                                             theBoarderredwhenitdeterminedhemadethreatening                                                                                                                                 



 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...)  



                                                                                                                                                                        -13-	                                                                                                                                                                7257
  


----------------------- Page 14-----------------------

                                                                 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))).  



                                                                                                                                                                                                         -14-                                                                                                                                                                                                7257
  


----------------------- Page 15-----------------------

decision, Webb, a licensed professional counselor, was permitted to reveal Nicolos's                                                          



confidential   statements   only   if   she   determined   there   was   "a   clear   and   immediate  

                                                                                                                                      20   And Webb  

probability of physical harm to [Nicolos], other individuals, or society."                                                                           



was allowed to make such a disclosure only to "a potential victim, the family of a  

                                                                                                                                                              

potentialvictim, lawenforcement authorities, or other appropriateauthorities."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),andhepointsto evidencethat 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  

                                                                                                                                             



                                                                                                                                                             23  

inferences  from  testimony,'   as   these  functions  are  reserved  to  the  agency."                                                                           

                                                                                                                                           



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)).  

                                                                                                                                        



                                                                            -15-                                                                       7257
  


----------------------- Page 16-----------------------

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                                                               

                                                                                  24   The hearsay was not "inherently unreliable,"  

procedural rules governing its hearings.                                                                                                                   



as Toalston's and Pili's testimony was mutuallycorroborating andwas 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
  


----------------------- Page 17-----------------------

                                                 27  

statement literally.                                    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.").  

                                                     



                                                                                                           -17-                                                                                                     7257
  


----------------------- Page 18-----------------------

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                                                                                                                                                      

                                                                                                                                                                                                                                                          29       We  

Mayor and Assembly, which approved the personnel rules at issue in this case.                                                                                                                                                                                    



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 N         ORMAN   J. S                          INGER, S                    TATUTES   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...)  



                                                                                                                                 -18-                                                                                                                          7257
  


----------------------- Page 19-----------------------

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  

                                                     31     After the Borough sent its first notice of contemplated  

administrative procedures.                                                                                                                       



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  

                                                                                                                                                                      



failuretoconductaninvestigation wouldnecessarily render theinvestigativerequirement  

                                                                                                                                                     



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).  

                                                                                                             



                                                                                  -19-                                                                            7257
  


----------------------- Page 20-----------------------

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                                                                                                                



                                                                                                                                       32  

 in   light   of   precedent,   reason,   and   policy.'   "                                                                                                                                                                        

                                                                                                                                                  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  



                                                                                                                     33  

                                                                                                   

 disabled employees than does the ADA. 



                    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.  

                                                                                                                                                                                                                                             



                                                                                                                        -20-                                                                                                                7257
  


----------------------- Page 21-----------------------

                             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                                                                        



                                                               34  

individuals with disabilities,"                                                                                                                                             

                                                                   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  



                               35  

                                                                                                                                                                            

employment."                        Both statutes expressly prohibit employers from discriminating against  



                                                                              36  

                                                                                     

employees on the basis of disability. 



                                                                                                                                                                                       

                             The statutes' protections do not, however, extend to an employee who is  



                                                                                                                                                                               

terminated because he cannot "perform the essential functions of [his] position . . . (with  



                                                                                             37  

                                                                                                                                                                                   

or  without  reasonable  accommodation)."                                                              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, jobtraining,andotherterms,conditions, and privilegesofemployment.");  

                                                                                                                                                         

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 ofthe 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-Herrerav. 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]"); AS18.80.220(a)(1)(prohibitingdisabilitydiscrimination only"when the  

                                                                                                                                                                                     

reasonable demands of the position do not require distinction on the basis of . . . physical  

                                                                                                                                                                        

                                                                                                                                                              (continued...)  



                                                                                         -21-	                                                                                  7257
  


----------------------- Page 22-----------------------

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                                                             

                      38   This is because "[i]t is an essential function of a job . . . [to] be able to  

his position.                                                                                                                                        



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, N                                     O. 915.002, E           NFORCEMENT  

                               

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...)  



                                                                        -22-                                                                   7257
  


----------------------- Page 23-----------------------

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 fromthe                    employee's disability. First,                                 the rule that the employee has violated must  



                                                                                                                                                                                           40  

be "job-related for the position in question and . . . consistent with business necessity."                                                                                                      



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  

                                                                                                                                                                           



besatisfied when theemployeeviolates aworkplaceviolence policy becausecompliance  

                                                                                                                                                                      



with that policy is job-related and necessary.  

                                                                            



                              Second, the employee's failure to adhere to the workplace violence policy  

                                                                                                                                                                                 

cannot betheresult oftheemployer's failuretoreasonably accommodatetheemployee.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.").  



                                                                                           -23-                                                                                     7257
  


----------------------- Page 24-----------------------

                                                                                      43  

need for reasonable accommodation.                                                         Third, "collateral assessment of disability [must]                                                



                                                                                                      44  

play[] no role in the decision to dismiss."                                                                                                                                                           

                                                                                                              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 G               UIDANCE,  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).  

                                                                                                                                                                                



                                                                                                  -24-	                                                                                          7257
  


----------------------- Page 25-----------------------

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  

                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                               46  is that he "did . . . not  

argument, similar to the one we addressed in Part IV.B.3, supra,  

                                                                                                                                                                                                                                                                          



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  

threateningconduct. Toalstonwas                                                                                awareofNicolos's                                             depression andwas                                              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));                                                        

                                                         UIDANCE,  supra  note 38, 1997 WL 34622315, at *10.                                                                                                             

see also                   EEOC G 



                      46                    See also supra note 18.  

                                                                                                             



                                                                                                                                       -25-                                                                                                                               7257
  


----------------------- Page 26-----------------------

                                                                                          47  

case to          Walton v. Spherion Staffing LLC                                         ,   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                                                                                            

                          48    But the Board found that Nicolos did more than ask for help - it found  

protections.                                                                                                                                                                         



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.  



                                                                                            -26-                                                                                       7257  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC