Appeal
from the Superior Court of the State of Alaska, Second
Judicial District, Barrow, Angela Greene, Judge. Superior
Court No. 2BA-15-00178 CI
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.
OPINION
BOLGER, JUSTICE.
I.
INTRODUCTION
The
North Slope Borough discharged employee Tom Donovan Nicolos
after he made statements that Borough employees interpreted
as threats. Nicolos appeals from the superior court's
order approving the Borough Personnel Board's decision
affirming his discharge. He claims that his statements did
not constitute threats or other misconduct under the
Borough's personnel rules and that the Borough failed to
conduct an adequate investigation into his alleged misconduct
before terminating him. Nicolos also claims that his
purportedly threatening statements were manifestations of a
disability and that his discharge violated the Americans with
Disabilities Act[1] (ADA) and the Alaska Human Rights
Act[2]
(AHRA). We reject Nicolos's claims of error and affirm
the judgment of the superior court approving the Personnel
Board's decision.
II.
FACTS AND PROCEEDINGS
A.
The First Alleged Threat
Nicolos
began working in Utqiagvik (then called Barrow) for the North
Slope Borough Department of Public Works in 2013. At some
point Nicolos began having thoughts of harming himself and
harming others - thoughts that Nicolos would later
characterize as "unwelcome." The thoughts
persisted, and one day in January 2015 he "woke up
feeling the worst that [he] had."
Following
advice from his parents, Nicolos went to work and immediately
sought out his supervisor, Brittney Toalston, to inform her
about his unwelcome thoughts of harm. Meeting in their shared
office, Nicolos told Toalston that he "was not in a good
place, . . . d[id] not want to hurt others, . . . did not
want to hurt [him]self, and . . . did not want to go to
jail." Toalston later testified to the Personnel Board
that during this conversation Nicolos was "[v]ery
agitated, stressed, and really red in the face" -
"like he was very fidgety and he had to do
something."
Toalston
knew from previous conversations with Nicolos that he
"ha[d] access to firearms and weapons." As a
result, Toalston "became very scared for [her]self and
[her] employees." She moreover did not "know how
[she and the other employees] were going to act or work with
somebody who said something like that." She advised
Nicolos to clock out and seek treatment, and she sent her two
other subordinates home for the day. She later testified,
"[I]f I didn't feel safe in my workplace, then I
feel my employees shouldn't be at work either."
B.
The Second Alleged Threat
Nicolos
left the workplace, as instructed by Toalston, but was unable
to obtain immediate treatment in Utqiagvik. He flew to
Anchorage that evening, and the next day he had a counseling
session at Providence Alaska Medical Center with Mandie Webb,
LPC.
After
she met with Nicolos, Webb contacted Toalston and two
Department employees that day to warn them about
Nicolos's "homicidal ideation." The nature of
Nicolos's comments to Webb and the content of Webb's
disclosure to Toalston and the others are disputed. According
to Toalston, Webb told her Nicolos "had expressed . . .
that he had a list of people that he wanted to hurt either
with guns or weapons," that Toalston "was number
one on his list," and that "next was [Department
employee] Ekatarina Pili and then [former Department
employee] Pam Amling." Pili, one of the two other
individuals warned by Webb, corroborated Toalston's
account. She testified, "[Webb] told us pretty much that
. . . [Nicolos] had either planned or premeditated to come to
the workplace and open fire."
Amling,
who also received a warning from Webb, gave a different
account. She testified that she "d[id] not remember
[Webb] saying anything about a plan to kill anybody" and
that instead Webb had informed her that Nicolos had been
"having feelings of hurting himself and such." For
his part, Nicolos testified that he did not tell Webb he had
a plan to kill his supervisor or anyone else.
Rather, he told Webb he had been having thoughts -
"unwelcome" thoughts - of harming his supervisor.
Further he did not know when he made his comments to Webb
that she would disclose them to Toalston. Webb did not
testify at the Personnel Board hearing. But her notes,
introduced at that hearing, state that she "contacted
[Nicolos's] supervisor, . . . Toalston . . ., [about] the
homicidal statements made by [Nicolos]." The notes do
not mention a hit list or premeditated plan to kill.
C.
The Borough's Response To The Alleged
Threats
Toalston
later testified at the Personnel Board hearing that after
receiving the call from Webb about Nicolos's homicidal
ideation, she cried and was "in shock." Toalston
also testified that she "became sick to [her]
stomach" and vomited. Similarly, Pili testified that she
was "really kind of distraught and shocked" after
receiving Webb's call. She thought there was "a high
possibility that [Nicolos] could come to work and do whatever
. . . [Webb] had said."
On
January 14, the same day Webb contacted her, Toalston sent an
email to the Borough's human resources and legal
departments, her supervisor, and the Director of Public Works
summarizing her conversation with Webb. The email stated that
Webb had said "she ha[d] a legal obligation to reach out
to each of [the warning recipients] to let [them] know that
[Nicolos] ha[d] planned and ha[d] wanted to use firearms on
all three [employees] in the office." The email further
stated:
[Pili] and I will both submit restraining orders on [Nicolos]
for fear of our lives.
Please - please let me know if there is anything else we can
do. Because right now you have two women ([Pili] and myself)
tearing up with the fact that [Nicolos] has a possibility of
coming back to our office . . . .
Toalston
later did obtain a protective order against
Nicolos.[3]
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 oath and presented other
evidence, including Webb's notes. Nicolos testified that
he had not intended to threaten anybody and that
"[h]aving a feeling, an idea or an emotion is not in
fact a threat or threatening." He further explained that
his homicidal thoughts had been caused by a traumatic brain
injury in his youth, that he was being treated for the
injury, and that he no longer experienced the thoughts.
Following
the hearing, on March 2, the Borough terminated Nicolos. The
notice of discharge from the Director stated that the basis
for the discharge was Nicolos's statements to Webb about
his homicidal thoughts. The Director determined that these
statements "violat[ed] . . . the Personnel Rules and
Regulations on violence in the workplace and m[et] the
definition of a 'threat.' "
D.
The Personnel Board's Hearing And
Decision
Nicolos
appealed his termination to the Borough Personnel Board. In
June 2015 the Board held a two-day hearing. In addition to
the evidence summarized above, Nicolos and Amling testified
that Toalston had been a verbally abusive supervisor.
Toalston, however, denied mistreating Nicolos. Nicolos also
offered the testimony of his psychiatrist, who explained that
Nicolos was no longer homicidal and that he posed no danger.
The psychiatrist testified that there is a "huge
difference" between thoughts and planning, and she
asserted that "at no point in the documentation did
[she] find any . . . evidence that [Nicolos] was having
intention of acting on [his homicidal] thoughts." The
Board concluded that just cause existed to discharge Nicolos.
The Board found that Nicolos's statements to Toalston
about not being in a good place and not wanting to hurt
anyone "constituted an indirect threat, as the . . .
statements could be interpreted by a reasonable person as
implying that [Nicolos] ha[d] intent to cause physical
harm." Further, the Board found that Nicolos's
statement to Webb about a "premeditated plan to use
firearms to harm or kill" his coworkers was a
"direct threat."
The
Board thus determined that Nicolos had violated the
Borough's personnel rules prohibiting violence and
threats in the workplace, as well as its personnel rule
requiring employees to "work effectively, amenably and
courteously" with their coworkers.
The
Board also determined that Nicolos's termination did not
violate the ADA or the AHRA. The Board assumed that Nicolos
was disabled and that Nicolos's purported threats were a
manifestation of this disability. But the Board found that
there was "no evidence that [Nicolos] was terminated
because of his disability." It found that Nicolos
"cannot be considered 'otherwise qualified' to
perform the essential duties of his job, because threats of
violence violated the Borough's policy against violence
in the workplace." The Board further found that
"there was no reasonable accommodation that could be
made for [Nicolos], as his co-workers would always be in fear
for their safety due to [Nicolos's] threats."
E.
The Superior Court's Decision
Nicolos
filed an appeal in the superior court. The court reversed the
Board's findings that Nicolos's statements to
Toalston and Webb constituted threats that violated the
personnel rule against violence in the workplace. It reasoned
that the rule "require[d] an employee to have intended
to make a threat" and that "[n]o reasonable person
[could] find that Nicolos intended to threaten anyone when he
sought help for his mental health issues." The court
approved, though, the Board's conclusion that
Nicolos's statements violated the personnel rule
requiring Nicolos to work effectively, amenably, and
courteously. The court affirmed Nicolos's
termination.[4]
III.
STANDARD OF REVIEW
In this
appeal from the Borough Personnel Board - an administrative
agency[5] - we "independently review" the
Board's decision without giving deference to the superior
court's intermediate review.[6] We accept the Board's
findings of fact so long as they are supported by
"substantial evidence," meaning "such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion."[7]
With
respect to questions of law, we apply either the
"reasonable basis test" or the "substitution
of judgment standard."[8] The reasonable basis test applies
when reviewing "questions of law involving 'agency
expertise or the determination of fundamental policies within
the scope of the agency's statutory functions.'
"[9] Under this test, we seek only "to
determine whether the agency's decision is supported by
the facts and has a reasonable basis in law, even if we may
not agree with the agency's ultimate
determination."[10] The substitution of judgment standard,
in contrast, applies "to questions of law where no
agency expertise is involved."[11] Under this standard,
"we may 'substitute [our] own judgment for that of
the agency even if the agency's decision had a reasonable
basis in law.' "[12]
IV.
DISCUSSION
Nicolos
claims that the Personnel Board erroneously determined he
made threatening comments and violated the Borough personnel
rules, that the Borough failed to conduct an adequate
investigation before deciding to discharge him, and that the
Borough violated the ADA and the AHRA by discharging him
based on conduct arising from his disability. Before
proceeding to the first of these contentions, we resolve a
threshold matter.
A.
The Borough Was Not Required To File A
Cross-Appeal.
Nicolos
asserts that we must accept the superior court's ruling
reversing the Personnel Board's determination that
Nicolos's statements to Toalston and Webb constituted
threats because the Borough failed to cross-appeal this
ruling. But Nicolos misunderstands the cross-appeal
requirement. "[A]n appellee may urge . . . in defense of
a decree or judgment any matter appearing in the record, even
if rejected below and even if [the] appellee's argument
may involve an attack upon the reasoning of the lower court
or an insistence upon [a] matter overlooked or ignored by
it."[13] It is only when an appellee
"attack[s] [a] decree [or judgment] with a view either
to enlarging his own rights there under or of lessening the
rights of his adversary" that the appellee must file a
cross- appeal.[14] We are not bound by the superior
court's ruling on Nicolos's threats, because our
reversal of that ruling (in the following section) serves
only to provide a basis for affirming the superior
court's ultimate judgment approving the Board's
decision. Reversal of the ruling does not alter the rights of
the parties under the superior court's judgment or the
Board's decision.
B.
The Personnel Board Did Not Err In Finding That Nicolos
Violated Personnel Rules ...