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Nicolos v. Borough

Supreme Court of Alaska

July 13, 2018


          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.


          BOLGER, JUSTICE.


         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.


         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]


         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]


         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 ...

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