Nicolos v. North Slope Borough , 424 P.3d 318 ( 2018 )


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