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 courts order approving the Borough Personnel Boards decision affirming his discharge. He claims that his statements did not constitute threats or other misconduct under the Boroughs 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 (ADA) and the Alaska Human Rights Act (AHRA). We reject Nicoloss claims of error and affirm the judgment of the superior court approving the Personnel Boards 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 didnt feel safe in my workplace, then I feel my employees shouldnt 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 Nicoloss homicidal ideation. The nature of Nicoloss comments to Webb and the content of Webbs 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 Toalstons 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 [Nicoloss] supervisor, ... Toalston ..., [about] the homicidal statements made by [Nicolos]. The notes do not mention a hit list or premeditated plan to kill.
C. The Boroughs Response To The Alleged Threats
Toalston later testified at the Personnel Board hearing that after receiving the call from Webb about Nicoloss 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 Webbs 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 Boroughs 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.
Price Leavitt, a deputy director in the Department and Toalstons supervisor, testified that the Department held an emergency meeting to decide how to deal with Nicoloss statements to Toalston and Webb. Leavitt testified that following this meeting, the Department put security measures into the [Departments] 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 Nicoloss alleged misconduct. In conducting this investigation, Leavitt talked to Toalston twice, reviewed the Boroughs personnel rules, and consulted with the Boroughs 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 Nicoloss discipline was delegated to another deputy director in the Department, who decided to proceed with Nicoloss 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 Webbs 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 Nicoloss 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 Boards 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 Nicoloss 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 Nicoloss 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 Boroughs 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 Nicoloss termination did not violate the ADA or the AHRA. The Board assumed that Nicolos was disabled and that Nicoloss 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 Boroughs 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 [Nicoloss] threats.
E. The Superior Courts Decision
Nicolos filed an appeal in the superior court. The court reversed the Boards findings that Nicoloss 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 Boards conclusion that Nicoloss statements violated the personnel rule requiring Nicolos to work effectively, amenably, and courteously. The court affirmed Nicoloss termination.
III. STANDARD OF REVIEW
In this appeal from the Borough Personnel Board-an administrative agency -we independently review the Boards decision without giving deference to the superior courts intermediate review. We accept the Boards 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.
With respect to questions of law, we apply either the reasonable basis test or the substitution of judgment standard.
The reasonable basis test applies when reviewing questions of law involving agency expertise or the determination of fundamental policies within the scope of the agencys statutory functions. Under this test, we seek only to determine whether the agencys decision is supported by the facts and has a reasonable basis in law, even if we may not agree with the agencys ultimate determination. The substitution of judgment standard, in contrast, applies to 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 agencys decision had 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.
Nicolos asserts that we must accept the superior courts ruling reversing the Personnel Boards determination that Nicoloss 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] appellees argument may involve an attack upon the reasoning of the lower court or an insistence upon [a] matter overlooked or ignored by it. 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-appeal. We are not bound by the superior courts ruling on Nicoloss threats, because our reversal of that ruling (in the following section) serves only to provide a basis for affirming the superior courts ultimate judgment approving the Boards decision. Reversal of the ruling does not alter the rights of the parties under the superior courts judgment or the Boards decision.
B. The Personnel Board Did Not Err In Finding That Nicolos Violated Personnel Rules Prohibiting Workplace Violence.
We turn now to Nicoloss 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 Boroughs personnel rules. Nicolos urges us to interpret the personnel rules as allowing discipline only for misconduct, attacks the Boards factual findings, and argues that the Boards 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 Boroughs personnel rules prohibiting workplace violence.
The superior court ruled that an employee cannot commit a punishable threat under the Boroughs 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 employees behavior constitutes misconduct.
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. 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 Boroughs personnel rules. However, we decline to resolve this dispute because our conclusion would be the same 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.
We disagree with the superior courts 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 § 3.03.1s prohibition against threatening or intimidating behavior, we look to § 3.03.2(F). This provision defines threat in objective terms: the question is whether an employees 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 Nicoloss argument that only misconduct can qualify as a punishable threat. Nicolos does not explain what he means by misconduct, but he 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 employees actions as opposed to the consequences of those actions would undermine the workplace violence policys function of preserving a safe work environment.
Therefore, we conclude that under the Boroughs 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 Boards determinations that Nicoloss 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 Boroughs personnel rules. In evaluating Nicoloss argument, we must accept the Boards 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 Boards determinations that Nicoloss statements could be interpreted by a reasonable person as conveying intent to cause harm: these are factual findings subject only to substantial evidence review.
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 Boards 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 Nicoloss 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 (Nicoloss 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 decision, Webb, a licensed professional counselor, was permitted to reveal Nicoloss confidential statements only if she determined there was a clear and immediate probability of physical harm to [Nicolos], other individuals, or society. 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. Webbs 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 Toalstons and Pilis testimony about Webbs disclosure.
On appeal Nicolos attacks Toalstons credibility. He notes that some of her testimony was contradicted by other evidence in the hearing record (for example, Amlings testimony and Webbs 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. Significantly, Nicolos does not address the fact that Toalstons testimony was corroborated by Pilis; and as explained above, both Toalstons and Pilis testimony was corroborated by Webbs apparent determination that Nicoloss statements warranted breaching confidentiality.
Nicolos points out that Toalstons and Pilis testimony about Webbs disclosure was hearsay. But the Board was permitted to consider hearsay under the procedural rules governing its hearings. The hearsay was not inherently unreliable, as Toalstons and Pilis testimony was mutually corroborating and was also corroborated by Webbs decision to breach confidentiality and Toalstons contemporaneous email to Borough employees. And the hearsay did not jeopardize[ ] the fairness of the proceeding[ ], 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.
Nicoloss 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 Toalstons and Pilis testimony indicates that they interpreted Nicoloss statement literally. Both testified that they were frightened by Webbs disclosure; Toalston testified she became so nervous that she became ill.
The Department and the district court also both took Nicoloss statement seriously. The Department put security measures in place, and the district court issued a protective order to Toalston. The nature of Nicoloss 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.
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 Boroughs 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 Boroughs actions in this case may have the effect of discouraging healthcare providers 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 Boroughs Mayor and Assembly, which approved the personnel rules at issue in this case. We therefore reject Nicoloss policy argument.
C. Any Deficiencies In The Boroughs 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. He notes that Leavitt, the deputy director 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 Leavitts investigation was inadequate, because even assuming it was, any inadequacies were remedied by subsequent administrative procedures. 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 Boroughs 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 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. Nicoloss Discharge Did Not Violate The ADA Or The AHRA.
Nicoloss 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. Also, Nicoloss 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.
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 employees violations of the employers workplace violence policies.
Congress enacted the ADA in order to eliminate discrimination against 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 employment. Both statutes expressly prohibit employers from discriminating against 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 or without reasonable accommodation). And an employee who violates the employers 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. 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. Thus, an employees violation of a workplace violence policy may furnish a lawful ground for the employees termination even if the violation stems from the employees 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 employees disability. First, the rule that the employee has violated must 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. 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 employees failure to adhere to the workplace violence policy cannot be the result of the employers failure to reasonably accommodate the employee. 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 need for reasonable accommodation. Third, collateral assessment of disability [must] 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 Boards 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 Nicoloss earlier conversation with his supervisor, justified the Boards conclusion that Nicolos had violated the personnel rules on workplace violence. These violations were the basis for Nicoloss discharge.
We conclude the Board properly determined that Nicoloss 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 coworkers would always be in fear for their safety. This determination is supported by Pilis and Toalstons testimony and also consistent with a common-sense understanding of human nature.
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 Boards 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 , 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 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 ADAs 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 ADAs protections. 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 Boards discharge decision.
42 U.S.C. §§ 12101 -12213 (2012).
AS 18.80.010 -.300.
The superior court subsequently vacated this order, apparently on the ground that it was not supported by sufficient competent evidence. But the vacatur occurred after the Borough discharged Nicolos and after the Personnel Board rendered its decision.
As explained below, we affirm the superior courts approval of the Boards decision. We disagree, however, with the superior courts ruling that Nicoloss statements did not constitute threats under the personnel rules. See infra Part IV.B.1. Moreover, we do not address the superior courts ruling that Nicolos violated the personnel rule requiring him to work effectively, amenably, and courteously with his coworkers.
See Keiner v. City of Anchorage , 378 P.2d 406, 410 (Alaska 1963).
Heller v. State, Dept of Revenue , 314 P.3d 69, 72 (Alaska 2013).
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) ).
Davis Wright Tremaine LLP v. State, Dept of Admin. , 324 P.3d 293, 299 (Alaska 2014).
Id. (quoting Marathon Oil Co. v. State, Dept of Nat. Res. , 254 P.3d 1078, 1082 (Alaska 2011) ).
Id. (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co. , 746 P.2d 896, 903 (Alaska 1987) ).
Id.
Id. (alteration in original) (quoting Tesoro Alaska , 746 P.2d at 903 ).
Ransom v. Haner , 362 P.2d 282, 285 (Alaska 1961).
El Paso Nat. Gas Co. v. Neztsosie , 526 U.S. 473, 479, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999) (quoting United States v. Am. Ry. Express Co. , 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924) ); see, e.g. , Peterson v. Ek , 93 P.3d 458, 467 (Alaska 2004) (declining to address appellees arguments concerning damages awarded to appellant); Jackson v. Nangle , 677 P.2d 242, 247 n.3 (Alaska 1984) (declining to address appellees argument relating to an offset of damages); Alaska Brick Co. v. McCoy , 400 P.2d 454, 457 (Alaska 1965) (declining to address appellees argument that his attorneys fees award should be increased).
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).
State v. Schmidt , 323 P.3d 647, 655 (Alaska 2014) (quoting State v. Anthony , 810 P.2d 155, 157 (Alaska 1991) ).
See Shirk v. United States ex rel. Dept. of Interior , 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, Dept 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, Dept of Pub. Safety , 288 P.3d 94, 99 (Alaska 2012) ) ).
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 Nicoloss effort to be open and honest with Webb was [not] anything but proper.
Cf. Becker v. Fred Meyer Stores, Inc. , 335 P.3d 1110, 1116 (Alaska 2014) (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) ) ).
AS 08.29.200(a)(1). There are other statutory grounds for disclosure, but none apply in this case. AS 08.29.200.
AS 08.29.200(a)(1).
Moreover, the Boards task was to determine whether there was just cause to support the Departments 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, Dept 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.
McKitrick v. State, Pub. Emps. Ret. Sys. , 284 P.3d 832, 837 (Alaska 2012) (quoting Lindhag v. State, Dept of Nat. Res. , 123 P.3d 948, 952 (Alaska 2005) ).
See NSBC 2.20.180(F) (2017) (The formal rules of evidence are not applicable [in hearings before the Board].).
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.).
Id.
As Toalston and Pili are presumably reasonable persons, their subjective reactions to Nicoloss statements provide some evidence of how an objectively reasonable person could understand Nicoloss statements. Munson v. State , 123 P.3d 1042, 1053 n.58 (Alaska 2005).
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 , 421 P.3d 15, 23, n.53, 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.).
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) ) ).
The Board did not make any findings or conclusions about the quality of the Boroughs investigation into Nicoloss misconduct, even though Nicolos raised the issue. The superior court found that the Boroughs investigation of Nicolos did not perfectly follow its regulations, but concluded-as we do, infra -that this error was harmless.
See Kalmakoff v. State, Commercial Fisheries Entry Commn , 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, Dept of Corr. , 73 P.3d 1230, 1236 (Alaska 2003) ; Municipality of Anchorage v. Carter , 818 P.2d 661, 666 n.13 (Alaska 1991).
State v. Schmidt , 323 P.3d 647, 655 (Alaska 2014) (quoting State v. Anthony , 810 P.2d 155, 157 (Alaska 1991) ).
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.
Enyart v. Natl Conference of Bar Examrs, Inc. , 630 F.3d 1153, 1160 (9th Cir. 2011).
AS 18.80.200(b).
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 persons ... physical or mental disability... when the reasonable demands of the position do not require distinction on the basis of ... physical or mental disability....).
Smith , 240 P.3d at 843 (quoting Moody-Herrera v. State, Dept 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 or mental disability).
See Equal Empt Opportunity Commn, 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 EEOCs non-regulatory guidance is not binding on us, ONeal 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 , 195 Cal.App.4th 143, 125 Cal.Rptr.3d 1, 21-24 (2011).
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 posed.
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).
Den Hartog v. Wasatch Acad. , 129 F.3d 1076, 1086 (10th Cir. 1997) (emphasis omitted).
EEOC Guidance , supra note 38, 1997 WL 34622315, at *15 ; see Moody-Herrera v. State, Dept of Nat. Res. , 967 P.2d 79, 87 (Alaska 1998) ([AHRA] imposes a duty on an employer to reasonably accommodate a disabled employee.).
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.).
Newberry v. E. Tex. State Univ. , 161 F.3d 276, 280 (5th Cir. 1998).
The Boards 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 Nicoloss depression and was perhaps aware of his disability more generally. But to trigger the Boroughs 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.
See also supra note 18.
152 F.Supp.3d 403 (E.D. Pa. 2015).
See id. at 406.