The Alaska Supreme Court has upheld the dismissal of a public works employee who made statements that other employees in his workplace interpreted as threats.
Plaintiff Tom D. Nicolos claimed his statements did not constitute threats or misconduct under the personnel rules of the North Slope Borough Department of Public Works but were a cry for help due to a mental health crisis.
Nicolos allegedly told his boss he was “not in a good place” and was having homicidal thoughts. He then allegedly told a counselor that he had a “premeditated plan to use firearms to harm or kill people at his workplace.” The counselor notified Nicolos’ boss.
Nicolos said his discharge violated the Americans with Disabilities Act (ADA).
The Alaska Supreme Court recently upheld Nicolos’ dismissal, ruling that a threat need not be intentional to constitute violence in the workplace. Alaska’s high court said an employee can be punished for threatening statements or behavior “so long as it could be interpreted by a reasonable person as conveying intent to cause physical harm” Moreover, the Court said the ADA’s protection does not extend to an employee who is terminated because he cannot “perform the essential functions[his] position … (with or without reasonable accommodations.” The Court said it is an essential function of a job to refrain from making others in the workplace feel threatened for their own safety.
WOULD A REASONABLE PERSON PERCEIVE THE COMMENT AS THREATENING?
The Borough Personnel Office agreed Nicolos’ threats were a manifestation of his disability but said Nicolos violated the Borough’s policy against violence in the workplace. They concluded no reasonable accommodation could be made for Nicolos “as his co-workers would always be in fear for their safety due to [Nicolos’s] threats.”
An Alaska Superior Court judge said Nicolos approached his boss because he was seeking help and was not actually threatening violence. Nevertheless, the court said Nicolos violated personnel rules that require staff to work “effectively, amenably and courteously.” The court said Nicolos was not prejudiced by his employer’s failure to conduct an adequate investigation.
Nicolos was urged by his boss to get counseling, and went to Providence Alaska Medical Center. Afterward, Nicolos’ counselor contacted Nicolos’ boss to warn about his alleged “homicidal ideation.” Nicolos’ boss said the counselor told her that Nicolos said “he had a list of people that he wanted to hurt either with guns or weapons” and that his boss “was number one on his list.”
Nicolos’ psychologist said Nicolos was not a threat then and does not pose a threat to anyone today.