Gradine v. College of St. Scholastica

• Decision Date: 05 July 1988
• Docket Number: No. C4-88-326,C4-88-326
• Citation: 426 N.W.2d 459
• Parties: 47 Fair Empl.Prac.Cas. (BNA) 307, 47 Ed. Law Rep. 1169 Richard L. GRADINE, Respondent, v. COLLEGE OF ST. SCHOLASTICA, Relator, Commissioner of Jobs and Training, Respondent.
• Court: Minnesota Court of Appeals

Page 459

426 N.W.2d 459

47 Fair Empl.Prac.Cas. (BNA) 307, 47 Ed. Law

Rep. 1169

Richard L. GRADINE, Respondent, v. COLLEGE OF ST. SCHOLASTICA, Relator Commissioner of Jobs and Training, Respondent.

No. C4-88-326.

Court of Appeals of Minnesota.

July 5, 1988.

Review Denied Aug. 24, 1988.

Syllabus by the Court

1. The Commissioner properly determined that respondent employee's actions did not constitute sexual harassment of another employee.

2. Respondent did not engage in misconduct for unemployment compensation purposes.

Thomas J. Bieter, Duluth, for Richard L. Gradine.

Joseph J. Roby, Jr., Johnson, Killen, Thibodeau & Seiler, P.A., Duluth, for College of St. Scholastica.

Hubert H. Humphrey, III, Atty. Gen., Peter C. Andrews, Sp. Asst. Atty. Gen., St. Paul, for Com'r of Jobs and Training.

Heard, considered and decided by SCHUMACHER, P.J., and FOLEY and FORSBERG, JJ.

OPINION

FORSBERG, Judge.

Relator-employer College of St. Scholastica ("college") seeks review of a determination that respondent Richard Gradine, a former college employee, did not sexually harass a fellow employee. We agree with the Department of Jobs and Training that Gradine's actions did not constitute sexual harassment, and therefore affirm the department's award of unemployment benefits to Gradine.

FACTS

In March 1987, Gradine began working for the college as an assistant plant supervisor. Gradine's responsibilities included hiring and supervising a group of students who worked for the college during the summer. Gradine assigned one of these students, Ann Marie Donlin, special duties, and when other students complained that Donlin was receiving preferential treatment, Gradine's supervisor transferred Donlin to a campus switchboard position. After Donlin's transfer, Gradine was no longer her supervisor.

Prior to Donlin's transfer, Gradine had been experiencing recurring dreams in which Donlin was driving her car and became involved in an accident with an animal on the road. Gradine was worried about these dreams, and with Donlin's permission, he installed a set of game whistles on her car.

On July, 19 or 20, 1987, after Donlin had been transferred to the campus switchboard position, Gradine wrote her a 2-page letter, stating that he had begun experiencing strong personal feelings of affection and love for her. On July 21, 1987, Gradine asked Donlin to meet him at an off-campus restaurant after work. At the restaurant, Gradine gave Donlin his letter, and repeated his feelings to her in person. After the two left the restaurant, Gradine telephoned Donlin at home, and attempted again to explain his feelings for her.

On July 22, 1987, Donlin was not at work, and Gradine telephoned her at home and asked her to lunch. Donlin said she could not go, and Gradine asked her whether she knew of any available housing, because he was experiencing marital difficulties. Donlin indicated that she could not help him, but suggested that he look at bulletin board listings.

On the morning of July 23, 1987, Gradine placed a note on Donlin's car which stated: "I Deeply Love you and always will forever--My Love." Shortly thereafter, Gradine went to see Donlin, who was working at her job as campus telephone operator. Gradine asked to look at Donlin's work schedule, stepped behind her, and began massaging Donlin's neck and shoulder. At that point, Donlin told Gradine to stop immediately, and stated that she did not want to have anything to do with him. Gradine stopped what he was doing, and left the area. Later that morning, he received a handwritten note which Donlin had written the day before. The note stated:

This to inform you that I no longer want to have any kind of contact with you. No phone calls to me at home, or work. No personal conversation at all. * * *

Later that same day, Donlin contacted the college to complain about Gradine's actions. The assistant vice president of finance, who also acted as an assistant in personnel matters, listened to Donlin's story, and then spoke to her superior, who contacted Gradine's supervisor. Gradine was paged, and admitted writing the letter to Donlin, telephoning her, and massaging her neck and shoulders. Without requesting any further information, the college immediately discharged Gradine from his employment.

Gradine applied for unemployment compensation, and a hearing was conducted by a referee from the Department of Jobs and Training. The referee determined that Gradine had been discharged for misconduct, and was therefore disqualified from receiving benefits. The referee noted that Gradine had testified "in a forthright and seemingly credible manner," while the college had relied upon hearsay, and had not presented testimony by Donlin herself. Nevertheless, the referee reasoned:

The claimant was in a supervisory capacity over the student until the final week of his employment which included the specific events leading to his discharge. In addition, the claimant is 23 years older than the student ¹. Both of these factors tend to create an imbalance in the relative positions of the claimant and the student[.]

* * *

* * *

There was no evidence offered by the claimant that such physical contact was requested or even desired by the female student. * * * The touching was sexually provocative and totally inappropriate. * * * The claimant's actions clearly went beyond the standards of behavior an employer has a right to expect of its employees.

Gradine appealed the referee's decision to a Commissioner's representative, who reversed the referee's decision, finding it was not in accordance with the evidence and the law. The Commissioner reasoned:

It is abundantly clear from the evidence of record that the essential character of the claimant's behavior was misguided infatuation rather than unwelcome sexual harassment.

The Commissioner found that until July 23, Gradine's overtures were at no time discouraged by Donlin. The Commissioner also found that Gradine's testimony "clearly shows that he did not understand until he was directly told by the student on July 23, 1987, that the feelings that he had for her were not mutual." Because Donlin had not clearly rejected Gradine's overtures and because Gradine was not aware that his touching was unwelcome, the Commissioner refused to characterize Gradine's conduct as sexual harassment.

The Commissioner also refused to adopt the college's argument that Gradine had violated its policy regarding sexual harassment. The Commissioner noted that the college's policy distinguished between romantic relationships and sexual harassment, and did not expressly circumscribe personal relationships between employees and students. The Commissioner reasoned that because Gradine's conduct was romantically motivated, the college's policy was not violated.

Finally, the Commissioner found that Gradine's age and previous position as Donlin's supervisor did not create the imbalance found by the referee, since (a) Donlin was over the age of majority; and (b) at the time of the incidents, Gradine was no longer Donlin's supervisor.

The college has obtained a writ of certiorari to review the Commissioner's decision.

ISSUES

1. Did the Commissioner properly determine that Gradine's conduct did not constitute sexual harassment?

2. Were Gradine's actions a violation of the college's policy against sexual harassment?

3. Did public policy reasons compel the termination of Gradine as a result of Donlin's allegations of sexual harassment?

4. Did Gradine's actions constitute misconduct even if he did not engage in sexual harassment?

5. Did Gradine's conduct constitute assault and battery, and therefore gross misconduct?

ANALYSIS

1. Minn.Stat. Sec. 268.09, subd. 1(2) (1986) provides that an employee who engages in misconduct is disqualified from receiving unemployment compensation benefits. We have held that an employee's harassment of other employees may constitute misconduct for unemployment compensation purposes. Reed v. Minnesota Dept. of Transportation, 422 N.W.2d 537, 539 (Minn.Ct.App.1988), pet. for rev. filed (Minn. June 3, 1988).

"Sexual harassment" while not defined for misconduct purposes, has been defined within the provisions of the unemployment compensation statutes governing an employee's voluntary separation from employment:

Sexual harassment means unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other conduct or communication of a sexual nature[.]

Minn.Stat. Sec. 268.09, subd. 1(1) (1986). While this definition is not specifically applicable to cases involving employee misconduct, it does provide some guidance in determining what the legislature considers "sexual harassment." A similar definition of sexual harassment is found within the statutes governing the Department of Human Rights:

"Sexual harassment" includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature[.]

Minn.Stat. Sec. 363.01, subd. 10a (1986).

Here, the Commissioner's representative found that Gradine's actions simply did not rise to the level of sexual harassment. In challenging the Commissioner's determination, the college raises questions of both fact and law.

(a) Factual Issues

With regard to factual issues, this court's scope of review is limited. Viewing the evidence in the light most favorable to the Commissioner's findings, we must determine whether there is evidence sufficient to sustain those findings. White v. Metropolitan Medical Center, 332 N.W.2d 25, 26 (Minn.1983). Specifically, questions regarding the credibility of witnesses are to be determined by the Commissioner, and this court may not substitute its judgment, but should defer to the Commissioner's determinations. Cary v. Custom Coach, Inc., 349 N.W.2d 331, 332 (Minn.Ct.App.1984). The Commissioner's findings, and not those of the referee, are the subject of this court's...