Gradine v. College of St. Scholastica

FOLEY, Judge

(dissenting).

I respectfully dissent. I totally disagree with the result in this case and believe it should be reversed. The majority opinion, by affirming the award to the employee Gradine, gives mere lip service to the statute that governs these matters. The law is that an employee is not entitled to unemployment compensation when that employee is discharged for misconduct. Here, there is ample proof of misconduct.

In just five or six days, no longer, 43-year-old Gradine fantasizes that he is in love with a 21-year-old female student employee to the point that he presumes the right to take personal liberties with that employee by attempting to massage her neck when she was at her work as a switchboard operator. The female student employee was offended and protested this conduct to the school authorities.

Gradine admitted that he had attempted to massage the young woman’s neck and that he had been calling her on the telephone and writing to her in those few days. He was immediately discharged. Gradine’s conduct was violative of school policy as well as the standard set forth in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973).

The majority measures this occurrence only from Gradine’s perspective, stating that Gradine did not intend to sexually harass the student. It is undisputed that he intended his acts. The determination of whether those acts constituted sexual harassment is an objective standard, and from an objective standard these acts constitute sexual harassment and thus misconduct.

The majority would have us believe this is nothing serious, it is just something that happens in the workplace. Who established the standard that women employees must accept this kind of conduct? And who established the standard that the employer’s compensation fund must be charged for that conduct?

The employer, College of St. Scholastica, discharged Gradine for his conduct toward the student when he admitted the act of attempting to massage the woman’s neck and other so-called expressions of love. What gave Gradine the right to presume to take this liberty? Does not an employee, male or female, have the right to carry out his or her duties to the employer without some implied understanding that noncon-sensual touching in the workplace is a condition of employment? See Tretter v. Liquipak Intern, Inc., 356 N.W.2d 713 (Minn.Ct.App.1984).

If the Commissioner is to be sustained here by ignoring the uninvited touching simply by referring to the act as an “infatuation,” then the law has no meaning. Gradine’s conduct was disruptive to the student’s carrying out her duties for her employer, and under Tilseth or any other standard, the Commissioner should be reversed.

It would have been better had the student testified, but the conduct was admitted by Gradine and the student’s testimony was therefore not essential to decision. It is undisputed that the student had not consented to this conduct, and she immediately reported the incident to the school authorities, which led to Gradine’s dismissal. It is clear the conduct was nonconsensual and could hardly be called office banter. The student was personally offended.

What message do we send out to women employees in the workplace? Is it that personal touching is to be allowed? I think not. To award unemployment here is to ignore misconduct without any evidence to support that decision and when the contrary is true.