may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Tou B. Thao,
Hmong American Partnership,
Commissioner of Economic Security,
Filed March 30, 1999
Department of Economic Security
Agency File No. 3960UC98
Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.
Respondent-employer discharged relator-employee and relator filed for reemployment benefits under Minn. Stat. § 268.07 (1998). Relator now challenges the determination of a representative of the Commissioner of the Department of Economic Security that he was discharged due to misconduct. We conclude that the employer did not meet its burden of proof to show that relator was discharged for misconduct. We therefore reverse.
There was testimony about this meeting from Yang, from relator, and from the employer's director of self-sufficiency, Tsu Chue Vang. Relator testified that he told Yang that in 1995 or 1996 he had had "a lady [client] who rented a hotel inviting me to discuss about her life in this country." Yang's testimony corroborates this: he testified that relator told him that he had had a relationship with a former client and that they had been to a hotel.
Vang's testimony about the meeting differed from relator's and Yang's.
[A]nd that day I'm not in the office, but [relator] himself went to Mr. Yang, in his office, and admits himself that he has sexual intercourse, sexual intercourse relate with client.
Vang went on to testify that relator later admitted to Vang that he had had sexual intercourse with a client. Relator was terminated solely because of his statements about having met a client in a hotel in 1995 or 1996. The representative of the commissioner of economic security, relying on Vang's testimony, held that relator was discharged for misconduct.
The commissioner correctly states that sexual harassment is misconduct. See Redalen v. Farm Bureau Life Ins. Co., 504 N.W.2d 237, 238 (Minn. App. 1993) (sexual harassment of employee constitutes misconduct); Reed v. Minnesota Dep't of Transp., 422 N.W.2d 537, 540 (Minn. App. 1988) ("[H]arassment of the female workers, by itself, constituted misconduct connected with the workplace."), review denied (Minn. June 29, 1988). But there has been no showing that relator sexually harassed anyone. It is unknown when, where, and with whom the alleged harassment occurred. The employer testified that "there is no proof other than what [relator] admitted himself to us. So there's no other evidence, and there is no other proof." Relator testified that "Nothing happened" at the hotel and that he did not have a sexual relationship with the client who met him there. We conclude that the employer did not meet its burden of proof to show that relator committed sexual harassment. Marz, 256 N.W.2d at 289 (employer has burden of proof on misconduct).
 We note that the commissioner's representative cited the statutory definition of misconduct set out in Minn. Stat. § 268.09, subd. 12. However, this definition was not adopted until 1997, after the alleged misconduct occurred.