This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-98-1754

Tou B. Thao,

Relator,

vs.

Hmong American Partnership,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed March 30, 1999

Reversed

Harten, Judge

Department of Economic Security

Agency File No. 3960UC98

Lori J. LeCount, Larry J. Peterson & Associates, 250 Wright Building, 2233 University Avenue W., St. Paul, MN 55114-1629 (for relator)

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.

U N P U B L I S H E D O P I N I O N

HARTEN, 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.

FACTS
Relator worked for respondent employer, a non-profit agency providing social services to the Hmong community, from 1992 until his termination in 1998. In late 1997, a client's husband charged relator with sexually harassing the client, a charge that relator denied. The employer investigated and found no evidence of misconduct. The client, however, filed a complaint with the police. In preparation for his police interview, relator met with William Yang, the employer's executive director.

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.

D E C I S I O N

We must view the findings of the commissioner "in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Whether an employee was properly disqualified from receiving benefits is a question of law upon which reviewing courts remain free to exercise their independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The commissioner's determination that an employee committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). We will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion on those facts is not contrary to the statutory mandate." Id. The employer has the burden to show that it discharged the employee due to misconduct. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977). An employee discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 10(1) (Supp. 1997).[1]

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).

Reversed.

[1] 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.