*1 shown cause to allow its for cause shown sufficient claim. allowed still be should 803(c)(3)(ii)(1984). We will the trial court’s find disturb Minn.Stat. under § 524.3— Estate According provision, ings clearly unless erroneous. disagree. to We of Serbus, Serbus “any 381, does statute bar the nonclaim otherwise be which would claim upon allowance the barred hereunder There is ample evidence to petition if is shown and the court” cause findings. Hagadone court’s trial knew of filing of filing peti- filed before is the claim it was served with the when Id. estate. tion to settle the Although complaint. summons and the ex- date it the summons and com- act received trial re agree court’s We unknown, appears plaint is the date to First, Hagadone’s claim. fusal allow part Haga- latter 1986. If of October Hagadone’s presented was too late to claim diligently and without un- done acted requirement, statutory sec meet delay, have due the claim would been filed ond, not shown sufficient Hagadone has 1, by March The claim was filed on 1987. cause. See id. 1987. representative of dece- Hagadone significant no has shown rea- petition for of dent’s filed a order estate filing for the of its claim. It has sons late complete and distribution on settlement misunderstanding hardship, not shown pursuant September Minn.Stat. diligent procedures. For but mistaken (1986). hearing peti- A on the 524.3-1001 § affirm the decision of the these reasons we petition ap- and the was tion held court. trial 1986. The trial court proved on October closing an the estate on No- issued order DECISION Hagadone’s vember 1986.9 claim filed ten a section 524.3-1001 of months the trial court’s dismissal We reverse after reason, closing petition filed. For and affirm the appellant Bergman’s claim on Hagadone’s Hagadone’s reliance claim. appellant of dismissal 524.3-803(c)(3) misplaced. is part. part and reversed Affirmed in Hagadone’s if claim had been Even closure, petition Haga-

filed before the has claim

done not shown cause allow its reverse trial

such we should subject.

court’s decision on the (1984). 803(c)(3)(ii) Stat. § 524.3— GRADINE, Respondent, Richard L. requirement is The “for cause shown” Supreme Court: explained by the Minnesota COLLEGE OF ST. limitation directed four-month SCHOLASTICA, Relator, against dilatory practices delay which of closing final estate of Jobs and and settlement Training, Respondent. probate. delay apparent, no Where lim- allow claims after time discretion to No. C4-88-326. liberally in ited should be exercised favor Appeals Court of Minnesota. prima of claims which are allowance facie valid. 1988. 24, 1988. Kucera, Aug. re In Estate Denied 290 Minn. Review court, exercising its dis- trial broad cretion, Hagadone determined issued, the order had been If Although the closure of the estate. order was was released unsigned signed, been closed due to clerical error. Because have estate would final, appellants Hagadone’s order was were able to filing claim. restraining temporary preventing obtain a order *2 Jr., Johnson,

Joseph Roby, Killen, J. Thi- Seiler, P.A., Duluth, College bodeau & of St. Scholastica. III, Gen., Humphrey, Atty.

Hubert H. Andrews, Gen., Sp. Atty. Peter C. Asst. St. Paul, Training. for Com’r Jobs and Heard, considered and decided SCHUMACHER, P.J., and FOLEY and FORSBERG, JJ.

OPINION FORSBERG, Judge. College

Relator-employer of St. Scholast- (“college”) ica seeks review of a determina- respondent tion that Richard a college employee, former did not employee. agree harass a fellow We Department Training of Jobs and Gradine’s actions did not constitute sexual harassment, and therefore affirm the de- partment’s unemployment award of bene- fits to Gradine.

FACTS working In March Gradine plant super- for the as an assistant responsibilities visor. included hiring supervising group a of students college during for the who worked assigned summer. Gradine one these students, duties, special Ann Marie complained and when other students receiving preferential Donlin was treat- ment, supervisor transferred campus position. Donlin to a switchboard transfer, Gradine was no After Donlin’s transfer, Prior Gradine had to Donlin’s recurring experiencing dreams in driving which Donlin was her car and be- came involved in an accident with an ani- the road. was worried mal on dreams, per- about these and with Donlin’s mission, game he installed a set of whistles on her car. July, 19 or after Donlin had

On campus to the switch- been transferred 2-page position, wrote her a board Bieter, Duluth, letter, begun experienc- Thomas J. stating for Richard L. that he had feelings Gradine. of affection ing strong personal applied com- Gra- love for her. pensation, hearing him at an off- was conducted meet Donlin to dine asked Department a referee from the work. At the res- Jobs after campus restaurant letter, Training. The referee determined Donlin his taurant, gave person. Gradine had been for miscon- repeated his duct, restaurant, disqualified and was therefore left the After the two receiving home, attempted benefits. referee noted that Donlin at *3 telephoned forthright had testified “in a and feelings for her. Gradine explain his again to —My Love.” work, bulletin board ties. went placed a that to have help cause and asked er she mediately, schedule, could massaging area. stopped what he was “I On Deeply job point, him, to see Donlin indicated he was July and Later that knew of anything to do with note on Donlin’s asked to look morning go, Love stepped but Gradine Donlin’s Donlin told Gradine her to lunch. 22, 1987, and campus experiencing stated that she did listings. Shortly suggested that he look at you any Gradine asked morning, he received a behind telephoned her and neck and shoulder. July available who was telephone operator. Donlin was doing, thereafter, that she always will forever at Donlin’s work 23,1987, car which stated: Donlin said her, marital difficul- him. Gradine housing, working at her wheth- could not not want at home stop im- Gradine left the Gradine she be- At at presented testimony by Donlin herself. the referee reasoned: Nevertheless, lege seemingly credible The claimant was There was of his ty over the student until the final week relative than the factors requested or claimant that such beyond the standards student. ployer has ly provocative and specific events student[.] ployees. * * * addition, had relied ^[******] The claimant’s actions tend to create an imbalance employment which included the positions of the claimant and the * * * student[1]. Both of these the claimant is 23 no evidence offered upon hearsay, leading manner,” in a desired totally physical contact was supervisory capaci of behavior an expect of its em- to his inappropriate. while the col- and had not clearly went was sexual- years discharge. female older em- Donlin had written handwritten note which decision appealed the referee’s day The note stated: before. representative, who to a Commissioner’s decision, finding it referee’s I no want reversed you This to inform that the evidence in accordance with you. was not any to have kind of contact reasoned: The Commissioner home, and the law. or work. phone calls to me at No * * * at all. personal No conversation clear from the abundantly It is character of essential that the of record contacted day, Donlin Later that same misguided claimant’s behavior Gradine’s ac- college complain about sexu- unwelcome rather than infatuation president of fi- vice tions. assistant harassment: al nance, an assistant who also acted as until found that matters, The Commissioner to Donlin’s sto- personnel listened at no time overtures superior, who ry, spoke then The Commissioner discouraged by Donlin. contacted Gradine’s testimony “clear- also found writing the letter paged, and admitted until he did not understand ly her, massaging shows telephoning on by the student directly told he was request- shoulders. Without her neck and he had that the information, ing any further had Donlin Because not mutual.” her were from overtures, rejected Gradine’s clearly employment. old, was 21. years and Donlin testimony that Gradine was 1. The indicated Dept. Reed v. Minnesota Trans poses. was not aware and because unwelcome, portation, (Minn.Ct. the Commis- App.1988), (Minn. rev. to characterize Gradine’s sioner refused June filed sexual harassment. conduct as adopt refused to also The Commissioner “Sexual harassment” while not defined argument that Gradine purposes, for misconduct defined regarding sexual harass- violated its provisions within the noted that ment. The Commissioner compensation governing statutes an em- distinguished ro- between college’s policy separation ployee’s voluntary employ- harass- relationships and sexual mantic ment: ment, expressly circumscribe and did Sexual harassment means unwelcome employees relationships between advances, requests for sexual fa- reasoned students. vors, sexually physical motivated contact conduct was roman- because or other conduct or communication of a *4 motivated, college’s policy tically sexual nature[.] not violated. 268.09, 1(1) (1986). Minn.Stat. subd. § found that Finally, the Commissioner specifically ap- this definition is not While position age previous Gradine’s plicable involving employee to cases mis- supervisor did not create the imba- Donlin’s provide guidance in it does some referee, (a) Donlin by the since lance found determining legislature what the considers (b) age majority; at was over the A “sexual harassment.” similar definition incidents, Gradine was no the time of sexual harassment found within the longer Donlin’s governing Department statutes of Hu- college has obtained a writ of certio- Rights: man rari to review the Commissioner’s decision. harassment” includes “Sexual unwel- advances, requests come for sexu- sexual ISSUES favors, physical al motivated properly 1. Did the Commissioner deter- physical contact or other verbal or con- mine that Gradine’s conduct did not consti- duct or communication of a sexual na- tute sexual harassment? ture[.] actions a violation of Were Gradine’s 363.01, (1986). subd. 10a § college’s policy against sexual harass- Here, representative the Commissioner’s ment? simply found that Gradine’s actions did not public policy compel 3. Did reasons to the level of sexual harassment. rise termination of Gradine as a result of Don- challenging the Commissioner’s determina- allegations lin’s of sexual harassment? tion, questions raises of both fact and law. 4. Did constitute mis- engage conduct if he did not in (a)

harassment? Factual Issues 5. Did conduct issues, constitute as- regard to factual With battery, gross sault and and therefore mis- Viewing scope court’s of review is limited. conduct? light in the most favorable to the evidence findings, we must de- the Commissioner’s

ANALYSIS suffi- there is evidence termine 1(2) (1986) White v. 268.09, findings. 1. Minn.Stat. subd. sustain those cient to Center, Medical Metropolitan provides employee engages that an in 332 N.W.2d who 25, questions disqualified receiving Specifically, misconduct is 26 are unemployment compensation regarding credibility of witnesses benefits. We Commissioner, and by employee’s have held that an to be determined judgment, may substitute its employees may constitute miscon this court de- pur duct for to the Commissioner’s unemployment compensation but should defer 463 Coach, Cary only fined he Custom since testified. terminations. Inc., 331, (Minn.Ct.App. understanding 332 We don’t know Donlin’s findings, and 1984). “touching.” The Commissioner’s intentions at time of the referee, subject of are the not those of the in Definitions “sexual harassment” court’s review. Tester Jefferson unemployment compensation both the stat- Lines, 143, (Minn.Ct.App. rights require utes the human statutes 1984), (Minn. Mar. rev. denied perpetrator’s “unwel- employer the burden of An However, college’s policy come.” as the guilty of employee is mis proving that an regarding itself sexual harassment indi- receipt him from the disqualifying conduct cates, workplace there are situations compensation benefits. employees engage consenting per- where Airlines, Lumpkin Central v. North relationships, sonal and where conduct such as Gradine exhibited this case would not be viewed as “unwelcome.” found that Gradine Commissioner Here, found, as the Commissioner and, harass not intend to more did believed, although falsely, had a he did not importantly, understand personal relationship with and that were unwelcome. The attentions Indeed, his actions were unwelcome. specifically found that Don- the Commissioner found that discourage lin did not Gradine’s actions un- give Donlin did not Gradine cause to day 1987—the same til his attentions unwelcome. believe discharged. Gradine’s intention isn’t *5 that, by other jurisdictions Cases from cited important as the fact based on relationship up point, college “touch- where their the involve situations an em- necessarily ing” her blatantly neck would not be or were ployee’s remarks actions by her as When she off-color, viewed unwelcome. suggestive where em- or or an was, it indicated that can ployee harassed several women. We touching her. ceased which could also envision situations finding of sexual harassment: result in a findings sup- The are Commissioner’s zones; erogenous touching touching af- of record. testified at ported stop; touching by a being ter told to actions, length regarding his and indicated stranger; touching by a or at no 23 did Donlin time Here, however, only one facts involve indicate that his attentions were unwanted. woman, expressed feel- to whom Gradine amply supports This the Commis- ings of Those love affection. reweigh not findings, sioner’s and we will upon oc- expressed to several pre- were Donlin the evidence and determine where days. Upon period three Nyberg v. R.N. Cardozo casions over a of ponderance lies. Brother, 361, 364, Donlin inform 243 none of occasions did & 67 those were unwel- N.W.2d 823 Gradine that attentions once, only Donlin touched come. Gradine (b) Law Issues of began massaging shoulder when he area, stopped when she and he and neck determined, ques- Once the facts are At asked him to. the time employee’s actions consti- tion whether her, Donlin had revealing his emotions is one law. tuted misconduct posi- to another already transferred college argues tion; thus, had any su- Gradine no harassment as constituted sexual authority specific her. pervisory over law, inten a matter of and that Gradine’s Commission- case facts understandings applicable tions and are actions did er’s conclusion determination whether his con to a sexual harassment. constitute However, the stituted sexual harassment. that Gradine did 2. Our conclusion them and the under relationship between moot engage renders in sexual harassment standing parties in this case de- 464 employee’s employer’s its interests or of the that Gradine violated college’s claim harassment. against obligations employer. sexual to his duties

written inefficiency, the other hand mere un- public policy argues that college 3. conduct, per- satisfactory good failure in Gradine as a termination required the inability or formance as the result The col- harassment. his sexual result of incapacity, ordinary or inadvertencies “ad- lege that because claims instances, good negligence in or isolated sexual guilty” of mittedly judgment or discretion are faith errors him. terminate but to no recourse * * not to deemed ‘misconduct’ “admittedly First, Co., Tilseth v. Midwest Lumber 295 Minn. While he harassment. guilty” of sexual (1973) 374-75, 204 646 admitted he never admitted Neubeck, (quoting Boynton Cab Co. harass- constituted his actions (1941)). Wis. 296 N.W. consistently de- contrary, he To the ment. harassing and the nied romantically Gradine’s belief that he was found that his specifically Donlin does involved with not fall within “misguided infatua- constituted of the Tilseth definition of parameters tion,” sexual harassment. than rather most, his actions misconduct. At good judgment error in result of a faith importantly, the issue is not wheth- More discretion. discharging justified er the Gradine; question to be resolved rather the Finally, college argues engaged in “miscon- Gradine committed as compensation pur- duct” for battery, gross sault and and therefore mis Broadway Liquor poses. Windsperger v. 268.09, See conduct. subd. Outlet, 1(3) (1986). This issue was not raised be jus- Thus, college may have been while the rep referee or the Commissioner’s fore the Gradine,2 discharging tified resentative, improperly is therefore question answer argument does not Kampa v. Norman appeal. raised on is entitled to receive un- whether Gradine Club, Tennis dole compensation benefits. employment (Minn.Ct.App.1986), rev. denied *6 also endorse the Commis (Minn. 4. We Nov. sioner’s conclusion that Gradine’s misconduct, in the did not constitute DECISION absence of sexual harassment. properly The determined Commissioner “Misconduct,” com- actions did not constitute defined as

pensation purposes has been or misconduct for unem- sexual harassment follows: ployment compensation purposes. “ * * * meaning of the intended [T]he Affirmed. * * * is limited to con- term ‘misconduct’ evincing or wanton dis- duct such wilful FOLEY, Judge (dissenting). as is regard employer’s of an interests disagree respectfully totally I dissent. I or dis- found in deliberate violations result in this case and believe with the which regard of standards of behavior opinion, majority reversed. The should be expect employer to has the affirming employee to the the award negli- or employee, or in carelessness lip the stat- gives mere service to gence degree recurrence as to of such or governs these matters. The law is ute that wrongful in- equal culpability, manifest unem- employee entitled to that an is not design, an inten- tent or evil or to show employ- compensation when disregard ployment tional and substantial note, however, written charged that he had when he admitted 2. We do that the calls, letters, appear premature. phone re- and touched to have been made the why opportunity explain ceived no to he acted Donlin. did; rather, immediately as he dis- he was Intern, quipak Here, misconduct. 356 N.W.2d 713 ee is (Minn.Ct.App.1984). ample proof of misconduct. there is If the is to be sustained longer, 43- days, no five or six just In by ignoring here the uninvited is in that he year-old Gradine fantasizes referring simply by to the as “infa- act student em- 21-year-old female love with tuation,” meaning. the law then has no point presumes ployee to disruptive Gradine’s conduct was to the with that personal right to take liberties carrying student’s her her out duties for massage to employee by attempting employer, Tilseth any and under work as a she at her neck when standard, the be re- Commissioner should female operator. The student switchboard versed. protested employee was offended to the school authorities. conduct It would have been better had the stu- testified, dent admit- but conduct was attempted he had admitted that testimony ted Gradine and student’s massage young woman’s neck and It was therefore not essential to decision. calling her on the tele- that he had been undisputed that the student had not con- writing days. in those few phone immediately sented she discharged. He was reported the incident to the school authori- of school conduct was violative ties, to Gradine’s It is which led dismissal. Tilseth forth in as the standard set well clear the conduct was nonconsensual Co., Midwest Lumber hardly could be called office banter. personally student offended. majority measures this occurrence message What do we send out to women stating perspective, only from Gradine’s employees workplace? Is it that not intend did that Gradine I think is to be allowed? undisputed the student. It is harass unemployment here is to not. To award The determination of he intended acts. ignore any without misconduct those constituted sexual acts con- that decision and when standard, objective is an trary is true. objective these acts con- from an standard thus miscon- stitute sexual harassment

duct. majority have us believe this would serious, something nothing just it is workplace. in the Who estab-

happens employees women

lished the standard that And accept this kind of conduct? must Marriage Lee of Daniel re the that the em- the standard who established *7 Petitioner, RANDALL, compensation fund must ployer’s Respondent, charged for that conduct? Scholastica, employer, College of St. STEWARD, Dianne Dianne Jorde f/k/a discharged Gradine for his conduct toward Jorde, Lynn Lynne and Dianne the act of when he admitted the student Randall, Appellant. massage the woman’s neck attempting to expressions of love. and other so-called No. C2-88-65. right presume to gave Gradine the What Appeals of Minnesota. Court liberty? employee, not an take this Does female, carry out male or have employer without his or her duties to the understanding that implied noncon-

some workplace is con

sensual Tretter Li employment?

dition