Tamer K. Embaby, Relator v. Department of Treasury, Department of Employment and Economic Development, ...

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-0544

Tamer K. Embaby,
Relator,

vs.

Department of Treasury,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed January 26, 2026
Affirmed
Kirk, Judge *

Department of Employment and Economic Development
File No. 50743407-3

Tamer K. Embaby, Minneapolis, Minnesota (self-represented relator)

Department of Treasury, St. Louis, Missouri (respondent employer)

Keri A. Phillips, Melannie M. Markham, Katrina Gulstad, Minnesota Department of
Employment and Economic Development, St. Paul, Minnesota (for respondent
department)

Considered and decided by Frisch, Chief Judge; Cochran, Judge; and Kirk, Judge.

*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 NONPRECEDENTIAL OPINION

KIRK, Judge

Relator challenges the decision of the unemployment-law judge (ULJ) determining

that because relator was discharged for employee misconduct, he is ineligible for

unemployment benefits. We affirm.

FACTS

Self-represented relator Tamer K. Embaby began working in Minnesota for

respondent-employer the Department of Treasury (IRS) in January 2024 and was

terminated four months later. Embaby then applied for and was deemed eligible to receive

unemployment insurance after respondent Department of Employment and Economic

Development entered a determination that Embaby was discharged for “unsatisfactory

work performance” and his “actions were not employment misconduct.” The IRS appealed

the determination, stating their records indicated that Embaby was removed for

misconduct, not for performance. A ULJ conducted evidentiary hearings between late

August and mid-October 2024. Embaby’s former direct supervisor located in Ohio

(supervisor) and his program manager in Missouri (manager) appeared on the IRS’s behalf.

Embaby appeared pro se and testified.

Evidence before the ULJ included Embaby’s termination letter, which stated he was

discharged because of his “Failure to Follow Instructions or Directions, Failure to Follow

Established [P]rocedures, and Unprofessional Conduct.” The letter described his behavior

as “unacceptable and unbecoming of an IRS employee” due to his “condescending,

disrespectful, and dismissive” conduct, and his “inability to interact appropriately with co-

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workers.” The letter outlined the following incidents as leading to his termination:

Embaby’s “pushback” responses to management when asked to complete various tasks, his

communication with co-workers, and his interaction with a cleaning staff member and

building management.

Regarding the incident with cleaning staff and building management, testimony

revealed that within the first few weeks of his employment, Embaby confronted a member

of the cleaning staff about vacuuming an unoccupied cubicle into which he was moving.

Manager testified that a co-worker who witnessed the interaction later filed a complaint

alleging Embaby “bully[ed] and harass[ed]” the cleaning staff. Later that day, Embaby

discussed the incident with his on-site manager and emailed supervisor stating the cleaning

staff member was, “a Hispanic woman,” who he claimed had “a sort of anxiety or maybe

a mental or physical issues.” The termination letter described Embaby’s comments as

“impl[ying] her nationality or mental status may be affecting her ability to work

efficiently.”

Following the incident, supervisor testified that she instructed Embaby to contact

her should any ongoing issues with the cleaning staff arise. During her testimony,

supervisor acknowledged that, considering she was in Ohio, she had also mentioned to

Embaby that he could contact the on-site manager if there was an immediate issue, but this

was “not [to] dismiss the communication that [Embaby] should continue to have with

[her].” Both supervisor and manager testified that they reiterated this direction in a meeting

with Embaby.

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 Despite these instructions and without supervisor’s knowledge, testimony

established that Embaby went to the building management office three times concerning

issues about the cleaning staff and setting up a cleaning schedule for his cubicle. Then at

the beginning of May, manager issued a “Managerial Directive to Cease Unauthorized

Contacts” to Embaby. The directive stated Embaby was “not given authorization to

represent the IRS regarding cleaning issues” with the cleaning company or the building

management team. It explicitly directed Embaby to contact his manager if he had any

further concerns with the cleaning staff or building management.

Regarding Embaby’s “pushback,” supervisor described incidents in which Embaby

was provided “simple” requests to complete training, provide contact information,

complete elevator access forms, and make corrections. Supervisor testified these “simple”

instructions were constantly met with resistance or required multiple requests before

completion. Supervisor and manager summarized his demeanor and communication during

these incidents as “not very professional” and “not very respectful and [] very demeaning

to the individuals [with whom] he is communicating.” They testified how his interaction

with other staff was “a little aggressive” and how other staff felt “uncomfortable”

interacting with him. Supervisor described, “it’s really not to his performance. It’s really

to his conduct and how he works through issues that’s concerning.” Manager clarified that

“it wasn’t just the cleaning reason that he was terminated . . . it was just a combination of

a lot of things, just never following direction, pushing back, being competitive,

unprofessional . . . it was everything . . . just nothing simple.”

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 On October 23, 2024, the ULJ issued their findings of fact and decision, concluding

Embaby was ineligible for benefits because he was discharged for employee misconduct.

The ULJ made detailed credibility findings, explaining as to any disputed facts, they

credited the employer’s witnesses’ testimony over Embaby’s because “it described the

more likely series of the events and because it was more direct and straightforward.” The

ULJ explained Embaby’s testimony as “not direct, straightforward, or probable.” The ULJ

determined that Embaby was discharged for employee misconduct because of his failure

to inform supervisor about ongoing issues with the cleaning staff, and his constant

“pushback” when given directives.

Following the decision, Embaby requested reconsideration and a new ULJ, claiming

the ULJ erred in evidentiary and credibility determinations. His request for a new ULJ was

denied by the Chief ULJ. The ULJ then issued an order affirming their original decision as

“factually and legally correct.” The ULJ reasoned, “[t]he central finding of the decision

was that [supervisor] gave Embaby clear directives, and he chose not to follow them. This

was sufficient to constitute employment misconduct.” The ULJ further concluded that

Embaby had not provided any information or arguments that would have affected the

outcome of the decision requiring amendment to the decision or another hearing.

Embaby petitioned for a writ of certiorari.

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 DECISION

When reviewing the decision of a ULJ, we may affirm, remand for further

proceedings, or modify the decision if the substantial rights of the petitioner may have been

prejudiced because the ULJ’s

findings, inferences, conclusions, or decisions are: (1) in
violation of constitutional provisions; (2) in excess of the
statutory authority or jurisdiction of the department; (3) made
upon unlawful procedure; (4) affected by other error of law;
(5) unsupported by substantial evidence in view of the hearing
record as submitted; or (6) arbitrary or capricious.

Minn. Stat. § 268.105, subd. 7(d) (2024). Broadly, Embaby argues that (1) the ULJ’s

decision is unsupported by substantial evidence; (2) the ULJ erred in their credibility

determination; (3) the procedure was unlawful because of evidentiary and procedural

decisions made by the ULJ; and (4) the ULJ misapplied the law on the burden of proof.

We address each argument in turn.

I.

Embaby first argues that the ULJ’s determination that he was terminated due to

misconduct was not supported by substantial evidence in the record. Instead, he argues that

his discharge was a pretext for discrimination based on fabricated allegations. We are not

persuaded.

Employee Misconduct

“Substantial evidence is (1) such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more

than some evidence; (4) more than any evidence; or (5) the evidence considered in its

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entirety.” Dourney v. CMAK Corp., 796 N.W.2d 537, 539 (Minn. App. 2011) (quotation

omitted).

Unemployment benefits are intended to provide financial assistance to persons who

have been discharged from employment “through no fault of their own.”

Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). A

person who has been discharged from employment because of “employment misconduct”

is ineligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2024); see also

Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23, 27 (Minn. App. 2007).

Whether an employee engaged in misconduct is a mixed question of law and fact.

Stagg, 796 N.W.2d at 315. “We view the ULJ’s factual findings in the light most favorable

to the decision, giving deference to the credibility determinations made by the ULJ.”

Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (citations omitted).

“In doing so, we will not disturb the ULJ’s factual findings when the evidence substantially

sustains them.” Id. (citing Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005)). But we review

de novo whether an employee’s act “constitutes disqualifying misconduct.” Stagg, 796

N.W.2d at 315.

“Employment misconduct means any intentional, negligent, or indifferent conduct,

on the job or off the job, that is a serious violation of the standards of behavior the employer

has the right to reasonably expect of the employee.” Minn. Stat. § 268.095, subd. 6(a)

(2024). “An employer has a right to expect that its employees will abide by reasonable

instructions and directions.” Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn.

App. 2004), rev. denied (Minn. Mar. 30, 2004). “As a general rule, refusing to abide by an

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employer’s reasonable policies and requests amounts to disqualifying misconduct.”

Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). An employee’s knowing

violation of an employer’s directives constitutes employment misconduct because such

actions evince willful disregard of the employer’s interests. Id. at 806. “This is particularly

true when there are multiple violations of the same rule involving warnings or progressive

discipline.” Id. at 806-07. Whether the employee committed a particular act is a question

of fact. Icenhower v. Total Auto., Inc., 845 N.W.2d 849, 855 (Minn. App. 2014), rev. denied

(Minn. July 15, 2014).

Here, the ULJ determined that the evidence showed Embaby was discharged due to

employment misconduct, specifically his failure to inform supervisor about ongoing issues

with the cleaning staff and multiple occasions where Embaby “pushed back” in response

to directives given by supervisor.

Beginning with whether Embaby’s failure to inform supervisor about ongoing

issues with the cleaning staff constituted employee misconduct, the ULJ made the

following findings. The employer’s directive to Embaby to communicate with supervisor

if he had ongoing issues with the cleaning staff was reasonable because “of the employer’s

interest in ensuring the professionalism of its staff.” The ULJ further reasoned that, due to

Embaby’s failure to follow the direction, the issue with the cleaning staff “spun out of

control” because of supervisor’s inability to address the situation. On appeal, Embaby

argues his actions were reasonable because the instruction was ambiguous, and he

interpreted it as supervisor delegating the primary point of communication to the on-site

manager. Even still, the record shows that Embaby contacted the cleaning supervisor and

8
building management instead of supervisor—action adverse to his employer’s direction.

And, as the ULJ specifically noted, this behavior “alone, was sufficiently serious to rise to

the level of employee misconduct.” See Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519,

524 (Minn. 1989) (“A single incident where an employee deliberately chooses a course of

action adverse to the employer can constitute misconduct” (quoting

Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn.1984))).

Moving to the occasions when Embaby “pushed back” in response to directives

given by his employer, the ULJ found his behavior was “indifferent and insubordinate and

seriously violated the employer’s reasonable expectations.” This finding is amply

supported by the record. Both supervisor and manager testified to “constant pushback” and

“negative and aggressive and emotional” responses they received from Embaby when they

asked him to complete simple tasks such as mandatory briefings at training, paperwork

regarding an elevator key, making a correction to a case file, or responding to a “call tree

email.” Supervisor even described an interaction Embaby had with an administrative

worker for entering leave and calendar requests as making “them feel uncomfortable”

because he was “a little aggressive.” Supervisor described Embaby’s behavior as

“consistent . . . insubordination, not following direction, [and] pushback.” Embaby’s failure

to abide by these reasonable, “simple” requests that did not impose an unreasonable burden

on him, can constitute misconduct. Vargas, 673 N.W.2d at 206.

Accordingly, we conclude that the ULJ’s determination that Embaby engaged in

employee misconduct was supported by substantial evidence in the record.

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 Pretext for Discrimination

Embaby argues that, rather than employee misconduct, he was discharged as a

“pretext for discrimination.” In Minnesota, employers are prohibited from discharging an

employee because they are a member of a protected class.

Minn. Stat. § 363A.08, subd. 2 (2024). Protected classes include race, color, creed,

religion, national origin, sex, gender identity, marital status, status with regard to public

assistance, familial status, membership or activity in a local commission, disability, sexual

orientation, or age. Id.

Discrimination plaintiffs may prove discriminatory intent by direct evidence or by

using circumstantial evidence in accordance with the three-part McDonnell Douglas

burden-shifting framework. Hoover v. Norwest Priv. Mortg. Banking, 632 N.W.2d 534,

542 (Minn. 2001) (applying McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Under that test, before shifting the burden, the plaintiff must first make out a prima facie

case of discrimination. Id. In the discriminatory discharge setting, the plaintiff must show

that he: “(1) is a member of a protected class; (2) was qualified for the position from which

[he] was discharged; and (3) was replaced by a non-member of the protected class.” Id.

(citation omitted).

Here, Embaby’s allegation of discrimination fails at the first prong. He alleges that

his discharge was a pretext for discrimination because he was treated less favorably than

other employees, it was retaliation for filing a complaint against supervisor, and

inconsistencies in the testimonies indicate the reasons for his discharge were unfounded.

But none of these specify the protected class on which the alleged discrimination is based.

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Accordingly, Embaby has not met his burden of establishing the requirements of a prima

facie case for discrimination.

II.

Embaby next challenges the ULJ’s credibility determinations, arguing the ULJ did

not provide sufficient reasons for its determination and that its determination was not

supported by the record. We disagree.

Under Minn. Stat. § 268.105, subd. 1a(a) (2024), “[w]hen the credibility of a witness

testifying in a hearing has a significant effect on the outcome of a decision, the [ULJ] must

set out the reason for crediting or discrediting that testimony.” This court has consistently

held, “[c]redibility determinations are the exclusive province of the ULJ and will not be

disturbed on appeal.” Bangtson v. Allina Med. Grp., 766 N.W.2d 328, 332 (Minn. App.

2009) (quotation omitted).

Here, as the decision-makers on Embaby’s termination, supervisor’s and manager’s

testimonies had a significant impact on the outcome. Accordingly, the ULJ made the

statutorily required findings, dedicating almost a page to the credibility determination and

explaining the reasons they credited supervisor and manager’s testimonies over Embaby’s.

Embaby contends the ULJ’s reasons were inadequate because they overlooked

inconsistencies in supervisor’s and manager’s testimonies and neglected aspects of his. But

“[w]hen the parties have presented conflicting evidence on the record, [we] must defer to

the [ULJ’s] ability to weigh the evidence; we may not weigh that evidence on review.”

Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

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 Embaby also argues the ULJ’s credibility determination was unsupported by the

record. We are not convinced. The ULJ supported their finding by highlighting how

Embaby contradicted himself during his own testimony, specifically as it related to his

knowledge of the directive to communicate directly with supervisor concerning issues with

the cleaning staff. The ULJ also noted how Embaby’s demeanor during the hearings, such

as calling supervisor a liar, “supports the employer’s contention that Embaby was

combative and disrespectful towards [supervisor] during his employment.” These are all

proper reasons for determining the credibility of a witness.

See Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 533 (Minn. App. 2007).

(providing that a ULJ may consider how a witness “learned the facts” and “the manner in

which [they] described them” when evaluating witness credibility).

Accordingly, because of these reasons, we defer to the ULJ’s credibility

determinations and decline to disturb them on appeal.

III.

Third, Embaby argues the procedure was unlawful because of evidentiary and

procedural decisions made by the ULJ. We disagree.

Hearsay Evidence

Embaby contends that he did not receive a fair hearing because the ULJ admitted

hearsay. We review a ULJ’s evidentiary rulings for an abuse of discretion.

CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 566 (Minn. App. 2001),

rev. denied (Minn. Nov. 13, 2001). Under Minn. R. 3310.2922 (2023), a ULJ “may receive

any evidence that possesses probative value, including hearsay, if it is the type of evidence

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on which reasonable, prudent persons are accustomed to rely in the conduct of their serious

affairs.” (emphasis added). Further, a ULJ “is not bound by statutory and common law

rules of evidence.” Id.

Embaby specifically questions the ULJ’s decision to allow testimony of a

conversation with a cleaning staff supervisor and emails received by manager. Embaby

correctly observes that at the hearing manager testified to events and conversations,

although he had not been present when the incidents occurred. But “[a] witness at an

evidentiary hearing is not required to have firsthand knowledge because a ULJ ‘may

receive any evidence which possess[es] probative value, including hearsay.’” Skarhus, 721

N.W.2d at 345 (quoting Minn. R. 3310.2922 (2005)). 1 Thus, the ULJ did not abuse their

discretion in admitting the hearsay evidence.

Procedural fairness

Embaby next argues that the procedure was unlawful because the ULJ failed to

develop the record and that he was prejudiced when the ULJ altered the order of testimony.

1
In his argument, Embaby relies on a United States Supreme Court case and a
nonprecedential case from this court. First, in Consol. Edison Co. of New York v. N.L.R.B.,
the Supreme Court acknowledged the flexible evidentiary standard in administrative
proceedings but stated that the evidence must still have rational probative force. 305 U.S.
197, 217 (1938). Here, Embaby fails to show that the hearsay evidence does not have
rational probative force—each was related to his conduct as an employee and was relied
on in the decision to terminate his employment. Next, in Eystad v. RKT Food and Fun LLC,
after noting there was no statutorily required credibility explanation by the ULJ, this court
held a ULJ’s decision was not supported by substantial evidence. No. A12-1511, 2013 WL
1188017, *3-4 (Minn. App. Mar. 25, 2013). But here, the ULJ provided a credibility
determination with detailed rationale after weighing all the evidence. Therefore, neither of
these cases advance Embaby’s claims.

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 Under Minn. R. 3310.2921 (2023), a ULJ “must assist all parties in the presentation

of evidence” and “ensure that all relevant facts are clearly and fully developed.” We review

legal questions de novo. Thao v. Command Ctr., Inc., 824 N.W.2d 1, 4 (Minn. App. 2012).

Embaby challenges the ULJ’s denial of his request to subpoena certain witnesses

and documents. In doing so, Embaby accuses the ULJ of “already ma[king] up [their] mind,

regardless of the evidence presented” and “undermining the impartiality of the

proceeding.” We are not persuaded. Under Minn. R. 3310.2914, subp. 1 (2023), the ULJ

“may issue subpoenas to compel the attendance of witnesses, the production of documents

or other exhibits, upon a showing of necessity by the requesting party.” But a request “may

be denied if the testimony or documents sought would be irrelevant, immaterial, or unduly

cumulative or repetitious.” Id. Here, during the hearings, the ULJ stated they wanted to

take testimony from both parties before ruling on subpoena requests. Then on the last day,

after hours of testimony, the ULJ ruled, “I think I have enough information to make my

decision without issuing the subpoenas . . . I’ve already taken hours and hours of

testimony.” On reconsideration, the ULJ affirmed they had adequate information,

reasoning that nothing in the subpoena requests changes the outcome of the case or shows

that the employer provided false evidence during the hearing that would influence the

outcome of the decision. In other words, the ULJ found the requested testimony and

documents was “irrelevant, immaterial, or unduly cumulative or repetitious.” This finding

is properly within the discretion of the ULJ.

Embaby also argues that, because of his self-represented status, the ULJ was

required to help him “recognize and interpret the parties’ claims.”

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Ntamere v. Decisionone Corp., 673 N.W.2d 179, 180 (Minn. App. 2003) (quotation

omitted). But unlike Ntamere, in which the ULJ failed to enforce a subpoena and did not

provide a legally sufficient reason, here, the ULJ denied the subpoena requests based on a

legally sufficient and permitted reason—the requests being cumulative and unnecessary to

enable the ULJ to make their decision. 2

ULJs “have a duty to reasonably assist pro se parties with the presentation of

evidence and the proper development of the record,”

White v. Univ. of Minn. Physicians Corp., 875 N.W.2d 351, 355-56 (Minn. App. 2016)

(quotation omitted). Here, the record shows just that: the ULJ explained process, clarified

questions Embaby was trying to ask, assisted in asking the questions, discussed how

evidentiary rules are different, explained the purpose of the closing statement, and even

reminded Embaby he was required to introduce new information before closing. Thus,

Embaby’s allegation that the ULJ failed to assist in the presentation of evidence is

unconvincing.

Embaby also argues the ULJ’s decision to alter the order of testimony, without

notice, influenced his ability to prepare. Under Minn. R. 3310.2921, “[t]he order of

presentation of evidence is determined by the [ULJ].” Here, the ULJ’s stated purpose for

changing the order of testimony so that Embaby would testify earlier was because they

“ha[d not] heard from [Embaby] at all yet,” and “sometimes it’s easier to communicate to

2
On appeal, Embaby alleges his due-process rights were violated, but only makes
conclusory arguments without any supporting legal authority. An assignment of error based
on “mere assertion” without argument or supporting authority is waived.
Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971).

15
the judge just by making statements and giving testimony as opposed to asking questions

of the other party.” Although Embaby states the ULJ’s decision was in response to a

suggestion from manager, it is unclear how it prejudiced Embaby. Therefore, Embaby’s

argument that the change in the order of testimony lead to an unlawful procedure,

prejudicing him, is not compelling.

Accordingly, we conclude the procedure was lawful.

IV.

Finally, Embaby argues the ULJ misapplied the law regarding the burden of proof.

Embaby alleges his former employer had the burden and failed to provide evidence to

substantiate their claims. We are not persuaded.

“An applicant’s entitlement to unemployment benefits must be determined based

upon that information available without regard to a burden of proof.” Minn. Stat. § 268.069,

subd. 2 (2024); see also Vargas, 673 N.W.2d at 205 (“Employment misconduct is now

determined without regard to any common law burden of proof.”). “All issues under the

Minnesota Unemployment Insurance Law are determined by a preponderance of the

evidence standard.” Minn. Stat. § 268.031, subd. 1 (2024). “The applicable standard of

proof is a legal question [that this court] review[s] de novo.”

Vermillion State Bank v. Tennis Sanitation, LLC, 969 N.W.2d 610, 626 (Minn. 2022).

At the August 2024 hearing, the ULJ correctly stated that “this case will be

determined by a preponderance of the facts,” explaining the standard as “evidence in

support of a fact that is more convincing and has a greater probability of truth than the

evidence opposing the fact.” Minn. Stat. § 268.035, subd. 21b (2024) (defining

16
preponderance of the evidence). The ULJ then stated that “entitlement to unemployment

benefits must be determined based upon the information available without regard to burden

of proof,” and explained, “I will apply the law to the facts and will issue a written decision.”

The applicable standard is the preponderance-of-the-evidence standard, without regard to

whether a party met a burden of proof, based on the ULJ’s “independent findings of fact.”

See Vargas, 673 N.W.2d at 205. Therefore, the ULJ applied the proper burden of proof.

Affirmed.

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