KENNETH PITTS v. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-142

KENNETH PITTS

vs.

DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kenneth Pitts, appeals from the judgment of

the Boston Municipal Court (BMC) affirming the final decision of

the Department of Unemployment Assistance (DUA). The question

presented is whether a BMC judge properly upheld the decision of

the DUA denying benefits to Pitts. See G. L. c. 151A,

§ 25 (e) (1). We affirm.

The facts are well known to the parties and will not be

detailed yet again herein. Suffice it to say that the parties

agree that Massage Envy Brookline (MEB) employed Pitts as a

masseur from approximately May 2019 to March 2020; that because

of the COVID-19 pandemic, the business was shut down; and that

Pitts was furloughed and received unemployment benefits. The

1 Massage Envy Brookline.
parties agree on little else. Pitts contends, inter alia, that

MEB's principals violated G. L. c. 151A, § 47, by making false

statements denying the existence of a Massage Envy "Infection

Prevention, Control and Cleaning Protocol" document; that MEB

concealed the existence of this document during the

administrative hearing; that DUA relied on this false

information to disqualify him from receiving benefits; and that

the BMC judge failed to address the findings about the protocol

document or properly review the evidence.

In response, the director of DUA argues that, as the BMC

judge concluded, DUA's decision was supported by substantial

evidence. Specifically, the director maintains that DUA

correctly concluded that Pitts: refused MEB's offer for

"suitable work"; "voluntarily resigned from employment" within

the meaning of DUA's emergency COVID-19 regulations; and failed

to meet his burden of proving that he left work voluntarily for

good cause attributable to his employer where his

dissatisfaction with MEB's proposed cleaning protocols did not

rise to the level of good cause, nor was it supported by the

record. The director further contends that Pitts's argument

that MEB violated G. L. c. 151A, § 47, by making false

2
statements to the review examiner was not raised below and thus

waived, and, in any event, is unsupported by the record.2

The judge's review was limited to the administrative

record. See G. L. c. 151A, § 42. Furthermore, the judge was

required to give due weight to the experience, technical

competence, and specialized knowledge of the agency. The DUA

board of review's decision could only be overturned if it was

unsupported by substantial evidence, arbitrary or capricious, an

abuse of discretion, or unsupported by law. See G. L. c. 30A,

§ 14 (7).

We have reviewed the entire record, including but not

limited to the thorough hearing3 conducted by the review

examiner, the review examiner's comprehensive findings of fact

and decision, the judge's ruling on the complaint for judicial

review, and the administrative record.4 To the extent there are

disputes of fact between the parties, the review examiner's

findings all have support in the record. To the extent that

2 Assuming without deciding that Pitts properly raised the G. L.
c. 151A, § 47, claim at the administrative and trial level, the
claim lacks merit. As discussed infra, the review examiner did
not err in finding that MEB chose to "go beyond" the corporate
protocol and "change blankets after every session."
3 The review examiner conducted an evidentiary hearing over the

course of three dates: February 21, 2021; March 10, 2021; and
April 9, 2021.
4 The panel also acknowledges receipt of a compact disc

containing a voicemail message that was filed by the appellant
in this appeal.

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Pitts claimed that the "blanket sandwiching" practice would

endanger his clients and subject him to liability, he failed to

show that the method outlined in the proposed corporate policy

was unsanitary or dangerous, and in any event, the review

examiner did not err in concluding that this method was not used

and that MEB adopted a higher standard. Indeed, the review

examiner was entitled to credit MEB's evidence and was not

required to accept Pitts's version of the facts as to why he

left his employment.

In short, the review examiner's decision was neither

arbitrary nor capricious, and was based on substantial evidence.

Further, there was no error in determining that Pitts did not

sustain his burden. See Sohler v. Director of the Div. of

Employment Sec., 377 Mass. 785, 788 n.1 (1979) ("The burden of

proof as to all aspects of eligibility for unemployment

benefits, including the burden of establishing good cause [for

leaving work], rests with the worker"). Thus, we conclude that

the board's decision that the claimant left his job voluntarily

4
and without good cause attributable to the employer is supported

by substantial evidence.5,6

Judgment affirmed.

By the Court (Neyman,
Desmond & Smyth, JJ.7),

Clerk

Entered: April 18, 2023.

5 To the extent that we have not specifically addressed
subsidiary arguments in the parties' briefs, they have been
considered, and do not warrant further discussion. See
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
6 We deny the request for appellate attorney's fees.
7 The panelists are listed in order of seniority.

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