KENNETH PITTS v. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & Another. ( 2023 )

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.
3
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.
5