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.
2

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 
3

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.
4

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
5

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.