# F I L E D

O c to b e r 30, 1997 C e c i lCr o w s o n , Jr
. A ppel l a t e C our t

C l e r k IN THE COURT OF

APPEALS OF

TENNESSEE EASTERN SECTION

AT KNOXVILLE

MARCELLA J. CHEEK ) BRADLEY CHANCERY ) Petitioner/Appellee ) NO. 03A01-9706-CH -00218 ) v. ) HON. EARL H. HENLEY ) CHANCELLOR MARGARET CU

LEPPER, ) COMMISSIONER

OF ) EMPLO YMENT

SECUR ITY an d ) GALEN INTERNAL MEDICAL ) GROUP, P.C., ) ) REVERSED a

nd Respondents/Appella

nts ) REMANDED
Cynthia R. Freemon, Chattanooga, Attorney for Appellant Galen Inter nal Medical Group, P.C. Randy Sel lers, C leveland, Attorney for Appe llee Mar

cella J. Cheek.



### O P I N I O N

INMAN , Senior

Judge The Appeals Tribunal and the Board of Review held that this appellee was disqua

lified to r eceive un employment

insurance

benefits b ecause sh e voluntarily

quit her jobwithout good cause. Judicial r

eview w as sought by th e appellee , and the decision of the Board

of Review

was rev ersed by th e Chancellor, who f

ound that “th ere wa s no substanti al evidenc e to support the finding of fact that the petitioner’s shift change was temporary.” The employer appeals a nd presents for revi ew the pr opriety of the rever sal of the decision of the Board o f Review.

The same standard o f review

imposed on tr

ial courts prevails o n this2

Court. F actual iss ues are r eviewed against a s tandard of

substantial

and material evi dence. T. C. A. § 50-7 -304(i)( 2) provides : (2) The chan cellor ma

y affirm the decisi on of the boa rd or t he chancell or

may reve rse, remand o r modify the decisi on if the r ights of the petitioner have been prejudiced because the admi nis trative findings, inferences, conclusions or decisions are: (A) In violation of constitutional or statutor y provisions; (B) In e xcess of th e statutor y authority of the agency; (C) Made upon unlawful procedure; (D) Arbitra

ry or capr icious or c haracte

rized byabuse of discretio n or

clearly unwarra

nted exer cise of discretion; or (E) Unsupported by evidence which is both substantial and mater ial in the l ight of the entire re cord. (3) In deter

mining the su

bstantiali ty of evidence, the chanc ellor shal l take into account whatever in the record fairly detracts f rom its weight, but the cha

ncellor sh all not substi t ute the chancellor’s judgment for that o f the boar

d of revie w as to the

weight of

the evidence on questions o f fact. No decisi on of the board shall be reverse d, remanded or modified by the ch anc ellor unless for errors w hich affect the merits of the final decision of the b oard. S uc h petition for certiorari and the attendant writ thereto shall be heard by the chancell or either

at term t ime or vac ationas a matter of right, any other stat ute of this s tate to the

contrary notwithsta

nding. See: Humana of

Tennesse e v. Tennessee Health Facili ties Commi ssion, et a l., 551 S.W.2 d 664 (Tenn. 1977); De Prie st v. Puet t, 669 S.W. 2d 669 (Te nn. App. 1984).
THE EVIDENCE The appellee was employed as a laboratory technician by Galen Internal Medical Group. On January 6, 1995 she was informed that her work hours would be changed from the first to the second shift for two weeks at which time the employe

r would at

tempt to ac commodate

her wishe s to remai n on the fir st shift [i. e., fr

om 7:00 a.m . to 3:00 p. m.] so tha t she might h ave the co mpany of her grandchildren and spend more time with her husband. There was a degree of conflic ting evidenc e about the permane nce vis-a -vis temporary natur e of this arrange ment, but in any event , the appellee quit vo luntarily t hree (3) days following the shift change.3 The Boar d of Revie w conclude d that the “ [Petition er’s] ‘ self-imp osed’ restrict ions to only being availa

ble for 7:0 0 a.m. t

o 4:00 p.m. do not estab lish good cause f

or leaving the job.” The Cha ncellor di sagreed, finding tha t the decision of the Board of Review was not supported by substantial and material evidence. We are unable to agree with the Chancellor. A claima nt who quits employment is not disqualified fr

om recei ving benefits when the em

ployee had g ood cause c onnected tothe work f or leaving the job. Thach v. Scott, 410 S.W. 2d 173 (Te nn. 1966). It is we ll settled in this jurisdicti on that a pr

eferenc e for par

ticular ho urs of wor

k is not a good cause to refuse or lea ve work. Aladdin Industries, Inc. v. Scott, 407 S.W. 2d 161 (Te nn. 1966); Ford v. Traughber, 813 S.W.2d 141 (Tenn. App. 1991). Under w ell settle d principle s, we c annot find t hat the dec ision of the Board of Review is u nsupported by materia l and substan

tial evidence. T

he judgment of

the Chanc ellor is the

refore reverse d, with c osts assesse d to the appellee .

_________________ _______________ William H . Inman, Senior Jud ge CONCUR:

_________________

____________ Hersche l P. Fra

nks, Judge

_________________

_____________ Charles D . Susano, Jr., Ju dge