The opinion
IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE F IL E D
O c to b e r 30, 1997
C e c il C ro w s o n , J r.
A p p e lla te C o u rt C le rk
MARCELLA J. CHEEK ) BRADLEY CHANCERY
)
Petitioner/Appellee ) NO. 03A01-9706-CH-00218
)
v. ) HON. EARL H. HENLEY
) CHANCELLOR
MARGARET CULEPPER, )
COMMISSIONER OF )
EMPLOYMENT SECURITY and )
GALEN INTERNAL MEDICAL )
GROUP, P.C., )
) REVERSED and
Respondents/Appellants ) REMANDED
Cynthia R. Freemon, Chattanooga, Attorney for Appellant Galen Internal
Medical Group, P.C.
Randy Sellers, Cleveland, Attorney for Appellee Marcella J. Cheek.
OPINION
INMAN, Senior Judge
The Appeals Tribunal and the Board of Review held that this appellee
was disqualified to receive unemployment insurance benefits because she
voluntarily quit her job without good cause. Judicial review was sought by the
appellee, and the decision of the Board of Review was reversed by the
Chancellor, who found that “there was no substantial evidence to support the
finding of fact that the petitioner’s shift change was temporary.” The employer
appeals and presents for review the propriety of the reversal of the decision of
the Board of Review.
The same standard of review imposed on trial courts prevails on this
Court. Factual issues are reviewed against a standard of substantial and
material evidence.
T. C. A. § 50-7-304(i)(2) provides:
(2) The chancellor may affirm the decision of the board or the
chancellor may reverse, remand or modify the decision if the rights
of the petitioner have been prejudiced because the administrative
findings, inferences, conclusions or decisions are:
(A) In violation of constitutional or statutory provisions;
(B) In excess of the statutory authority of the agency;
(C) Made upon unlawful procedure;
(D) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion;
or
(E) Unsupported by evidence which is both substantial
and material in the light of the entire record.
(3) In determining the substantiality of evidence, the chancellor shall
take into account whatever in the record fairly detracts from its
weight, but the chancellor shall not substitute the chancellor’s
judgment for that of the board of review as to the weight of the
evidence on questions of fact. No decision of the board shall be
reversed, remanded or modified by the chancellor unless for errors
which affect the merits of the final decision of the board. Such
petition for certiorari and the attendant writ thereto shall be heard by
the chancellor either at term time or vacation as a matter of right, any
other statute of this state to the contrary notwithstanding.
See: Humana of Tennessee v. Tennessee Health Facilities Commission, et al., 551
S.W.2d 664 (Tenn. 1977); De Priest v. Puett, 669 S.W.2d 669 (Tenn. 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 employer would attempt to accommodate her wishes to remain on the first
shift [i.e., from 7:00 a.m. to 3:00 p.m.] so that she might have the company of
her grandchildren and spend more time with her husband. There was a degree
of conflicting evidence about the permanence vis-a-vis temporary nature of this
arrangement, but in any event, the appellee quit voluntarily three (3) days
following the shift change.
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The Board of Review concluded that the “[Petitioner’s] ‘self-imposed’
restrictions to only being available for 7:00 a.m. to 4:00 p.m. do not establish
good cause for leaving the job.” The Chancellor disagreed, finding that the
decision of the Board of Review was not supported by substantial and material
evidence.
We are unable to agree with the Chancellor.
A claimant who quits employment is not disqualified from receiving
benefits when the employee had good cause connected to the work for leaving
the job. Thach v. Scott, 410 S.W.2d 173 (Tenn. 1966). It is well settled in this
jurisdiction that a preference for particular hours of work is not a good cause to
refuse or leave work. Aladdin Industries, Inc. v. Scott, 407 S.W.2d 161 (Tenn.
1966); Ford v. Traughber, 813 S.W.2d 141 (Tenn. App. 1991).
Under well settled principles, we cannot find that the decision of the
Board of Review is unsupported by material and substantial evidence. The
judgment of the Chancellor is therefore reversed, with costs assessed to the
appellee .
________________________________
William H. Inman, Senior Judge
CONCUR:
_____________________________
Herschel P. Franks, Judge
______________________________
Charles D. Susano, Jr., Judge
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