Constructive Discharge

AuthorLaura M. Franze
Chapter 4
ConstruCtive DisCharge
By Laura M. Franze
A. Reasonable Person v. Subjective Intent Test
1. Objectively Intolerable Working Conditions
a. Aggravating Circumstances
b. No Aggravating Circumstances
2. Reasonableness of Resignation
B. Expansion of Sabine Pilot Doctrine
C. Constructive Discharge in Sexual Harassment Context
A. Monetary Damages
B. Limits on Recovery of Back Pay and Front Pay
1. Voluntary Quit
2. Unconditional Offer of Reinstatement
a. Overview
b. Comparable Position
c. Unconditional Offer
d. Refusal of Unconditional Offer
A. Not Prima Facie Evidence of Constructive Discharge
B. Circumstances Surrounding Offer
§4:1 Texas employmenT law 4-2
To establish wrongful discharge, a former employee
must prove he or she was “discharged.” The discharge
requirement easily is satisfied when an employee is
expressly terminated. Shades of gray may exist where an
employee is encouraged or even forced to terminate his
or her employment. Such separations are often consid-
ered to be the functional equivalent of a discharge. More
ambiguous, however, is a resignation based on an adverse
change in conditions. Where working conditions become
“intolerable” so that an employee feels compelled to leave,
a resigning employee may, in some circumstances, be able
to argue that he or she was constructively discharged.
See, e.g., Wal-Mart Stores, Inc. v. Bertrand, 37 S.W.3d 1,
8 (Tex. App.—Tyler 2000, pet. denied); Bates v. Dallas
Indep. Sch. Dist., 952 S.W.2d 543 (Tex. App.—Dallas
1997, writ denied); Hammond v. Katy Indep. Sch. Dist.,
821 S.W.2d 174, 176 (Tex. App.—Houston [14th Dist.]
1991, no writ) (constructive discharge serves as a legal
substitute for the discharge element of a prima facie case
in discriminatory and retaliatory discharge cases). The
constructive discharge doctrine prevents an employer
from doing indirectly what it is prohibited from doing
directly by protecting employees who are not fired, but are
forced to resign. However, constructive discharge is not
an independent cause of action under Texas law. “Instead,
constructive discharge is one way of demonstrating an
adverse employment action for the purpose of proving an
employment discrimination claim.” Solis v. San Antonio
Indep. Sch. Dist., SA-09-CV-0594 FB NN, 2010 WL
4929111 (W.D. Tex. Nov. 30, 2010).
Constructive discharge is defined by the United States
and Texas Supreme Courts as “an employee’s reasonable
decision to resign because of unendurable working condi
tions.” Baylor Univ. v. Coley, 221 S.W.3d 599, 605 (Tex.
2007) (quoting Pa. State Police v. Suders, 542 U.S. 129,
141 (2004)). Likewise, the Texas Pattern Jury Charges
state that “[a]n employee is considered to have been dis-
charged when an employer makes conditions so intolerable
that a reasonable person in the employee’s position would
have felt compelled to resign.” Texas Pattern Jury Charges
- Business, Consumer, Insurance & Employment PJC
107.10 & cmt. (2006).
In Baylor University v. Coley, the Texas Supreme Court
addressed whether the definition of constructive discharge
is different depending on whether the employee is at-will or
has an employment contract. The Court held that the defini-
tion is the same, and an employee must show that he or she
resigned because the working conditions were intolerable.
Coley, 221 S.W.3d at 605. Simply showing that plaintiff’s
contractually defined work assignments were materially
changed is not enough to prove constructive discharge. Id.
In this case, plaintiff worked as a Librarian at Baylor
University and was classified as a tenured assistant profes-
sor. Id. at 601. Later in her employment, plaintiff began
working with a new supervisor, and their relationship was
described as “discordant.” Id. Her title was subsequently
changed to “Research Librarian,” and her job duties
were altered. Id. at 602. Plaintiff eventually quit her job
and then alleged she was constructively discharged. The
trial court rejected plaintiff’s proposed jury instruction,
in which she asked the jury to be instructed that she was
constructively discharged if the evidence showed that
the change in plaintiff’s job duties required her to “take
a subordinate position, or one substantially different in
its work and duties from the position for which she was
tenured.” Id. at 603. Instead, the trial court gave the jury
the Texas Pattern Jury Charge on constructive discharge,
and the jury found for Baylor. Id. The court of appeals held
that the trial court should have given plaintiff’s proposed
jury instruction, as that instruction “reflects ‘a correct
statement of law with regard to an employer’s right under
an employment contract to modify an employee’s posi-
tion.’” Id. at 603-04.
On appeal, the Supreme Court stated that “the main
issue was what degree of change is necessary to prove
constructive discharge: a move to ‘a subordinate position,
or one substantially different in its work and duties’ or
‘conditions so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign.’”
Id. at 605. The Supreme Court held that the appellate court
erred in finding that “constructive discharge” is differently
defined, depending on whether employment is by contract
or at-will. Id. Instead, the Court agreed with the United
States Supreme Court’s definition of “constructive dis-
charge” in Pennsylvania State Police v. Suders, in which
constructive discharge was defined as “an employee’s
reasonable decision to resign because of unendurable
working conditions.” Id.
As an initial matter, it is “axiomatic that for there to
be a constructive discharge, some type of termination of
employment or resignation is required.” Barnes v. Greater
Waco Chamber of Commerce, 256 Fed. Appx. 685, 687-
88 (5th Cir. 2007). In that case, the Fifth Circuit held that
plaintiff could not raise a constructive discharge claim
“when he continued to work at the Chamber for almost a
year” after the alleged conduct that forced his resignation
took place. Id.; see also Nordsell v. GMAC Mortg., LLC,
774 F. Supp. 2d 823 (N.D. Tex. 2011) (Sabine Pilot claim
based on constructive discharge failed because “[i]t is
undisputed that Nordsell still holds a job with GMAC”).

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