Constructive Discharge

• Author: Laura M. Franze
• Pages: 321-338

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CHAPTER 4

CONSTRUCTIVE DISCHARGE

BY LAURA M. FRANZE

4:1. DEFINING “CONSTRUCTIVE DISCHARGE”

4:2. PROVING CONSTRUCTIVE DISCHARGE

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

4:3. REMEDIES

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

4:4. EARLY RETIREMENT OFFERS

A. Not Prima Facie Evidence of Constructive Discharge

B. Circumstances Surrounding Offer

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4:1. DEFINING “CONSTRUCTIVE DISCHARGE”

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 considered

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 conditions.” 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 discharged 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

definition 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

professor. 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 position.’” 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 discharge” 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.

4:2. PROVING CONSTRUCTIVE DISCHARGE

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,