IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0916

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Baylor University, = Petitioner,

Betty A. Coley,=20 Respondent

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On Petition for Review from = the

Court of Appeals for the Tenth = District of=20 Texas

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Argued October 19,=20 2005

Justice Hecht delivered the = opinion of=20 the Court, in which Chief = Justice=20 Jefferson, Justice O=92Neill, Justice Brister, Justice Medina, = Justice Green,=20 and Justice = Willett=20 joined.

Justice Johnson filed a = concurring=20 opinion, in which Justice=20 Wainwright joined.

Respondent=20 Betty A. Coley contends that her former employer, petitioner Baylor = University,=20 by reassigning her responsibilities to others and thus effectively = demoting her,=20 breached her contract and forced her to resign from her tenured faculty=20 position. The trial court rendered judgment for Baylor based on the = jury=92s=20 failure to find that Coley had been constructively discharged, defined = in the=20 charge as =93mak[ing]=20 conditions so intolerable that a reasonable person in the employee=92s = position=20 would have felt compelled to resign.=94 The court of appeals reversed = and=20 remanded, holding that the jury should have been asked whether Baylor=20 constructively discharged Coley by =93=91mak[ing] a material change in the position to which = [she] was=20 entitled under the contract.=92=94 [1] We conclude that Coley = presented no=20 evidence Baylor breached her contract and that the jury was properly = charged on=20 constructive discharge, and we therefore reverse and render judgment for = Baylor.

Baylor hired=20 Coley in 1972 as a librarian in one of its libraries, the Armstrong = Browning=20 Library (the =93ABL=94 or =93Library=94), and in 1981 informed her by = letter that she=20 had been granted tenure on the faculty of the Library. The evidence = shows that=20 Coley was given the rank of =93Assistant Professor=94. According to = Baylor=92s=20 personnel policy manual:

Tenure means assurance to an experienced faculty = member that=20 he/she may expect to continue in his/her academic position unless = adequate cause=20 for dismissal is demonstrated in a fair hearing, following established=20 procedures of due process.

In = her brief=20 in this Court, Coley tells us that she was responsible for acquiring and = preserving materials, presenting the collection to students and others = inside=20 the Library as well as outside, participating in professional = associations, and=20 doing scholarly research. When the director of the Library left in 1985, = Coley=20 applied for the position and was allowed to assume some of its duties = until Dr.=20 Roger Brooks was hired as director in = 1987.

Coley=92s=20 relationship with Brooks was discordant. Brooks thought her to be = abrasive and=20 difficult to work with. Dissatisfied with her performance, he reassigned = some of=20 her responsibilities to himself or her co-workers. In April 1993, while = Coley=20 was on sabbatical, Brooks wrote to his superior, Dr. Avery Sharp, the = University=20 Librarian, detailing Coley=92s inadequacies. Two weeks later Sharp, in turn, wrote to Coley as follows:

It appears that there is a history of low quantity = and quality=20 of work, self-serving behavior, rude and insulting behavior toward ABL = staff and=20 members of the public, excessive absences year after year, repeated = angry=20 outbursts, public criticism of the Director, the former University = Librarian,=20 the central administration and the University, inadequate ability to = accept=20 supervision, poor judgment in materials purchasing recommendations, = attempts to=20 convince dealers and booksellers that you are an approved purchasing = agent for=20 the Library, and inability or unwillingness to complete assigned=20 projects.

Sharp informed=20 Coley that she would not be terminated but would be given an opportunity = to=20 improve. He also told her that she would not be given a raise in salary = or a=20 promotion, and that her responsibilities, like those of other Library = staff,=20 would be reviewed. =93Effective immediately and continuing = indefinitely,=94 he=20 concluded, =93you have no supervisory = responsibilities,=20 no public service responsibilities, and no budgetary = responsibilities.=94 It is=20 not clear whether any of these were part of her responsibilities when = she first=20 received tenure, or whether she had taken them on while the director=92s = position=20 remained vacant.

Coley=20 complained to Baylor=92s President, Dr. Herbert H. Reynolds, who told = her she=20 could pursue a formal hearing with the University Grievance Committee, = but she=20 never did. In August 1993, Brooks changed the title of Coley=92s = position from=20 =93Librarian=94 to =93Research Librarian=94 and met with her to discuss = her duties,=20 which they both agreed were =93very important=94 to the operation of the = Library.=20 But in October, she wrote Sharp:

During the past six years my relationship with Dr. = Brooks has=20 deteriorated to such an extent that I believe he is now trying to remove = me from=20 the Library. As you know, he has demoted me to =93research librarian=94 = and I am now=20 subject to monthly reports to you. He has stripped me of almost every=20 responsibility I once had in the Library=20 . . . .

I believe his reasons for doing this are caused by a = strong=20 personality conflict between us, rather than the result of misdemeanors = on my=20 part.

She concluded=20 that she was =93anxious not to cause trouble=94 and that she =93wish[ed] = to continue=20 working here.=94 When Sharp responded that she should send a copy of her = letter to=20 Brooks, she replied:

I have not sent a copy to Dr. Brooks because I am = anxious to=20 avoid further confrontation. Things have been much better recently in = the=20 Library, and I wish them to continue. My letter was intended solely to = put on=20 record my views of the events of the past few = months.

Two weeks=20 later Brooks issued a memo stating that Coley had been named =93Research = Librarian=94 and would be

responsible for conducting research on topics = pertaining to=20 the collection=92s resources, the cataloging of newly acquired non-print = and=20 non-manuscript items, the cataloging of archival material pertaining to = the=20 collection=92s early history, and the maintenance of the clippings=20 file.

This was the=20 position he had discussed with her in August.

Coley signed=20 a new one-year contract with Baylor dated April 15, 1994, continuing her = at the=20 academic rank of =93Assistant Professor=94 for the 1994-1995 academic = year. Although all of Coley=92s claims accrued = prior to the=20 1994-1995 academic year, none of the annual contracts governing prior = years were=20 introduced into evidence; the 1994-1995 contract does not govern = Coley=92s claims,=20 but is at best representative of the prior annual contracts. Regardless, = neither=20 the 1994-1995 contract nor the 1981 letter = granting=20 Coley tenure contained any description of her position or = responsibilities. The=20 1994-1995 contract stated that the contract, = a=20 referenced attachment, and the Baylor University Personnel Policy Manual = =93contain the entire agreement between the faculty member and the = University=94.=20 Neither the attachment nor the complete manual = are in=20 the record; the only portion of the manual regarding the terms of tenure = is=20 quoted above in pertinent part.

In = May, Coley=20 told Brooks that she might need to take disability leave. Brooks passed = her=20 request on to Sharp, who wrote Coley that he would need a statement from = her=20 physician regarding her diagnosis and prognosis. In July, Coley replied = that

the=20 question is now moot. You will be pleased to learn that I am planning to = take=20 early retirement from Baylor, not because I have finally capitulated to = the=20 decade of constructive dismissal tactics and harassment I have suffered, = culminating last year during my sabbatical in your letter of 28 April = demoting=20 me from my position as Librarian = . . . that I=20 had held for twenty-one years, and placing me on what amounts to = punitive=20 probation, but because I am to be married and live in Vancouver, British = Columbia.

A = few days=20 later she wrote Brooks to formally request retirement:

You will appreciate that I have mixed emotions about = leaving=20 the ABL, which for the past twenty-two years has been the center of my=20 professional and, indeed, much of my personal life. However, in view of = the=20 pressures and stress I have experienced over the past decade, especially = since=20 my sabbatical leave in 1993, I can only anticipate with relief a happy = and=20 productive future in my new situation and environment. I have always = conducted=20 myself in the best interests of the ABL, and the Library will always = have a=20 special place in my affection.

I am also ambivalent about severing my long = association with=20 Baylor = University, which = has=20 treated me well in so many ways. I only regret that because I was denied = promotion to the rank of Associate Professor, I am ineligible for = Emeritus=20 status.

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Thank you for whatever role you may have played in = making=20 [arrangements for my retirement] possible. I should also like to = acknowledge the=20 other kindnesses you have shown me during your tenure as Director of=20 ABL.

Nine months=20 after she retired, in April 1995, Coley sued Baylor, Brooks, and Sharp. = She=20 alleged that the defendants

circumvented Coley=92s rights and privileges as a tenured = faculty member,=20 and undertook to threaten, intimidate, and harass Coley in an effort to = force=20 her to leave her employment; and, finally, when she did not abandon her=20 position, they effectively removed her from her faculty position through = the=20 guise of =93redefinition=94 . . . . Ultimately, the = unreasonable and=20 harassing conduct of Defendants = . . . did=20 force Coley to take early retirement from the clerical position that she = was=20 forced to assume after her faculty and research position, with the = academic=20 rights attendant thereto, was redefined=20 . . . .

This =93=91defacto removal=92 of [her] vested tenure = rights=94, she=20 asserted, =93constituted a material and substantial breach of the contractual rights conferred on Coley and other = tenured=20 faculty at Baylor=20 University.=94

At = the close=20 of the evidence, the trial court refused Coley=92s requests that the = jury be asked=20 whether Baylor breached her tenure contract and that they be = instructed

that if you find and believe from the evidence that = the change=20 in Betty Coley=92s duties, as ordered by Baylor=92s agents Dr. Roger = Brooks and Dr.=20 Avery Sharp, required Betty Coley to take a subordinate position, or one = substantially different in its work and duties from the position for = which she=20 was tenured, then you should find that Betty Coley was constructively = and=20 wrongfully discharged from her tenured position.

Instead, the=20 court gave the jury the following question and instruction on = liability:

Did Baylor University constructively = discharge Betty=20 Coley?

An employee is considered to have been discharged = when an=20 employer makes conditions so intolerable that a reasonable person in the = employee=92s position would have felt compelled to = resign.

The jury=20 answered =93no=94. The trial court rendered judgment on the verdict for = Baylor, and=20 Coley appealed, but only as to Baylor.

The = court of=20 appeals rejected Coley=92s contention that she was entitled to a jury = question on=20 breach of contract, noting that she =93states in her brief that her = theory [of=20 recovery] is that Baylor breached her contract by constructively = discharging=20 her=94 and =93agree[ing] with Baylor that = the controlling=20 issue is whether Baylor constructively discharged Coley.=94[2] But the court held that the = jury should=20 have been given Coley=92s requested instruction on constructive = discharge.[3] That instruction, the court = concluded,=20 reflects =93a correct statement of law with regard to an employer=92s = rights under=20 an employment contract to modify an employee=92s position=94, and the = trial court=92s=20 instruction did not.[4]

The = court=20 relied on our decision in Kramer v. Wolf Cigar Stores Co.[5] There, one Kramer agreed in = writing =93=91to=20 faithfully and diligently act as general manager of the Dallas stores of = the=20 Union Cigar Stores Company, with headquarters at Dallas, performing such = duties=20 as are usually entailed upon a general manager under like = circumstances=92=94.[6] Kramer agreed to the title = =93chief clerk=94=20 of Union Cigar=92s only Dallas store, and when two smaller = stores were=20 added, he managed all three.[7] But when Union Cigar instructed = him to=20 move to the smallest of the three stores, which he believed could not = serve as=20 headquarters for the business, he refused and was discharged.[8] He sued for breach of contract, = alleging=20 that Union Cigar had in effect removed him as general manager and = reduced him to=20 little more than a tobacco salesman.[9] Union Cigar answered that = Kramer had only=20 been transferred, not demoted. We held that the evidence was = =93sufficient to=20 present the issue whether or not the defendant broke the contract by = requiring=20 of plaintiff the performance of duties substantially different from = those which=20 he had agreed to perform=94.[10]

Like Kramer,=20 Coley alleges that she was demoted in breach of her contract. But while = there is=20 evidence that her responsibilities were altered, there is no evidence = that=20 Baylor ever required her to perform any job other than Assistant = Professor, the=20 rank at which she was tenured and which was specified in her last annual = contract. As previously noted, Coley did not introduce into evidence any = contract with Baylor that specified her functions, either in its terms = or with=20 reference to any other materials. Nor does the 1981 letter granting her = tenure=20 specify her functions. Coley instead points to President Reynolds=92s = testimony=20 that a tenured faculty member at Baylor would be entitled to continue to = do the=20 =93general kinds of things=94 in his field that he was doing when he was = given=20 tenure. But there is no evidence that Coley did not continue to do the = =93general=20 kinds of things=94 she had done when given tenure. Over the years, her = work=20 changed as she assumed for awhile, then relinquished, some of the duties = of=20 director, and then was assigned different duties as positions in the = Library=20 were redefined. Neither her tenure letter nor her = 1994-1995=20 academic year contract refer to her position as =93Librarian=94, and her = new title,=20 =93Research Librarian=94, was not significantly different. She = agreed with=20 Brooks that her assignments as =93Research Librarian=94 were =93very = important=94 to the=20 operation of the Library. Even if her work varied substantially over = time and in=20 the end was more clerical than she desired, there is no evidence that it = was not=20 the work of an Assistant Professor. On the contrary, the evidence = establishes=20 that, in the words of Baylor=92s personnel policy manual, she =93continue[d] in [her] academic position=94.

Unlike=20 Kramer, Coley also alleges another, different breach of contract: that = she was=20 constructively discharged =97 that is, that she was in effect terminated = without=20 due process by being forced to resign. This, too, would be a breach of = her=20 tenure contract, but it cannot be proved merely by a material change in = job=20 assignments. Rather, constructive discharge has recently been defined by = the=20 United States Supreme Court in Pennsylvania State Police v. Suders as =93an employee=92s reasonable = decision to resign=20 because of unendurable working conditions=94.[11] Here, the trial court=92s jury = instruction=20 was taken verbatim from PJC 107.10 of Texas Pattern Jury Charges, = which=20 is derived from the Suders opinion.[12] It correctly describes = constructive=20 discharge. Coley=92s requested instruction confused two different = breaches of an=20 employment contract, one when the employee=92s duties or = responsibilities are=20 changed in violation of a contract, and the other when intolerable = working=20 conditions force the employee to resign even though termination was not=20 contractually permitted. In essence, the instruction would have told the = jury=20 that a material change in work assignments forces resignation. Not = surprisingly,=20 Coley offers no authority for this proposition. It is simply incorrect. = The court of appeals=92 conclusion that constructive = discharge is=20 differently defined, depending on whether employment is by contract or = at-will,=20 is based on a misreading of Kramer and is also = incorrect.

The = concurring opinion finds it unnecessary to address Coley=92s argument = that her=20 requested instruction should have been given because, as Baylor = contends, the=20 instruction assumed a disputed fact and therefore was not worded = substantially=20 correctly.[13] The disputed fact was whether = Coley had=20 tenure in a field, such as library science, or in a particular=20 position of employment, such as Librarian of the ABL. Baylor and = the=20 concurrence argue that because that fact was disputed, and because the = requested=20 instruction refers only to a tenured =93position=94, the requested = instruction=20 =93assumed the truth of a material controverted fact=94.[14] We disagree. This nearly = imperceptible=20 distinction between field and position, as related to this case, was but = a speck=20 of disagreement between the parties; the heart of the constructive = discharge=20 claim was whether Baylor=92s change in Coley=92s duties effectively = forced her to=20 resign. The main issue was what degree of change is necessary to prove=20 constructive discharge: a move to =93a subordinate position, or one = substantially=20 different in its work and duties=94, as Coley requested the jury be = instructed, or=20 =93conditions so intolerable that a reasonable person in the = employee=92s position=20 would have felt compelled to resign=94, as the court instructed the = jury.

In = rejecting=20 the argument that Coley did not preserve error, the court of appeals = quoted our=20 statement in State Department of Highways & Public Transportation = v.=20 Payne:

There should be but one test for determining if a = party has=20 preserved error in the jury charge, and that is whether the party made = the trial=20 court aware of the complaint, timely and plainly, and obtained a ruling. = The=20 more specific requirements of the rules should be applied, while they = remain, to=20 serve rather than defeat this principle.[15]

Coley=92s=20 requested instruction presented the principal legal issue of = constructive=20 discharge squarely to the trial court, and the court resolved it. = Nothing in=20 Coley=92s use of the word =93position=94 rather than the word = =93field=94 misled the trial=20 court or interfered in any way with its legal decision. Using either = word, the=20 instruction was wrong for purposes of Coley=92s constructive discharge = claim.=20 Coley is entitled to have the trial court=92s decision reviewed on = appeal.

We = need not=20 decide whether there was any evidence Coley was constructively = discharged to=20 support submission of the issue to the jury since the jury answered the = question=20 =93no=94. There is no evidence that Baylor breached Coley=92s employment = contract.=20 Accordingly, the judgment of the court of appeals is reversed and = judgment is=20 rendered that Coley take nothing.

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Nathan L. Hecht

Justice

Opinion=20 delivered: April 20, 2007

^[1] = 147 S.W.3d=20 567, 571 (Tex. App.=96Waco 2004) (quoting Kramer v. Wolf Cigar Stores = Co.,=20 91 S.W. 775, 777 (Tex. 1906)).

^[2] = 147 S.W.3d at 571

^[3] = Id.

^[4] = Id.

^[5] = 91 S.W. 775 (Tex. 1906).

^[6] = Id. at=20 775.

^[7] = Id.

^[8] = Id.

^[9] = Id.

^[10] = Id.

^[11] = 542 U.S. 129, 141=20 (2004).

^[12] = State Bar of Tex., Texas Pattern = Jury=20 Charges=96Business, Consumer, Insurance & Employment PJC = 107.10 &=20 cmt. (2006).

^[13] = Post=20 at ___.

^[14] = Post=20 at ___.

^[15] = 838 S.W.2d 235, 241 (Tex.=20 1992).