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Click here for the full text of this decision FACTS:Baylor hired Betty A. Coley in 1972 as a librarian at the Armstrong Browning Library and in 1981 informed her by letter that she had been granted tenure on the faculty of the library. The evidence shows that Coley was given the rank of assistant professor. After receiving tenure, Coley was responsible for acquiring and preserving materials, presenting the collection to students and others inside the library as well as outside, participating in professional associations and doing scholarly research. When the director of the library left in 1985, Coley applied for the position and assumed some of the position’s duties until the university hired Dr. Roger Brooks as director in 1987. Coley’s relationship with Brooks was discordant. Brooks thought her to be abrasive and difficult to work with. Dissatisfied with her performance, he reassigned some of her responsibilities to himself or her co-workers. In April 1993, while Coley was on sabbatical, Brooks wrote to his superior, Dr. Avery Sharp, the university librarian, detailing Coley’s alleged inadequacies. Two weeks later Sharp, in turn, wrote to Coley that: “It appears that there is a history of low quantity and quality of work, self-serving behavior, rude and insulting behavior toward ABL staff and members of the public, excessive absences year after year, repeated angry outbursts, [etc.].” Sharp informed Coley that she would be given an opportunity to improve. He also told her that she would not be given a raise in salary or a promotion and that her responsibilities, like those of other library staff, would be reviewed. “Effective immediately and continuing indefinitely,” he concluded, “you have no supervisory responsibilities, no public service responsibilities, and no budgetary responsibilities.” It is not clear whether any of these were part of her responsibilities when she first received tenure or whether she had taken them on while the director’s position remained vacant. Coley complained to Baylor’s President, Dr. Herbert H. Reynolds, who told her she could pursue a formal hearing with the university grievance committee, but she never did. In August 1993, Brooks changed the title of Coley’s position from librarian to research librarian and met with her to discuss her duties, which they both agreed were “very important” to the operation of the library. But in October, she wrote Sharp, stating her fear that Brooks “is now trying to remove me from the Library” because of a personality conflict. Coley signed a new one-year contract with Baylor dated April 15, 1994, continuing her at the academic rank of assistant professor for the 1994-1995 academic year. In May, Coley told Brooks that she might need to take disability leave. Brooks passed her request on to Sharp, who wrote Coley that he would need a statement from her physician regarding her diagnosis and prognosis. In July, Coley withdrew her request and indicated that she would apply for early retirement, get married and move to Canada. A few days later she wrote Brooks to formally request retirement. Nine months after she retired, in April 1995, Coley sued Baylor, Brooks and Sharp. Coley alleged that the defendants violated her rights and privileges as a tenured faculty member; undertook an effort to threaten, intimidate and harass her in an effort to force her to leave her employment; and then effectively removed her from her faculty position through the “guise” of redefining her position, thus forcing her to take early retirement. Coley alleged that the sequence of events leading to her resignation constituted a “defacto removal” of vested tenure rights that “constituted a material and substantial breach of the contractual rights conferred on Coley and other tenured faculty at Baylor University.” At trial following the presentation of evidence, the trial court rejected Coley’s instruction to the jury: that “if you find and believe from the evidence that the change in Betty Coley’s duties, as ordered by Baylor’s agents Dr. Roger Brooks and Dr. 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 was tenured, then you should find that Betty Coley was constructively and wrongfully discharged from her tenured position.” Instead, the trial court gave the jury the following question and instruction on liability: “Did Baylor University constructively discharge Betty Coley?” The trial court added, “An 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.” The jury answered “no”. The trial court rendered judgment on the verdict for Baylor and Coley appealed, but only as to Baylor. The 10th Court of Appeals rejected Coley’s contention that she was entitled to a jury question on breach of contract, noting that she “states in her brief that her theory [of recovery] is that Baylor breached her contract by constructively discharging her” and “agree[ing] with Baylor that the controlling issue is whether Baylor constructively discharged Coley.” But the court held that the jury should have been given Coley’s requested instruction on constructive discharge. That instruction, the court concluded, reflects “a correct statement of law with regard to an employer’s rights under an employment contract to modify an employee’s position”, and the trial court’s instruction did not. HOLDING:Reversed and rendered. Coley, the court stated, alleged that she was demoted in breach of her contract. But although the university altered her responsibilities, the court could find no evidence that Baylor ever required her to perform any job other than assistant professor, the 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 reference to any other materials. Nor did the 1981 letter granting her tenure specify her functions. Coley instead pointed to President Dr. Herbert H. Reynolds’ testimony that a tenured faculty member at Baylor would do the “general kinds of things” in his field that he was doing when he was given tenure. The court found no evidence that Coley did not continue to do the “general kinds of things” she had done when given tenure. The court also found that the trial court did not err in its jury instruction, because it correctly defined constructive discharge as an employee’s reasonable decision to resign because of unendurable working conditions. OPINION:Hecht, J., delivered the opinion of the court, in which Jefferson, C.J., and O’Neill, Brister, Medina, Green and Willett, J.J. joined. CONCURRENCE:Johnson, J., filed a concurring opinion, in which Wainwright, J., joined. “Coley’s proposed instruction was not substantially correct because it contains a direct comment on the weight of the evidence.”

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