                                                                          ACCEPTED
                                                                      03-14-00071-CV
                                                                              5072823
                                                           THIRD COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                 4/28/2015 5:43:34 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                   No. 03-14-00071-CV

                                                FILED IN
                                         3rd COURT OF APPEALS
                                             AUSTIN, TEXAS
         IN   THE TEXAS COURT OF APPEALS
                                         4/28/2015 5:43:34 PM
               FOR THE THIRD DISTRICT      JEFFREY D. KYLE
                    AUSTIN, TEXAS                Clerk




      AUSTIN INDEPENDENT SCHOOL DISTRICT,
                    Appellant,
                       v.

                  ANDREW LOFTERS,
                      Appellee.


ON APPEAL FROM THE 419TH JUDICIAL DISTRICT COURT
             TRAVIS COUNTY, TEXAS
            CAUSE NO. D-1-GN-09-003078



       APPELLEE’S MOTION FOR REHEARING



                         Potter Bledsoe, LLP
                         Gary L. Bledsoe
                         State Bar No. 02476500
                         garybledsoe@sbcglobal.net
                         Harry G. Potter III
                         State Bar No. 16175300
                         hpotter@potterbledsoe.com
                         316 West 12th Street, Suite 307
                         Austin, Texas 78701
                         Tel: (512) 322-9992
                         Fax: (512) 322-0840
                         Attorneys for Andrew Lofters
                                          Table of Contents

 Table of Contents……………………………………………………………….... i

 Index of Authorities……………………………………………………………... ii

 I.      Issues Presented for Review………………………………………………… 1

II.      Argument and Authorities…………………………………………………… 2

            A. Issue 1: Did the Court err in deciding that the 180 day requirement for
               filing a charge with the EEOC or Workforce Commission started to
               run when Lofters was denied the opportunity to attend the Doctoral
               Program at the University of Texas?................................................. 5

            B. Issue 2: Did the Court err in deciding that Lofters cannot maintain his
               Retaliation Claim?............................................................................. 8

            C. Issue 3: Did the Court err in holding that Equitable Tolling Does Not
               Apply to the 180 day time period requirements in Texas?............... 13

  III.    Prayer…………………………………………………………………….. 15




                                                        i
                            Index of Authorities

Cases

Arters v. Univision Radio Broad. Tx. L.P.,
      No. 3:07-CV-0957-D, 2009 WL 1313285, *6 (N.D. Tex. May 12, 2009)… 7


Davis v. Autonation USA Corp.,
      226 S.W.3d 487, 493 (Tex. App.—Houston [1st Dist.] 2006, no pet.)……. 14


Elgaghil v. Tarrant Cnty. Junior Coll.,
     45 S.W.3d 133, 142 (Tex. App. 2000)……………………………………. 10


Gupta v. E. Tex. State Univ.,
     654 F.2d 411, 414 (5th Cir. 1981)………………………………… 10, 11, 13


Hennigan v. I.P. Petroleum Co., Inc.,
     858 S.W.2d 371, 373 (Tex. 1993)………………………………………… 13


Leach v. Baylor Coll. Of Med.,
     No. H-07-0921, 2009 WL 385450, *18 (S.D. Tex. Feb. 17, 2009)…….... 7


Ledbetter v. Goodyear Tire & Rubber Co.,
     550 U.S. 618, 127 S. Ct. 2162, 167 L. Ed. 2d 982 (2007),
     overturned due to legislative action (Jan. 29, 2009)……………………. 5, 6


Messer v. Meno,
     130 F.3d 130, 135 (5th Cir. 1997)………………………………………….. 8



National R.R. Passenger Corp. v. Morgan,
      536 U.S. 101 (2002)………………………………………………………. 8
                                       ii
Prairie View A&M University v. Chatha,
      381 S.W.3d 500 (Tex. 2012)………………………………………….. 5, 7


Reeves v. Sanderson,
     530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)………………… 9


San Antonio Water Sys. v. Odem,
     No. 04-07-00130-CV, 2007 WL 2376147, at *2 (Tex. App. Aug. 22,
     2007)……………………………………………………………………… 11


Sanchez v. Standard Brands, Inc.,
     431 F.2d 455, 466 (5th Cir. 1970)………………………………………… 10


Santi v. University of Texas Health Science Center of Houston,
       312 S.W. 3d 800, 805 (Tex. App.—Houston [1st.]…………………... 7, 8, 10


Saucedo v. University of Texas at Brownsville,
     958 F. Supp. 2d 761 (S.D. Tex. 2013)…………………………………….. 5


Texas Tech University v. Finley,
      223 S.W.3d 510, 515 (Ct. App.—Amarillo, 2006)……………………… 13


Thomas v. Clayton Williams Energy, Inc.,
     2 S.W.3d 734, 738 (Tex. App. 1999)……………………………………. 11


Statutes

Lilly Ledbetter Fair Pay Act of 2009, § 2 (2)…………………………………... 5, 6

40 Tex. Admin. Code. Ann. § 819.46…………………………………………… 3

42 U.S.C. § 2000e-5(e)(3)(A)…………………………………………………… 6
                                    iii
29 U.S.C. § 626(d)(3)……………………………………………………………. 6




                        iv
      Appellee, Andrew Lofters, submits this motion for rehearing in response to

the opinion issued by the Court on April 1, 2015, and requests that the Court

consider the following issues:


                      ISSUES PRESENTED FOR REVIEW

      Issue 1: Did the Court err in deciding that the 180 day requirement for filing

a charge with the EEOC or Workforce Commission started to run when Lofters

was denied the opportunity to attend the Doctoral Program at the University of

Texas?


      Issue 2: Did the Court err in deciding that Lofters cannot maintain his

Retaliation Claim?


      Issue 3: Did the Court err in holding that Equitable Tolling Does Not Apply

to the 180-day time period requirements in Texas?




                                         1
                           ARGUMENT & AUTHORITIES

      Mr. Lofters was not aware of any discrimination when he was denied the

ability to attend the Educational Doctoral program at the University of Texas at

Austin. (C.R. 5). Lofters was seeking to obtain a doctoral degree in an area that

was relevant to a partnership the district created as a result of the issues at

Johnston. He accepted another position in the District and then observed another

district employee in one of the classes. (C.R. 105-106). Lofters then made Open

Records requests for information to make sure that he was correct and that the

individuals were employees of the district not operating under special

circumstances. (C.R. 152). He discovered on or about the 4th of April that there

was an individual who he observed in his class who was still an employee of the

district. (C.R. 222-254). After declining to permit Mr. Lofters to participate in the

program, principal Hudson permitted a person of a different race and sex to

participate in the program at the University of Texas. (C.R. 89-93, 172). Lofters

went to the EEOC and filed a charge on or about July 25, 2008. (C.R. 99). Prior

to that he had sent a letter on June 5th to the Human Resources Department of the

District indicating that he felt he was being discriminated at in the district and that

he planned to file EEOC charges. (C.R. 130). Lofters received a letter dated June

11, 2008, that informed him that his assignment had ended for the 2007-2008

school year (effective June 5th). (C.R. 138). Ironically, the staff were to be


                                            2
notified about such matters the week of June 9th through June 16th according to

AISD’s plan. (C.R. 282-283). Also, the 5th of June was the day that all employees

were to be contacted to determine their employment interests. (C.R. 281). Lofters

thought that the timing was curious. (C.R. 50). Lofters filed 179 days after the

January 28th date according to the Court’s opinion. Lofters made an Open Records

request to determine the viability of a complaint because seeing Oropez was not

adequate to inform him if there was a valid claim. EEOC accepted his charge even

though it had discretionary authority to dismiss the case as being untimely--and not

accept charges. (40 Tex. Admin. Code. Ann. § 819.46). Lofters formally secured

counsel and sent a letter to the EEOC to perfect his retaliation charge in November.

(C.R. 291) It was formally filed in December. (C.R. 294). 40 TAC § 819.41

provides that complaints are adequate if they include:


      (d) The complaint shall set forth the following information:
            (1) Harm experienced by the complainant as a result of the
            alleged unlawful employment practice;

            (2) Explanation, if any, given by the employer to the
            complainant for the alleged unlawful employment practice;

            (3) A declaration of unlawful discrimination under federal or
            state law;
            (4) Facts upon which the complaint is based, including the date,
            place, and circumstances of the alleged unlawful employment
            practice; and




                                         3
             (5) Sufficient information to enable CRD to identify the
             employer, e.g., employer ID, business address, and business
             phone.

40 Tex. Admin. Code § 819.41. This was an amendment to a pre-existing

complaint and clearly met those requisites. Subsequent to that Lofters provided

information to the EEOC that detailed AISD’s plan for employees and how it was

effectively his termination.


      AISD’s plan was to have Human Resources be responsible for all employee

matters regarding placement in regards to the Johnston employees. (C.R. 282-283

and see also C.R. 263). HR was required to meet with employees, assist them in

finding jobs, ensure employees were invited to job fairs, and even facilitate

interviews. It even required that they seek to place employees who have not been

placed. (C.R. 281-283). Additionally, AISD was committed to maintaining

Experienced Teachers. Dr. Lofters had the following experience at the time:


      Education
        1. B.S. (Chemistry-Teaching), University of Maryland (1987)
        2. M.Ed. (Education Administration), University of Texas at Austin
           (2004)
        3. Doctorate Program (CCLP), University of Texas at Austin (entering
           2007)
      Texas Certification
        1. Teaching & Administrative
      Employment Experience
        4. Teacher (Johnston HS), Austin ISD (2007-2008)
        5. Assistant Principal (Austin HS), Austin ISD (2004-2007)
        6. Administrative Intern (served various campuses), Austin ISD (2002-
           2004)

                                          4
         7. Science Teacher (served various campuses), Austin ISD (1987-2002)

Issue 1: Did the Court err in deciding that the 180-day requirement for filing
a charge with the EEOC or Workforce Commission started to run when
Lofters was denied the opportunity to attend the Doctoral Program at the
University of Texas?
      Prairie View A&M University v. Chatha, 381 S.W.3d 500 (Tex. 2012), is a

pay case like Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S. Ct.

2162, 167 L. Ed. 2d 982 (2007), overturned due to legislative action (Jan. 29,

2009). It involves when the statute starts to run involving a pay case. In Chatha,

the professor was aware of the discrimination but knowingly deferred the matter to

the next year to see if the disparity would be fixed. In this case, Lofters was not

aware of any discrimination. In fact, we do not know if Oropez was even in the

program at the time that Lofters was told he could not participate in the program so

how could he file a complaint of discrimination? Saucedo v. University of Texas at

Brownsville, 958 F. Supp. 2d 761 (S.D. Tex. 2013) provides the proper

interpretation of Chatha—the time starts to run when you discover the pay

discrimination. What we know in this case is that Oropez was in the class in

January but not whether he was in the program prior in time.


      Prairie View A&M University v. Chatha and Ledbetter involve

compensation decisions based on a discriminatory practice. Congress passed the

Lilly Ledbetter Fair Pay Act in response to the United States Supreme Court’s


                                          5
Decision in Ledbetter. Congress found that the Ledbetter decision “ignor[ed] the

reality of wage discrimination and [was] at odds with the robust application of the

civil rights laws that Congress intended.” Lilly Ledbetter Fair Pay Act of 2009, § 2

(2). The Fair Pay Act provides that every paycheck that reflects the prior

discriminatory decision triggers a new 180 day limitation period. It applies to

discriminatory decisions in compensation made on the basis of race, color,

religion, sex, and national origin as well as age and disability. See 42 U.S.C. §

2000e-5(e)(3)(A) (“ For purposes of this section, an unlawful employment practice

occurs, with respect to discrimination in compensation in violation of this

subchapter, when a discriminatory compensation decision or other practice is

adopted, when an individual becomes subject to a discriminatory compensation

decision or other practice, or when an individual is affected by application of a

discriminatory compensation decision or other practice, including each time wages,

benefits, or other compensation is paid, resulting in whole or in part from such a

decision or other practice.”); 29 U.S.C. § 626(d)(3) (“For purposes of this section,

an unlawful practice occurs, with respect to discrimination in compensation in

violation of this chapter, when a discriminatory compensation decision or other

practice is adopted, when a person becomes subject to a discriminatory

compensation decision or other practice, or when a person is affected by

application of a discriminatory compensation decision or other practice, including


                                          6
each time wages, benefits, or other compensation is paid, resulting in whole or in

part from such a decision or other practice.”). Federal courts have interpreted the

Fair Pay Act and held that it does not apply when it is not an act involving

compensation. See e.g., Leach v. Baylor Coll. Of Med., No. H-07-0921, 2009 WL

385450, *18 (S.D. Tex. Feb. 17, 2009); see also Arters v. Univision Radio Broad.

Tx. L.P., No. 3:07-CV-0957-D, 2009 WL 1313285, *6 (N.D. Tex. May 12, 2009)

(holding that the Fair Pay Act only applies to “discriminatory compensation

claims”). In Prairie View A&M University v. Chatha, the Texas Supreme Court

answered the question of whether the Fair Pay Act applies to wage discrimination

cases brought under the TCHRA. 381 S.W.3d 500 (Tex. 2012). It refused to adopt

the federal standard created by Congress in the Fair Pay Act marking an important

departure from the general practice in Texas of applying federal law and precedent

to claims under the TCHRA. Id. The Texas Supreme Court held that the Fair Pay

Act does not apply to discrimination claims brought under the TCHRA “where pay

discrimination complaints are concerned.” Id. at 506-507.

      Another solid reason to determine that the 180-day requirement was met is

that Texas courts, even recently, have held that “discriminatory practices in

promotion or transfer that produces effects that may not manifest themselves as

individually discriminatory except in cumulation over a period of time.” Santi v.




                                          7
University of Texas Health Science Center of Houston, 312 S.W. 3d 800, 805 (Tex.

App.—Houston [1st.].


      Also, if we look at Mr. Hudson and his actions, it is clear that even if we

were to analyze the claim as a discrete action, the action by Mr. Hudson that raises

the issue of discrimination did not occur until after he had denied Mr. Lofters.

(C.R. 89-93, 172). National R.R. Passenger Corp. v. Morgan, 536 U.S. 101

(2002). The limitations bar does not apply where discriminatory practices in

promotion or transfer produce effects “that may not manifest themselves as

individually discriminatory except in cumulation over a period of time. Messer v.

Meno, 130 F.3d 130, 135 (5th Cir. 1997). In Meno the court indicated that each

promotion was a discrete action. In this case, Hudson’s act of discrimination was

too a discrete act that gave rise to a new, separate and discrete cause of action. An

employee’s complaint should be construed with the utmost liberality. Santi, supra

at 805.


Issue 2: Did the Court err in deciding that Lofters cannot maintain his
Retaliation Claim?
      Lofters engaged in protected activity when he sent the letter to HR on or about

the 5th of June. (C.R. 130). Curiously, the District sent him a letter bearing a date

prior to the date when teachers were to be notified of the District’s action. (C.R.

138). Nonetheless, HR was placed on notice of Mr. Lofters’ intentions. Some


                                          8
employees were maintained, so not every employee received the letter. (C.R. 139-

141). And for the employees who did receive the letter, the district indicated it would

place them elsewhere in the district as indicated above. In other words, the letters

were not to be permanent but simply to put you on notice to find another job. HR,

who received the complaint of retaliation from Mr. Lofters, was responsible for

placing the employees. The district has suggested that it was the reorganization of

Johnston that led to his termination, so the allegations the court describes as the

Failure to Assist items were both the actual termination but also intended to show

that the justification was a pretext and that they are part of the retaliatory termination

and do not simply stand alone as separate and distinct adverse actions. The

assistance issues became his termination because unlike the other teachers in his

program, who were all kept on (C.R. 75), he was not treated like the others in his

program, he was terminated and this reveals how the reason provided was a pretext.

Defendant claims it was a reorganization but they would assist employees to stay.

(C.R. p. 263). Mr. Lofters would not have been terminated but for the failure of the

District to treat him as it did the other teachers in his program. In Reeves v.

Sanderson, 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), the court laid

out a 3rd way to prove discrimination and also a method to defeat claims like the

district has put forward in this case that are intended to show a legitimate

nondiscriminatory reason for the action at issue. There was no need to raise them


                                            9
separate from the termination; however, they are matters that would be expected to

grow out of a charge. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.

1970) and Santi at p. 635. We should note that as to the retaliatory discharge, the

law has been and continues to be that there is no need to exhaust. In this case, when

the district failed to make the June, July or August contacts to work with him to keep

him employed he became a discharged employee. Just as in Gupta, which also

involved a teacher, one must know that the original filing quite naturally might lead

to the termination or failure to assist which was the termination. The Fifth Circuit

has held that retaliation claims are exhausted when they “grow out of an earlier

charge.” Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981) (holding

that the court could hear the unexhausted retaliation claim because it arose as a

consequence of the complainant exhausting his religion and national origin

discrimination claims). In such a case, the court maintains ancillary jurisdiction to

hear the retaliation claim. Id.


      Requiring a complainant to file two separate charges only creates a “needless

procedural barrier”--contrary to the goal of Title VII, which is to eradicate

discrimination through encouraging private lawsuits to help enforce its provisions.

Id. Texas courts have followed Gupta holding that unexhausted retaliation claims

are not jurisdictionally barred when they arise from an earlier charge of

discrimination. See, e.g., Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133,


                                         10
142 (Tex. App. 2000) (relying on Gupta in holding that a separate administrative

charge for the retaliation claim would be impractical and redundant); Thomas v.

Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex. App. 1999) (following

Gupta and holding that because the retaliation claim arose due to the complainant

filing a complaint with the EEOC and TCHR, the complainant was not required to

also file a complaint on his retaliation claims to exhaust his administrative remedies).

The San Antonio Court of Appeals has specifically held that the Gupta doctrine

continues to apply. San Antonio Water Sys. v. Odem, No. 04-07-00130-CV, 2007

WL 2376147, at *2 (Tex. App. Aug. 22, 2007) (“In Gupta, the plaintiff properly

filed two charges with the EEOC, the first alleging discrimination and the second

alleging retaliation for filing the first charge. Id. at 412-13. He then filed suit against

his employer. Id. at 413. After filing suit, the employer notified him that his

teaching contract would not be renewed for the following year. Id. As a result, he

alleged in his suit that the non-renewal of his contract was done in retaliation for his

filing charges with the EEOC. Id. However, he did not file a separate charge with

the EEOC alleging retaliatory discharge. Id. The court held that the lower court had

ancillary jurisdiction to hear the retaliation claim because the claim grew out of an

administrative charge that was properly before the lower court. Id. at 413-14.”).


      Once Lofters made known his complaint of discrimination on the 5th of June,

it is logical to assume that since they were made to the Human Resources


                                            11
Department that they may not provide the assistance that he was to be provided (in

fact they did not even notify him of the availability of such initiatives). (C.R. C.R.

256-2901, 314 2). Moreover, Lofters did provide this information to the EEOC in his

Position Statement which states in relevant part:


      And not only was his position discontinued, he was not given notice or
      other options that were made available to other persons who were
      subsequently told that their positions at Johnston High School were
      being eliminated. Though the Commissioner wanted a largely different
      staff in place at the school from the one that was there at the time of the
      closure, he did not order termination of contracts of the staff then at
      Johnston High School. Most of the members of the staff at Johnson
      who were high performers and not old enough to retire were permitted
      to remain with the school district. Lofters was not permitted to remain,
      however, so he left the district involuntarily. On information and belief
      the members of the staff who were retained did not have pending or
      current discrimination allegations against the Austin Independent
      School District.

(C.R. 328). The same logic appears here where we are talking about obligations on

the district to ensure that Lofters maintained his employment. The consequence of

not assisting Lofters was that he was discharged. That is why those matters are

intended to be read as part of the discharge claim and how they clearly were




1
 Plaintiff’s Response to Defendant’s Plea to the Jurisdiction (Exhibit D - shows
Johnston HS employees were supposed to receive assistance from the district that
was not provided to Lofters).
2
  Plaintiff’s Response to Defendant’s Plea to the Jurisdiction (“As Mr. Lofters
mentions in his affidavit, the benefits that other employers were to receive-such as
meeting with the individual employees, inviting them to group meetings and
helping them to identify jobs-was not provided to him.”).

                                          12
exhausted by the mere filing of the charge to the extent they needed to be exhausted.

In other words, under Gupta there was no need to exhaust those issues. However,

they were exhausted by the filing itself.


      A complaint is considered filed even if it is not verified at the time of filing.

Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 373 (Tex. 1993). Further,

amendments to the original charge relate back to the date the original complaint was

filed. Hennigan, supra at 373. In this case, the retaliation charge was filed no later

than November 21st but should be considered filed in July. Plaintiff was pro se and

went to file a discrimination charge and filed one on discrimination and simply

amended it to include retaliation and the termination (which as expressed above did

not have to be included). A letter is adequate to constitute a complaint. Texas Tech

University v. Finley, 223 S.W.3d 510, 515 (Ct. App.—Amarillo, 2006).


Issue 3: Did the Court err in holding that Equitable Tolling Does Not Apply to
the 180-day time period requirements in Texas?
      The evidence will show that the comparator was in school with Lofters shortly

before he filed. There is no evidence that either of the two comparators was in school

when Lofters was rejected. It is like a man asking to work from home and being

rejected, then a request from a woman being accepted 181 days later. We do not

have a comparator until 181 days later so how could the discrimination charge have

been filed previously. The person who initially denied Mr. Lofters had a comparator,


                                            13
but only months later. The cases are very clear, that even though the 180-day

requirement has been held to be jurisdictional, it can be equitably tolled. Tolling

occurs when employers take action like withholding vital information. Davis v.

Autonation USA Corp., 226 S.W.3d 487, 493 (Tex. App.—Houston [1st Dist.] 2006,

no pet.) Equitable estoppel applies, for example, when the employer hides vital

information. Id. at 493. Davis expressly holds that equitable estoppel is still

available after acknowledging that in Texas the 180-day requirement has been held

to be mandatory and jurisdictional. Davis, supra at 491.


      Hudson told Lofters that the decision to deny his participation in the CCLP

was not his decision, (C.R. 56-57), but in Hudson’s affidavit he stated that the

decision to deny Lofters’ request was his. Hudson states in his affidavit: “...in my

decision to deny his request for a schedule adjustment….” (C.R. 172). Hudson

represented to Lofters that the denial was based on an ironclad rule but given that

Ms. Garza was later allowed to attend this was clearly not true. The District did not

permit Blacks to participate in opportunities such as the CCLP. (C.R. 59-60). And

the Superintendent may have had the final word but Hudson preempted Lofters from

going to the Superintendent by making it seem like the decision was standard across

the board. The District also has a policy that prohibits this and they violated their

own policy. (C.R. 111). In addition, during the course of these proceedings, AISD

tendered a list that they alleged was assistant principals who were allowed to


                                         14
undertake education opportunities, such as the CCLP, but that list turned out to be a

list of teachers instead. (C.R. 80). The Fifth Circuit has recognized that tolling may

be appropriate in situations in which the plaintiff is unaware of the facts giving rise

to the claim because of the defendant’s intentional concealment of them. The Texas

Supreme Court has also recently cited a U.S. Supreme Court case holding that “filing

a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite

to suit . . . but a requirement that, like a statute of limitations, is subject to waiver,

estoppel, and equitable tolling. In re United Serv. Auto. Ass’n, 307 S.W.3d 299 (Tex.

2010) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct.

1127, 71 L. Ed. 2d 234 (1982)).


                                       PRAYER

      For the reasons stated in this motion, appellee asks the Court to grant this

motion for rehearing, withdraw its opinion, reverse the trial court’s judgment, and

either render judgment for appellee or reverse and remand for a new trial.


                                                Respectfully submitted,

                                                Potter Bledsoe, LLP

                                                ___/s/ Gary L. Bledsoe___
                                                Gary L. Bledsoe
                                                State Bar No. 02476500
                                                garybledsoe@sbcglobal.net
                                                Harry G. Potter III


                                           15
                                          State Bar No. 16175300
                                          hpotter@potterbledsoe.com
                                          316 West 12th Street, Suite 307
                                          Austin, Texas 78701
                                          Tel: (512) 322-9992
                                          Fax: (512) 322-0840
                                          Attorneys for Andrew Lofters




                     CERTIFICATE OF COMPLIANCE

  I certify that this document was produced on a computer using Microsoft Word

2013 and contains 4338 words, as determined by the computer software's word-

count function, excluding the sections of the document listed in Texas Rule of

Appellate Procedure 9.4(i)(1).




                                                ___/s/ Gary L. Bledsoe___
                                                     Gary L. Bledsoe




                                     16
                               Certificate of Service

      I certify that a true and correct copy of the foregoing document was served

on counsel for Austin Independent School District today, April 28, 2015, through

the court's electronic filing system and by email to the following addresses:

      Jonathan G. Brush
      jbrush@rmgllp.com
      Richard A. Morris
      rmorris@rmgllp.com
      Rogers, Morris & Grover, L.L.P.
      5718 Westheimer, Suite 1200
      Houston, Texas 77057
      Tel: (713) 960-6000
      Fax: (713) 960-6025
      Attorneys for Austin Independent School District

                                              ___/s/ Gary L. Bledsoe___
                                              Gary L. Bledsoe




                                         17
