Thursday, November 30, 2017

Transgender prof prevails on sex discrimination, retaliation claims in tenure denial

An Oklahoma federal jury has awarded $1,165,000 in damages to a transgender English professor on her Title VII discrimination claims against Southeastern Oklahoma State University and the Regional University System of Oklahoma (collectively, the university). The jury found she was denied tenure in 2009-10 because of her gender, the university’s decision to deny her the chance to apply for tenure in the 2010-11 cycle was due to her gender, and that in retaliation for her workplace discrimination complaints the university denied her the opportunity to apply for tenure in the 2010-11 cycle. The professor failed to convince the jury to side with her on her hostile work environment claim, however.

The U.S. Department of Justice filed the initial complaint in March 2015. The professor sought to intervene 10 days later and filed her intervenor complaint in May 2015. The plaintiff and the DOJ worked together closely until the DOJ settled its claims with the university and was dismissed from the case on October 17, 2017.

Trouble from the beginning. The professor alleged that when she began working at Southeastern as a tenure-track assistant professor in 2004, she presented as a male and had a traditional male name. She was the first transgender professor at Southeastern. In the summer of 2007, she notified the university that she would be transitioning from male to female in the 2007-08 academic year. An HR employee purportedly warned her that the VP of Academic Affairs had inquired whether the professor could be fired because her “transgender lifestyle” offended his religious beliefs and had been told that he could not do so.

Among other things, her complaint alleged that after the professor began presenting as female, a counselor, who was the VP’s sister, warned her that she should take safety precautions because some folks were openly hostile toward transgender people and that the VP considered transgender people to be a “grave offense to his [religious] sensibilities.”

Discriminatory work environment. The complaint also described special instructions that HR employees purportedly gave the professor regarding her prohibited use of multi-stall women’s restrooms and wearing of certain female clothing, such as short skirts, as well as a health insurance exclusion that prevented her from having coverage for medically necessary treatment related to her transition. Non-transgender professors did not have similar restrictions, according to the complaint. Confined to using only single-stall, all-gender restrooms for persons with disabilities that were not located near her office, the professor alleged that she was unable to regularly use restrooms wherever she was on campus for the four years that she adhered to those instructions.

Tenure denial. Assistant professors at the university must obtain tenure by the end of their seventh year or their employment is terminated, according to the complaint. The professor detailed meetings with the dean to prepare for her tenure application. Despite learning that she was a transgender woman, the dean deliberately referred to her with inappropriate male pronouns in meetings, the professor said. The complaint alleged the professor’s attempts to obtain tenure and the subsequent denial in the face of positive recommendations that she attributed to gender discrimination. The tenure denial persisted on appeal, despite the Faculty Appellate Committee’s alleged ruling in the professor’s favor on her grievance. Purportedly despite rules that would otherwise permit her to do so, the professor was denied the opportunity to re-apply for tenure in retaliation for her discrimination complaints.

The case, Tudor v. Southeastern Oklahoma State University, was filed in the Western District of Oklahoma; the case is No. 5:15-CV-00324-C.

20% Off All Business Cards


Federal judge refuses to block Mulvaney from serving as director of CFPB

In a ruling from the bench Tuesday, US District Judge Timothy Kelly of the District Court for the District of Columbia [official website] refused a request [WP report] for a temporary restraining order that would have prohibited Mick Mulvaney[official profile] from serving as the director of the Consumer Financial Protection Bureau (CFPB) [official website].

The request was initially filed [JURIST report] by Leandra English, the CFPB's deputy director who was slated to become the agency's temporary chief director. Legal counsel for English argued that the agency should remain independent of political influence and asked the court to overrule the president's ability to appoint new CFPB directors.

Kelly refused to do so while also agreeing that President Donald Trump's appointment of Mulvaney may raise some constitutional questions. This is because the Dodd-Frank Wall Street Reform and Consumer Protection Act [text], the statute which created the CFPB in 2010 in response to the 2008 recession, was intended to keep the agency independent. Furthermore, by the letter of the statute, which lays out a specific plan for succession to the position of director, English should have become the acting director of the agency until a permanent director is appointed by the Senate.

Counsel for English is now reportedly weighing whether or not to appeal the matter.

20% Off All Business Cards


Wednesday, November 29, 2017

20% Off All Business Cards

20% Off All Business Cards


Supreme Court hears arguments in two cases challenging administrative patent review process

The US Supreme Court on Monday heard oral arguments in two patent law cases challenging the constitutionality and statutory interpretation of the patent review process.

The first case, Oil States Energy Services v. Greene's Energy Group [transcript, PDF], challenges the constitutionality of the inter partes review process implemented in 2011 under theAmerica Invents Act[text, PDF]. In challenging the validity of an issued patent, Congress implemented the two-stage review process [SCOTUSblog report] to combat the lengthy and expensive review process offered under the judicial branch's authority.

At the first stage, the Patent Trial and Review Board reviews a petition challenging the patent and decides whether “there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” If the Board finds such likelihood, the claim will undergo further, more extensive review. The second stage is the Board's adjudicative review of the patent, as opposed to typical litigation proceedings under a trial court's authority. The second stage is the controversial provision of the Act that this case directly questions.

Petitioner Oil States appealed after the Patent Trial Review Board found its patent for wellhead equipment invalid as argued by Greene's Energy, a company which received a similar patent subsequent to issuance of Oil States's patent. At the Supreme Court, Oil States argued the inter partes review process neglected Article III of the Constitution by adjudicating the dispute within the administration, rather than leaving the conflict for the courts. It supported this argument through analysis of patent law throughout the last 400 years, the court's role in protecting private property rights, and the importance of protecting the right to due process of law:

[I]n terms of -- of matters that have been adjudicated traditionally in courts. . . over private rights, I think this Court's cases have established a baseline where. . . Article III vests those matters in Article III courts. [T]he government has conceded that at least some constitutional rights, I believe due process, cannot be suspended as conditions or subject to, and in our view, Article III is no different. . . [W]ith respect to the colloquy about panel stacking, Article III entitles litigants not to have to worry about precisely that sort of executive influence. That is exactly what this Court -- as this Court put it in Stern, as not to have decision-makers in positions of having to curry favor with the. . . executive.

Greene's Energy argued that Congress maintains its same authority regarding patent issuance under the inter partes review process that it did under previous patent law and inter partes review does not infringe on private property rights, stating: [I]nter partes review simply reexamines the propriety of the original grant of a patent, engaging in the same type of patentability analysis entrusted by Congress to the executive since 1790. The process itself is not inherently judicial, and it does not involve the exercise of the judicial power."

In the second case, SAS Institute v. Matal [transcript, PDF], the Court heard arguments concerning statutory interpretation of 35 U.S.C. § 318(a) [text].

Section 318 of federal patent law governs the decision of the Patent Trial and Review Board in the inter partes review process. Subsection a states: "If an inter partes review is instituted and not dismissed under this chapter, the Patent Trial and Appeal Board shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner and any new claim added under section 316(d)." In this case, SAS sought review of the respondent ComplementSoft's challenges to SAS's 16 patent claims, but the Board only reviewed nine of the claims and dismissed the others.

SAS argues [SCOTUSblog report] the provision should be read to require the Board to review and decide on all claims brought before the board. To support its contention, SAS turns to the importance of efficiency, which is the primary purpose for the inter partes review process. SAS argues the Board must decide on all claims in a final written decision, otherwise, the undecided claims can be litigated in normal judicial proceedings, thereby undermining the purpose of the review process:

What we end up with under the. . . scheme that -- that the Patent Office is following right now is a system whereby we were sued . . . in a complaint by ComplementSoft. . . And now, what we're left with is a situation whereby we are in the Patent Office, fighting for years in the inter partes review over the patentability of nine of the 16 claims, and then we're going to have to go back.

The respondent, ComplementSoft, argues the language of Section 318 should be read to apply only to those claims which the Board decided to not to institute proceedings on:

[The petitioner's] argument that it should have included more claims in the final written decision, fails because the PTO or the -- the Board here, as under delegated authority, validly determined not to institute on those claims. They were never part of the instituted proceeding, and there's nothing in the statute that requires the Board to institute or to include in its final decision claims that were never part of the proceeding in the first place.

The Court's decision in SAS Institute v. Matal may, in part, hinge on its decision in Oil States v. Greene's Energy. If the Supreme Court invalidates the inter partes review process in accordance with Oil States' arguments concerning administrative adjudication in patent law, statutory interpretation of Section 318 may not be necessary.

15% OFF All Products

Pearl Finish Business Card Template

Cream Business Card Template

Tuesday, November 28, 2017

Lawsuit alleges leaks, conflicts of interests in Russia investigation

Monday that they have filed a lawsuit [complaint, PDF] seeking the removal of Robert Mueller as head of the investigation into Russian collusion in the 2016 election. The complaint alleges that the former FBI director has "failed to carry out his oath of office, and fulfill his duties."

The complaint says the special counsel's conflicts of interests have led to leaks, citing articles from various media outlets which contained confidential information, including NBC, The Washington Post, The New York TImes and Reuters.

According to the complaint:
Mr. Mueller and his team are clearly leaking confidential information regarding their criminal investigation to media outlets and the public, as there is no other possible source of the information that has been revealed to the public, through friendly media outlets.Freedom Watch alleges that these leaks are a product of numerous conflicts of interest, including Mueller's relationship with "close friend" former FBI Director James Comey, a 2009 trip to Moscow Mueller took transporting enriched uranium samples, the involvement of recent Clinton Foundation attorney Jeannie Rhee and half of the investigating team's history of donating to the Democratic Party. Reviewing these alleged conflicts, the complaint concludes that "Mr. Mueller cannot offer public confidence in the investigation having personally worked with Russia on such high level issues."

Additionally, the complaint accuses the investigation of "jury shopping." After selecting one grand jury from Virginia, the Special Counsel selected another from Washington, DC. Freedom Watch says that this is because Donald Trump received only 4.1 percent of the vote in DC.

Post It Notes















How to Create Influencer Relationships That Move the Needle

Last year, TapInfluence shared a study in conjunction with Nielsen Catalina Solutions that found that influencer marketing content delivers a return on investment that is 11 times higher than traditional forms of digital marketing.

And, according to a Launchmetrics study, more than 60 percent of companies expected to continue and increase investments in influencer campaigns as part of their overall marketing strategy.

That number is on the rise as the influencer medium becomes a substantially more effective way of reaching consumer audiences. The power of social is truly undeniable.

As we look to the last quarter of 2017, planning is already well underway for 2018. To best focus your influencer marketing approach, here is a look at the top trends for mobile app development markets.

Intuitive Partnerships

While the Internet is awash with celebrities and influencers, finding the right ambassadors for your brand can be a serious challenge. The right influencer should have the aesthetic and voice to coherently complement your brand’s look-and-feel. You want to find a natural fit for your channel’s theme that can be effective in its delivery and reach the audience in a way that they respond to.

The best partnerships are a win-win, offering both the influencer and the brand benefits and financial incentives. For example, an influencer partnership can include free access to a product and tangible perks, as well as financial compensation for their paid endorsement. In turn, the brand expects to gain genuine enthusiasm and engagement with target audiences that far surpass the results of interruption advertising.

Authenticity is Imperative

The next step in developing your influencer network in is working with influencers that speak authentically about your brand. Audiences are getting better at sniffing out imposters that don’t really believe in the brand they’re representing.

Vetting and recruiting the right influencers can take time in the planning phases of a campaign; however, finding the right partners who have exceptional style and articulation will pay off exponentially for your key performance indicators and optimal audience engagement.

Other Factors to Consider

While style factors can be fluid—depending on your brand focus—there are several core categories to think through during evaluation including appearance, watchability, and shareability.

Identifying strengths in these categories for each influencer partnership will help you build a well-rounded, cohesive campaign where you are repped by ambassadors who’ll be directly impactful to your audience, and who will help you evaluate key performance indicators through direct connections to your brand’s website, channels, and social media.

15% Off All Business Cards