Jury
This week, the tech world will be watching a jury trial between reddit's
It's surprising that Pao vs. Kleiner Perkins wasn't settled long ago. Parties often avoid high-profile trials because they can damage company and personal reputations alike, sometimes irreparably. For KPCB, involvement in the case could tarnish its stellar reputation as the firm that helped build Amazon, Netscape, Genentech, and Google. For Pao, a jury trial will mean putting the details of her private life under a microscope for the world to see. Of course, the two parties could settle at the last minute, but recent reports suggest that the fighting has become so bitter that a last-minute accord seems unlikely.
In a broader sense, this means that lawyers in a San Francisco courtroom will spend the next month fleshing out what could become the most notorious data point in the long-standing contention that overt and not-so-overt discrimination hobbles women in tech and finance. It's no secret that venture capital firms are overwhelmingly male-dominated and that tech firms often exhibit behavior that would be unwelcome in all but the worst fraternities. In her complaint against Kleiner, Pao suggests that she has evidence to prove a litany of awkward sexual overtures made toward her by colleagues, as well as proof of a deafening silence when she brought the issues up to management. KPCB, for its part, says it champions women (PDF) and that Pao created her own drama wherever she went. Whatever the jury decides, the trial with undoubtedly cast light on a complex and difficult issue.
The Book of Longing
With a B.S. from Nazre
Then, on Valentine's Day in 2007, Pao says that she was approached by senior partner Randy Komisar, who asked her out to dinner (saying his wife was out of town) and gave her The Book of Longing by Leonard Cohen, which contains drawings and poems with "strong sexual content." (Komisar alleges that his wife actually bought the book for Pao because Pao and Komisar had discussed Buddhist philosophy together, and Cohen wrote the book after a five-year stint in a Buddhist monastery.)
In the spring of 2007, “at least three” administrative assistants reported that they were being harassed, so Pao says she reported Nazre's and Komisar's actions to the COO, two managing partners, and a senior partner. Weeks went by without a response, so Pao took the complaint to John Doerr, her mentor and boss. Pao Pao
From there, Pao says she experienced a number of retaliatory actions from KPCB and its senior executives, including the postponing of her 2008 review despite promises that she would be given it before, and then after, her maternity leave. Pao
In December 2011, another Junior Partner allegedly complained about sexual advances from Nazre. When Kleiner Perkins hired an outside investigator, Pao's attorneys write, Nazre left the company.
Beyond the detailed harassment, Pao also alleges that women at KPCB receive significantly less in compensation than men. “Male Junior Partners were permitted to add multiple Boards of Director positions and investment sponsorships each year, while female Junior Partners were limited to just one,” the complaint reads. Pao
“The discrimination had two forms,” the complaint reads. “Women were not promoted to higher levels within the firm that would have resulted in high allocations, and men at comparable levels to women were allocated larger shares of carried interest.”
Not a team player
In a trial brief filed last week, nearly three years after Pao filed her original complaint, KPCB offers some hints at
The filing paints a picture of Ellen Pao as someone who is combative and difficult to work with, who never meshed quite well with the venture capital firm's culture. KPCB quotes reviews that Pao received during her employment at the company like “Can be political—complains about other partners at times,” and “At times appears to be pushing too hard to establish herself, instead of being collaborative,” and “territorial and too frequently clashes with partners. Not cited as team player.” (Criticisms like these are common for female executives.)
KPCB writes that in the spring of 2007, Pao had planned to resign for reasons unrelated to harassment and even asked Doerr not to punish Nazre professionally after Pao told him about her relationship with Nazre. “While Pao occasionally included Nazre among the many about whom she complained, those complaints were no different than her complaints about everyone else,” the trial brief reads.
The firm also contends that when it terminated Pao in 2012, the act was not retaliatory, but rather a long time coming. in Pao's 2011 performance review, the firm had originally included a message saying “you are not on track to become a Senior Partner at KCPB," but John Doerr had intervened and argued that Pao was performing well. “Pao continued to be coached on ways to improve her performance,” the brief states.
The firm also says that Pao was uncooperative when it hired an outside investigator in 2011 to look into the harassment claims made by another Junior Partner and Pao. “Contrary to what she had told the partners back in 2007, she now stated that she had been bullied into a relationship by Nazre and that he had retaliated against her for years,” the firm alleges. The outside investigator interviewed 17 KPCB partners and “concluded that Pao's claims were not substantiated.”
KPCB also says that women are well-represented at its firm and that Pao was paid even better than her male peers at the time, although the names, positions, and salaries of those peers have been redacted from the trial brief. "[F] ollowing her supposed complaint about Nazre in 2007, Pao continued to receive salary increases and bonuses (in fact continued to be paid more than her male peers)," the KPCB trial brief adds.
From what KPCB's lawyers have written, it seems as if they will argue that Nazre's lying to Pao about whether or not he was still together with his wife was not harassment and that the relationship, as far as KPCB knew, was consensual. The firm also argues that some of the people making decisions about Pao's salary, bonus, promotions, etc. included women, so a gender discrimination argument becomes “less credible.”
The firm will also argue that Pao is trying to litigate over mere perceived slights. “Here, many of the alleged discriminatory acts involve such minutiae as Pao not sitting in the front row at a meeting, Pao not sitting at the table during an event, Pao's office not being in 'the power corridor' (whatever that means), Pao not being included on an applicant's interview schedule, Pao being asked to take notes at a meeting—among many, many others,” the trial brief notes. “None of these alleged actions even comes close to being an adverse employment action sufficient to constitute unlawful discrimination.”
KPCB argues that many of Pao's claims have exceeded a statute of limitations and are isolated incidents that don't constitute “continuing violations.” In some ways, the information that KPCB offers seems to hinder its argument that the firm never heard her harassment complaints, but the company will attempt to prove that Pao sat on her actionable information and wiled away her time before her statute of limitations was up. Pao , KPCB’s attorneys claim, “asked a friend in 2008 for ‘a good lawyer for employment law issues that will represent employees… I need to get one of the partners in my office to stop harassing me and the management at KP won’t help, so I’d love to understand my rights and their obligations.’”
“It is clear that Pao believed as early as 2008 that KPCB had potentially violated her rights... And although she consulted and hired counsel and mustered her evidence, she sat on those rights,” KPCB’s lawyers continue, asking that the court throw out all evidence pointing toward allegedly discriminatory action that was collected before March 11, 2011.
KPCB's lawyers will also undoubtedly try to poke holes in Pao's argument by differentiating between individual instances of harassment that the firm could not have known about and a systematic discrimination against women. "Focusing on the evidence that is relevant to this claim, KPCB will show that it did take reasonable steps to prevent unlawful discrimination."
The tough stuff
The Pao case is complicated enough as it is, but over the past several years, events in Pao's life have muddied the waters and provided a salacious backdrop for her adversary to use to call her motives and her request for relief into question. In 2007, Pao married Alphonse "Buddy" Fletcher, a hedge fund manager with a brilliant career in the financial industry. In 2011, Fletcher, a black man, sued the board of directors at The Dakota for defamation and discrimination after he tried and failed to get approval to buy another apartment in the famous building where John Lennon was shot. That lawsuit led to an investigation of Fletcher's finances, which revealed some very concerning insolvencies. Fletcher's main fund filed for bankruptcy in 2012, right around the time that Pao filed her lawsuit against KPCB.
The other reason that this case will be closely watched will be for information on reddit. After Pao left KPCB (she says she was wrongfully terminated; KPCB says it was planning to let her go anyway and offered her a generous severance package, with offers to help her find employment elsewhere) she soon scooped up a job as interim CEO of reddit (disclosure: Ars and reddit share a parent company, namely Advance Publications). KPCB says that Pao is now in such a good position, with reddit being valued at a little over $500 million, that she has no need for relief because she's better off now than she was then. Pao , however, says reddit's valuation is about half that sticker price and claims she still deserves payment from KPCB. Documentation about reddit's valuation will likely be filed under seal, but there's a chance that some more salient information will trickle out, especially if the jury awards damages to Pao.
The very public and very dirty fighting between the two parties will no doubt make for an interesting court performance. Follow Ars to get the latest on the opening arguments this week.
[Note: The original image on this post was taken from Flikr and had mistakenly identified the woman pictured as Pao. It has been replaced.]
http://arstechnica.com/tech-policy/2015/02/reddit-ceo-ellen-pao-takes-on-former-vc-firm-in-gender-discrimination-case/
