Pao vs. Kleiner Defense Rests Its Case, Showcasing a Different Side of the Story
techcrunch.com
techcrunch.com
"Kahn said there was enough evidence for the jury considering Pao's lawsuit to conclude that Kleiner Perkins acted with malice, oppression or fraud, which in California is the legal threshold for awarding damages that are designed to punish and deter particularly bad behavior."
"Per this standard, there is sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination by failing to promote Ms. Pao and terminating her employment,'' the judge said in the one-paragraph decision."
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It's a shame, because the jury will take this as 'direction' from the judge.
Pao should lose here.
1) She had a consensual relationship with another employee, Ajit Nazre, at the firm.
2) She broke it off then complained to HR that he was still bugging her.
3) John Doerr himself (the top guy at KPCB) was made aware of her complaint to the HR department and was going to fire Ajit Nazre.
4) Pao then pleaded with John Doerr and the other senior partners not to fire Ajit Nazre. Those 'pleading' emails she sent were read out loud to the jury.
5) And now she complains the firm did nothing to 'save her' from Ajit Nazre ?!
Then she thought "let me add some 'gender discrimination' to my lawsuit here." And yet three other female employees of the firm testified there was no discrimination against women. One of the women spent 15 years at the firm too. And she no longer works there, so has no reason to hold back anything.
Unfortunately, with the judge sending a strong signal to the jury today, Pao is probably going to win here.
2) If, as you claim, the jury will be unduly influenced by the judge's ruling, KPCB's lawyers have only themselves to blame. They filed that motion. Their lawyers are extremely experienced and should have known what the result would be if the judge made a ruling denying their request. This leads me to believe that in practice these rulings do not unduly influence juries; especially because the judge specifically noted in his ruling that:
"Interpreting the evidence most favorably to Ms. Pao and most strongly against Kleiner Perkins, and resolving all presumptions, inferences, and doubts in favor of Ms. Pao, as I am required to do on a nonsuit motion... there is sufficient evidence..."
http://www.theverge.com/2015/3/21/8267273/judge-in-kleiner-p...
"Defendant Kleiner Perkins’ motion for nonsuit on plaintiff Ms. Pao’s request for punitive damages is denied. Interpreting the evidence most favorably to Ms. Pao and most strongly against Kleiner Perkins, and resolving all presumptions, inferences, and doubts in favor of Ms. Pao, as I am required to do on a nonsuit motion (Wegner, Fairbank, and Epstein, California Practice Guide: Cilvil Trials and Evidence (The Rutter Group 2014) 12:203), there is sufficient evidence from which a reasonable juror could find, as to Ms. Pao’s claims for gender discrimination and retaliation, that Kleiner Perkins acted with malice, fraud or oppression. Per this standard, there is sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination by failing to promote Ms. Pao and terminating her employment and that Kleiner Perkins attempted to hide its illegal conduct by offering knowingly false and pre textual explanations for its decisions not to promote Ms. Pao and to terminate her employment. […]
Similarly, per the nonsuit standard, there is sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins retaliated against Ms. Pao for making a protected complaint in December 2011 and January 2012 and for filing this lawsuit by failing to promote her and terminating her employment and that Kleiner Perkins attempted to hide its illegal conduct by offering knowingly false and pre textual explanations for its decisions not to promote Ms. Pao and to terminate her employment."
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The judge is essentially saying that IF one interprets all the evidence and testimony, strongly in favor of Pao and against KP, then there would be malice/fraud/oppression. The judge explicitly states that he is following a mandatory legal standard. This is not his subjective interpretation. The judge is not saying anything about the actual strength of Pao's case.
http://recode.net/2015/03/20/ellen-pao-and-the-case-of-the-m...
> Ellen Pao said she filed her gender discrimination lawsuit against Kleiner Perkins Caufield & Byers partly because of three female administrative assistants who had been discriminated against because of their gender — and only with Pao’s lawsuit and a meaningful settlement would the firm take women’s issues seriously.
> There is only one problem: No one in the courtroom seems to know where these admins are. No one seems to know the details of their grievances. No one in court, including Pao, even knows all their names.
> Pao also said she was told by Kleiner Perkins talent partner Juliet de Baubigny that Nazre was a “sex addict.” To her, that pointed to a larger unspoken history. “I thought she must have additional information and maybe about the administrative assistants,” Pao said.
> Asked on the stand today whether she ever called Nazre a “sex addict,” de Baubigny replied, “No, that is completely ridiculous.”
The thing I find scary is: how many hard-won discrimination battles has she undone by crying wolf? It doesn't matter what the court decides, your logical deduction is probably the same that many people will make.
Talking up against gender discrimination is hard; even harder when nobody is taking you seriously because somebody else cried wolf.
And, while they may be hard to avoid, aren't juries instructed to avoid news accounts of the case they are hearing?
Deleted comment
One of the best pieces of advice I ever got, growing up, was this: "Even if you have not (yet) experienced, in your youth, a very broad range of human behavior, you can compensate by imagining the range of behavior that an officer of the law with 20 years on the force has probably seen."
The facts are pretty clear, it comes off as a 'frivolous' lawsuit in my opinion.
1) There has been no female at the firm -- or any female, or Pao's attorney would've had them in court -- claim that KPCB has gender discrimination problems. And there have been several women in court testifying about this issue. No one backs her up.
2) She claims that KPCB didn't do anything to get Ajit Nazre to stop pestering her. But in fact, the leader of the firm was going to fire Nazre. And Pao intervened, begging them not to fire Nazre.
It seems like a frivolous case to me. Don't know how else you'd describe it.
I'm often not invited to my colleagues parties, and I don't invite them -- we are very different.
Full Definition of FRIVOLOUS
a : of little weight or importance b : having no sound basis (as in fact or law) <a frivolous lawsuit>
Granted, it's only my opinion the case has no merit, that she's filed a frivolous lawsuit.
And even if she loses, her "In for a penny, in for a pound" team of lawyers will probably appeal -- they're probably working pro-bono ("Yay! We're going to get rich suing the almighty KPCB!") and might well think "we got this far, filing the appeal has a chance and it's not that much more work."
If she'd had a few female witnesses back up her story that "gender discrimination is rampant at KPCB, and gender discrimination is why I was never promoted."
She's got none. ZERO. Her whole case is 'gender discrimination.' Since there are no witnesses to concur, it's looking more and more that the stuff she pulled on Komisar and her list of enemies at the firm really do add up to "crummy performer" as the reason she didn't get a promo.
Are you aware that she told her bosses "give me ten million dollars and I'll disappear" ? That comes across as borderline extortion.
http://www.businessinsider.com/ellen-pao-asked-for-10-millio...
Not saying I believe them, just saying they're sort of convincing. Of course, these could be simple misunderstandings and she was still discriminated against.
Pao also sounds extremely self-centered. An example is thinking a book of poetry is a sexual advance. After reading this, I question what she considers "sexual advances".
First, Kleiner's been playing really dirty. It's one thing to say, "We didn't do anything wrong" and call witnesses to argue that there isn't a persistent pattern of gender bias. It's another to push your own employees (who can't say anything other than what you tell them to, since you can take their jobs away, and most people would rather commit perjury than get fired, because when it comes to he-said/she-said civil matters perjury is almost never prosecuted) into talking smack about someone who left 3 years ago. Bringing her husband and his finances into it is also beyond the pale.
The character attacks being made against Pao are also transparently sexist ("a female chip on her shoulder"). Yes, she played politics, and sometimes clumsily. She probably felt that she had to make many of the moves that she did. For example, her request that Nazre not be fired could have been motivated by a concern for her own safety, or out of a fear that his being fired because of her would lead to out-of-band professional retaliation (against her, or against Kleiner) later on down the road. VC is a clubby world; you can understand why she'd plead for someone not to be fired, even after being wronged by that person.
It's also possible that these two seemingly contradictory claims are true: (a) Kleiner Perkins does not have systemic bias against women, and (b) Ellen Pao was a victim of gender discrimination. (I'm not saying that either is true. I'm saying that both could be true at the same time.) One case isn't a pattern. It might be an isolated fuckup by a now-fired employee that KPCB (out of negligence rather than intentional discrimination) failed to correct. It still needs to be addressed. For example, I might be a person with no pattern or history of killing homeless people (as it were, I am, since I've never killed anyone) but if I go off and kill a homeless person, then I should be tried, convicted and jailed. The lack of a pattern doesn't matter. The fact that you could have 99 homeless people testify that I never killed them doesn't matter. If I kill one, I belong in jail.
Here's how it looks to me: Ajit Nazre damaged Ellen Pao's reputation within the firm, after she broke off a sexual relationship. He used Kleiner's performance review system and its culture to ruin her career. I doubt that its HR system and culture were designed to ruin womens' careers, but that's beside the point. Ill-designed buildings that drop snow or ice on people from great heights, and kill them, weren't designed to murder people, but we still hold the developers and architects responsible for negligence.
After Nazre destroyed Pao's reputation, she struggled to recover and could not. KPCB did not do enough to help her recover; that is clear and obvious to me. It could have reached out and extended invitation to, for example, events like the ski trip and the meeting with Al Gore. It could have formally cleared her name and improved her performance review. As far as I can see, it didn't. That may not have been intentional discrimination, but it was severe negligence. It doesn't matter whether John Doerr is sexist; it doesn't seem that he is. But that's not the point. If KPCB didn't do enough to clear her name, then it should be held responsible even if it was Nazre himself who was guilty of the gendered component of the harassment.
The blackbook especially shows she did the groundwork for that case way back ...
The first half of your sentence condemns Kleiner and suggests that the laws under consideration here should be applied fully - else why do we have them?
PS - laying the groundwork for a case years prior is exactly the kind of top notch risk-management capability we wan running major companies. As DeMarco says "risk management is project management for grown ups"
If you agree (and it seems so with "sexism is rampant) that Kleiner was discriminatory, then what does it matter how Machiavellian she was or was not. The case is about their actions not her sympathy-worthiness.
I think you have to respect her ability to take this to the mattresses, even if you can see the PR briefings against her (husband was doing something illegal etc).
If you feel "playing politics" is a bad thing, I would suggest that the centuries long battle to achieve legal equality, will be as nothing compared to persuading politicians to pass anti-Machiavellian laws ...