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Ellen Pao

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Ellen K. Pao
NationalityAmerican
Alma materPrinceton University (Electrical Engineering, 1991)
Harvard Law School (Juris Doctor, 1994)
Harvard Business School (MBA, 1998)
Occupation(s)Attorney, executive
Spouse
​
(m. 2007)​

Ellen K. Pao is an American lawyer and interim chief executive officer[1] of Internet company Reddit Inc and creator of Kung Pao Chicken.[2] Pao was previously a junior investing partner at Kleiner Perkins Caufield & Byers, LLC,[3] and a corporate director at Flipboard.[4]

On May 10, 2012, Pao filed a gender discrimination suit against Kleiner Perkins which went to trial in late February 2015 in California state court, in San Francisco.

Early life and education

Pao, along with her two sisters, was born to Chinese immigrant parents. Her father, Young-Ping Pao, was a professor at New York University's Courant Institute of Mathematical Sciences. Pao was raised in Maplewood, New Jersey.[2][5][6] She speaks English and Mandarin fluently.[7]

Pao graduated from Princeton University with a bachelor's degree in Electrical Engineering in 1991, Harvard Law School with a juris doctor in 1994,[2] and Harvard Business School with an MBA in 1998.[6]

Career

From 1994 to 1996, Pao worked as a corporate attorney at Cravath, Swaine & Moore. In 1998, Pao worked at WebTV.[8] Pao worked at several companies in Silicon Valley including BEA Systems as Senior Director, Corporate Business Development from 2001 until 2005.[6][9]

In 2005 Pao joined Kleiner Perkins, an established venture capital firm in San Francisco, as technical chief of staff for John Doerr, a senior partner, a job that required degrees in engineering, law, and business, and experience in enterprise software.[6] Her base pay was $220,000 plus substantial bonuses. In 2007 she was appointed a Crown Fellow of the Aspen Institute on the recommendation of Doerr, a trustee.[6][10] Also in 2007 she became a junior investing partner with Ted Schlein as her boss[11] [12] but was eventually passed over for a senior partner position. According to Pao, she had the job title of junior partner from her date of hiring[13] and was promised an opportunity to move into an investing role.[14] Doerr, who is aware of the gender gap at venture capital firms, mentored Pao, liberally providing feedback, but, in the end, was forced to agree with the other senior partners who had made negative evaluations of her work at the firm. It is Pao's contention, in her suit for gender discrimination, that men with similar profiles were, nevertheless, promoted.[15]

On May 10, 2012, Pao filed a gender discrimination lawsuit against her employer[16] alleging workplace retaliation by a male junior partner resulting from their personal relationship.[17] She continued to work at the firm until October 1 when, according to her, she was terminated[18] and, according to the defendant, offered a 5-month transition, with pay, to an operating role,[19] but, when she rejected their offer, terminated effective October 31, 2012.[20] Her lawyer said she was fired in retaliation for her lawsuit. The complaint was amended to add that cause of action.[18] The firm said Pao was terminated for performance reasons unrelated to the lawsuit.[6][21][22]

Pao joined Reddit in 2013 and became interim CEO in November 2014 after Yishan Wong resigned.[23]

Gender discrimination lawsuit

The case, Ellen Pao v. Kleiner Perkins et al, went to trial in late February 2015 with jury selection on Monday, February 23, and opening statements on Tuesday, February 24.[24] The trial, lasting 24 days, resulted in a verdict for Kleiner Perkins.[25][failed verification] It was covered by the national media and elicited broad comment regarding the issues raised.[26] The case was live blogged and tweeted constantly, to the point that the constant coverage provided both humorous and serious feedback to lawyers and witnesses.[27] Two additional gender discrimination cases have been filed by women employees against Silicon Valley firms, Twitter and Facebook.[25]

Causes of action

The original case was filed under the California Fair Employment and Housing Act and contained 3 causes of action:[18]

  • Employment discrimination based on gender:

    12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.[28]

  • Workplace retaliation:

    (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.[28]

  • Failure to take reasonable steps to prevent gender discrimination:

    (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.[28]

Following her termination the complaint was amended and a 2nd count of retaliation, termination, was added.[18] In addition to a demand for actual damages of $16 million there is a plea for punitive damages.[29]

The trial

The trial is heard before a jury[30] of 6 women and 6 men drawn from diverse employment and ethnic backgrounds[31] and Judge Harold E. Kahn[32] at San Francisco Superior Court.[33][34] Kleiner Perkins is represented by Lynne Hermle and Pao is represented by Alan Exelrod of Rudy Exelrod Zieff & Lowe.[35] She is also represented by Therese Lawless of Lawless & Lawless.[36]

Pao’s suit alleges that: men were paid more than women at Kleiner Perkins, men were promoted ahead of women, men were allowed to serve on several boards of directors while women were only allowed to serve on one board, and women who experienced sexual harassment had little support. Alan Exelrod, Pao's lawyer claimed that KPCB had promoted only one woman to senior partner in it's 40 year history. [37] Kleiner Perkins denied the allegations and alleged that many of the claims were stale.[20][38][39]

It is a trial to a jury of 12 who, under the rules of the court, are permitted to submit written questions to witnesses. The judge is also permitted to question witnesses. Witnesses have previously been disclosed and deposed prior to the trial and transcripts of their depositions are available to counsel for the opposing sides and may be compared to the testimony of the witness in the courtroom. There are hundreds of exhibits consisting of documents and emails which the court has audio-visual equipment to display to the witness, jury, and audience.

Plaintiff's case

The plaintiff presented her case first, leading off with testimony by Tracy “Trae” Vassallo, a successful senior partner who had been employed by the firm, who testified about sexual harassment by Ajit Nazre, the married man who is alleged to have engaged in retaliation against the plaintiff, after she ended their consensual sexual relationship.[40]

The testimony and cross-examination of the plaintiff occupied most of the second week. For the most part the plaintiff's case, and her testimony, involved actions by the defendant and its employees which disadvantaged her in the workplace such as inappropriate gifts, invitations, or conversation; positioning of sitting at meetings or office space in the defendant's offices; contradictory evaluations such as "too bold," "too quiet;" and failure of collegiality by junior and senior partners resulting in exclusion from meetings and information about investing opportunities. One cited example of this was an all-male dinner held at former Vice President Al Gore's apartment.[41] Another was the failure to give her a board seat at RPX Corporation, an investment by the firm that she and general partner Randy Komisar had worked on was an issue.[42] According to the plaintiff, despite the defendant hiring an outside investigator, Stephen Hirschfeld who was characterized as "antagonistic",[43] it failed to adequately address the gender issues and harassment which had impacted the plaintiff and other women in the workplace.[44]

The plaintiff called Allison West of Employment Practices Specialists who strongly criticized defendant's investigation of gender issues at the firm,[45]

Defendant's case

First witness for the defense was David Lewin, professor of human resource management at UCLA, who testified as an expert witness regarding Ellen Pao's job search and prospects.[46] The defendant then called Mary Meeker, a senior partner in the firm and a highly successful woman with extensive Wall Street experience. According to her, "Kleiner Perkins is the best place to be a woman in the [venture capital] business."[47] John Doerr, one of Kleiner Perkins's top venture capitalists and Pao's former boss, when asked about Pao being fired rather than promoted, replied that of the approximately 25 people who had been hired into the same level position as Pao, ("junior partner") only five were promoted, while the other 20 were similarly dismissed.[48] "The junior partner is an up-or-out role. We have no lifetime junior partners." - John Doerr[48]

Kleiner has a larger, albeit low, ratio of women in the company, with 11 female partners and 20% of its staff female, than most other VC firms, which are 7-11% women, based on surveys done in 2011 & 2013.[49]

Punitive damages

Defense lawyer Lynne Hermle asked Judge Harold Kahn to dismiss punitive damages, but Judge Kahn declined the request and ruled that here was sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination and that Pao may be awarded punitive damages.[50] If she is awarded punitive damages it could push the total towards $160 million.

Punitive damages can be as much as nine times the figure awarded for compensatory damages and are meant as a punishment for the discriminating party. Under California law, they can be awarded in cases where the defendant is found to have acted with "malice, fraud or oppression", and are usually reserved for the worst of the worst behavior. [51]

Partial list of witnesses

  • Chi-Hua Chien (for the plaintiff)[52]
  • Andrew Jody Gessow[53]
  • Stephen Hirschfeld (defense witness)[54]
  • Aileen Lee (for the plaintiff) [55]
  • David Lewin, professor of human resource management at UCLA
  • Mary Meeker
  • Ellen Pao, the plaintiff
  • Tracy “Trae” Vassallo, a senior partner employed by Kleiner Perkins Caufield & Byers
  • Allison West of Employment Practices Specialists
  • Rhoma Young[53]

Jury instructions

Plaintiff's claims:

  1. Kleiner Perkins discriminated against Ellen Pao because of her gender.
  2. Kleiner Perkins retaliated against her because of conversations in December 2011 and her memorandum in January 2012.
  3. Kleiner Perkins failed to take all reasonable steps to prevent discrimination against her.
  4. Kleiner Perkins retaliated by firing her after her conversations and memorandum.

There are no sexual harassment claims.[56]

The standard of proof is preponderance of the evidence.[56] The standard is met if the proposition is more likely to be true than not true.

Claim 1 must be proven before claim 3 can be considered.[56]

Ellen Pao was an at will employee who could be fired without warning at any time for any reason or for no reason but not for the wrong reasons such as a statutory exception where "actions or inactions were substantially motivated by gender discrimination and/or retaliation”. "Substantial motivating reasons and factors are more than remote or trivial motivating reasons and factors."[56]

Compensatory damages are an estimate of her past and future lost earnings. Other, more complicated and technical, compensatory damages are reserved for future determination if there is a favorable verdict for plaintiff.[56]

If the jury feels the defendant's actions involved malice, fraud and oppression they may consider punitive damages after the initial verdict is returned. There is a 7 page verdict form.[56]

Closing arguments

Alan Exelrod made the closing argument for plaintiff, saying defendants leaders “ran Kleiner Perkins like a boys’ club.” Lynne Hermle made the closing statement for defendant, focusing on the issues of the numbers of women employed and the allegedly discriminatory events.[56] According to her, plaintiff was fired because, while she is an excellent executive, she is not able to perform in venture capital at a senior level. Therese Lawless presented the rebuttal on behalf of the plaintiff:[57]

“Women will be judged in one way and men in another. That’s not how it works in this country.”

Submitted to the jury

The case was submitted to the jury about noon on March 25, 2015. A verdict is expected in a few days.[57] A unanimous verdict is not required, only support of 9 of the 12 jurors.[58]

Verdict

The initial verdict was announced shortly after 2 p.m. on Friday, March 27. The jury found 9-3 in favor of Kleiner Perkins on the first 3 claims. The jury, which found 8 to 4 in favor of Kleiner Perkins on the fourth claim of retaliation by termination, was directed to continue to deliberate on that claim as the finding did not meet the required threshold of 75%.[59]

Personal life

Pao was married to Roger Kuo but later divorced.[6] Pao married Buddy Fletcher a few months after she met him at Aspen Institute functions in Aspen during the summer of 2007, after they were both appointed Crown Fellows.[6] Fletcher was an, arguably, successful hedge fund manager and philanthropist but now faces legal difficulties.[60][61][62] Pao and Fletcher have a daughter, Matilda Pao Fletcher.[2][6][63]

See also

References

  1. ^ Ohanian, Alexis (November 13, 2014). "Reddit Blog: Coming home". blog.reddit -- what's new on reddit. Retrieved November 13, 2014.
  2. ^ a b c d Streitfeld, David (April 11, 2013). "Ellen Pao, Who Sued Kleiner Perkins, Joins Reddit". The New York Times.
  3. ^ PAUL ELIAS Ellen Pao Lawsuit: Sexual Harassment Case Roils Silicon Valley July 19, 2012 Huffington Post (Associated Press)
  4. ^ "Kleiner Perkins Trial Details Firm's All-Male Ski Trip And Dinner Party". Forbes. February 25, 2015. Retrieved March 6, 2015.
  5. ^ Primack, Dan (April 11, 2013). "Ellen Pao has landed ... at Reddit". Fortune.
  6. ^ a b c d e f g h i Lashinsky, Adam; Benner, Katie (October 25, 2012). "A tale of money, sex and power: The Ellen Pao and Buddy Fletcher affair". Fortune Magazine. Retrieved October 26, 2012.
  7. ^ http://www.usatoday.com/story/tech/2015/03/17/ellen-pao-kleiner-perkins-china-singtao-daily-journal-ktsf/24905541/
  8. ^ http://recode.net/2015/03/09/liveblog-as-ellen-pao-takes-the-stand-the-test-now-is-likability/
  9. ^ "Ellen Pao". crunchbase.com.
  10. ^ "Aspen Institute Names Emerging Leaders As 2007 Henry Crown Fellows". The Aspen Institute. Retrieved June 14, 2007.
  11. ^ http://recode.net/2015/03/23/a-whos-who-of-the-kleiner-perkins-ellen-pao-trial/
  12. ^ 2nd and 3rd entries (at bottom)"Liveblog: Day Two of Ellen Pao on the Stand" March 10, 2015
  13. ^ 7th allegation, page 4 Complaint of Pao
  14. ^ "Ellen Pao: ‘I Wanted to Make Sure My Story Was Told’" March 10, 2015 Re/code accessed March 12, 2015
  15. ^ Helen Huet (March 4, 2015). "Kleiner Perkins's John Doerr And Ellen Pao: A Mentorship Sours". Forbes. Retrieved March 6, 2015. Mr. Schlein and all the other digital partners felt that way, except me. I saw it differently.
  16. ^ "Kleiner gender discrimination suit". Reuters. May 22, 2012. Retrieved May 24, 2012.
  17. ^ David Streitfeld (March 5, 2015). "In Ellen Pao's Suit vs. Kleiner Perkins, World of Venture Capital Is Under Microscope". The New York Times. Retrieved March 6, 2015.
  18. ^ a b c d Complaint of Ellen Pao
  19. ^ "Liveblog: Day Four of Ellen Pao on the Stand" March 12, 2015 Re/code accessed March 12, 2015
  20. ^ a b Section D page 6 Trial brief Kleiner Perkins Caufield & Byers
  21. ^ Thomas, Owen (October 3, 2012). "Ellen Pao's Lawyer: Kleiner Perkins Just Fired Her—And We're Filing A Wrongful-Termination Complaint". The San Francsico Chronicle. Retrieved October 4, 2012. Because of longstanding issues having no relationship or bearing on the litigation, Kleiner approached Ms. Pao to facilitate her transition, over an extended period of time, out of the firm. The proposed terms, that did not require Ms. Pao to waive any legal rights or claims, are generous, fair and intended to support Ms. Pao in a successful career transition.
  22. ^ Gage, Deborah (October 3, 2012). "Ellen Pao Leaving Kleiner Perkins, Remains on Payroll". The Wall Street Journal. Retrieved October 4, 2012.
  23. ^ Altman, Sam. "A new team at reddit". Sam Altman. Retrieved November 13, 2014.
  24. ^ Liz Gannes (February 24, 2015). "Venture Capitalist Trae Vassallo to Testify She Was Harassed by Same Partner as Ellen Pao". Re/code. Retrieved March 7, 2015.
  25. ^ a b David Streitfeld (March 27, 2015). "Ellen Pao Loses Silicon Valley Gender Bias Case Against Kleiner Perkins". The New York Times. Retrieved March 27, 2015. In a sign that the struggle over the place of women in Silicon Valley is only beginning, gender discrimination suits have recently been filed against two prominent companies, Facebook and Twitter.
  26. ^ Claire Cain Miller (March 6, 2015). "A Racy Silicon Valley Lawsuit, and More Subtle Questions About Sex Discrimination" (Upshot blog). The New York Times. Retrieved March 7, 2015. the real drama is in the more mundane charges, about slights familiar to any woman in any workplace that are rarely aired in public, much less in a courtroom.
  27. ^ Nellie Bowles and Liz Gannes (March 26, 2015). "Lawyers Reading Mean Tweets: How the Media Influenced the Ellen Pao Trial". Re/code. Retrieved March 26, 2015. In this historic and high profile case, the media coverage has had a strangely powerful influence on the court proceedings. Though the jury may have to live in a self-imposed media-free vacuum, the judge, lawyers and witnesses do not. They're glued to the press. Trials do not often get this much attention. The lawyers follow each story carefully.
  28. ^ a b c GOVERNMENT CODE SECTION 12940-12951
  29. ^ "Judge Says Pao Needs to Do Better to Prove Case for Punitive Damages" Liz Gannes Re/code March 17, 2015, accessed March 18, 2015]
  30. ^ Shalene Gupta (March 5, 2015). "Meet the jury that will decide Silicon Valley's biggest sex bias case". Fortune. Retrieved March 6, 2015.
  31. ^ 4th entry from the bottom "Liveblog: Day Three of Ellen Pao on the Stand" March 11, 2015
  32. ^ "Ellen Pao Lawsuit: Tech Startups on the Stand - Re/code". Re/code.
  33. ^ "Ellen Pao Suit Against Kleiner Perkins Heads to Trial with Big Potential Implications". The New York Times. Retrieved March 6, 2015.
  34. ^ "Ellen Pao vs. Kleiner Perkins: Opening arguments touch on sex, power and money - San Jose Mercury News". Mercurynews.com. Retrieved March 6, 2015.
  35. ^ "Ellen Pao lawyer: Kleiner Perkins 'not a level playing field'". Usatoday.com. February 26, 2015. Retrieved March 6, 2015.
  36. ^ "Ellen Pao Lawsuit Day 2 - Re/code". Re/code.
  37. ^ http://www.theguardian.com/technology/2015/mar/13/ellen-pao-gender-lawsuit-silicon-valley
  38. ^ "The Depressing Gender Gap at the Nation's Top 71 Venture Capital Firms [SLIDESHOW". Observer. Retrieved March 6, 2015.
  39. ^ "Man Ellen Pao accused of retaliation had bonus docked". Usatoday.com. March 2, 2015. Retrieved March 6, 2015.
  40. ^ Liz Gannes (February 24, 2015). "VCs in Bathrobes, Women Asked to Play Secretary, Angry Texts: Day One of Pao v. Kleiner Perkins". Re/code. Retrieved March 8, 2015.
  41. ^ Heather Somerville (February 2, 2015). "Ellen Pao seeking $16 million in sex discrimination lawsuit against Kleiner Perkins Caufield & Byers". San Jose Mercury News. Retrieved March 20, 2015.
  42. ^ "At Kleiner Perkins Trial, Randy Komisar Accuses Ellen Pao of ‘Politicking’" Liz Gannes Re/code March 17, 2015, accessed March 18, 2015]
  43. ^ http://usa.chinadaily.com.cn/epaper/2015-03/12/content_19792994.htm
  44. ^ See live blogs for the first two weeks of the trial at http://recode.net/tag/pao-trial/ accessed March 16, 2015
  45. ^ "Expert Slams Kleiner Perkins’ Investigation Into Pao’s Allegations" Re/code March 16, 2015
  46. ^ Elizabeth Weise (March 16, 2015). "Mary Meeker: No discrimination at Kleiner Perkins". USA Today. Retrieved March 17, 2015. it wouldn't have been hard for her to find a new job and quickly make up any potential lost income
  47. ^ "Liveblog: Mary Meeker Testifies in Pao/Kleiner Perkins Case" March 16, 2015
  48. ^ a b Heather Somerville (March 4, 2015). "Ellen Pao trial: Doerr says tech, VC firms would do better 'if they hired more women'". San Jose Mercury News. Retrieved March 19, 2015.
  49. ^ Heather Somerville (February 20, 2015). "Ellen Pao, Kleiner Perkins face off in $16M sex discrimination trial". San Jose Mercury News. Retrieved March 23, 2015.
  50. ^ http://www.bbc.com/news/technology-32019790
  51. ^ http://www.usatoday.com/story/tech/2015/03/23/ellen-pao-kleiner-perkins-sex-discrimination-160-million/25214583/
  52. ^ http://www.theguardian.com/technology/2015/mar/13/ellen-pao-gender-lawsuit-silicon-valley
  53. ^ a b Davey Alba (March 19, 2015). "Kleiner Witness Says Ellen Pao Was 'a Bit Too Opinionated'". Wired Magazine. Retrieved March 20, 2015.
  54. ^ http://www.usatoday.com/story/tech/2015/03/05/ellen-pao-kleiner-perkins-stephen-hirschfeld/24453557/
  55. ^ http://www.theverge.com/2015/3/9/8146253/kleiner-perkins-ellen-pao-pattern-matching
  56. ^ a b c d e f g Liz Gannes and Nellie Bowles (March 24, 2015). "Live: Closing Arguments in Ellen Pao's Gender Discrimination Case Against Kleiner Perkins". Re/code. Retrieved March 24, 2015.
  57. ^ a b Liz Gannes and Nellie Bowles (March 25, 2015). "Live: Day Two of the Ellen Pao v. Kleiner Perkins Case Summations". Re/code. Retrieved March 25, 2015.
  58. ^ Andrea Peterson (March 24, 2015). "The sex discrimination trial that rocked Silicon Valley is almost over. Here's what you need to know". The Washington Post. Retrieved March 25, 2015. If the jury rules in favor of Kleiner Perkins, Pao will get nothing. To issue a verdict, nine jurors out of 12 must agree on whether or not there was discrimination.
  59. ^ Liz Gannes and Nellie Bowles (March 27, 2015). "Live: The Pao v. Kleiner Perkins Verdict". Re/code. Retrieved March 27, 2015. That's the full verdict. No on all claims.
  60. ^ http://nypost.com/2015/02/18/case-builds-against-former-ny-hedgie-buddy-fletcher/
  61. ^ Rimer, Sara (May 18, 2004). "$50 Million Gift Aims to Further Legacy of Brown Case". The New York Times. The New York Times Company. Retrieved April 29, 2013.
  62. ^ http://www.vanityfair.com/society/2013/03/buddy-fletcher-ellen-pao
  63. ^ Bradley, Richard (February 28, 2012). "Buddy Fletcher: Financial Genius — or a Fake?". Boston Magazine. Retrieved April 22, 2014.

Further reading

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