By Gerard Pizarro, Esq.
Senior Attorney, California Law Partners, APC
against the most successful and most powerful venture capital fi rm in Silicon Valley. Kleiner Perkins funded and helped grow multi-billion dollar corporations such as Amazon, Genentech, and Google. Ellen Pao alleged she was the victim of gender bias and was wrongfully terminated from her position as a junior partner in the firm. While the trial did not result in a knockout win for Pao, the lawsuit exposed the secrets of a traditionally white, male-dominated culture and created scandal in Silicon Valley. In March 2015, I spent four days in the courtroom mesmerized by the most critical parts of the five-week civil jury trial in San Francisco. On the first day, seated in the front row, I observed plaintiff’s counsel as he opened the trial by exposing Ellen Pao’s annual salary- $350,000. The look on the faces of all twelve jurors depicted the shocking sentiment that filled the courtroom, all of whom were raking in only $11/day in upholding their civic jury duty.
Subsequently, Ellen Pao took the witness stand. She testified that on a business trip to Germany, she’d been hit by a taxicab while attempting to cross the street. It was at this time, while injured and in shock, that Ajit Nazre, her co-worker, made sexual comments and gestures towards her. “Did you do anything to stop it?” Lynn Hermle, Kleiner’s lawyer asked on cross-examination. “What?” Pao replied. “His sexual advances?” asked the lawyer. “I’d just been hit by a cab!” Pao exclaimed. In the world of high stakes venture capital with million-dollar start-up valuations and billion-dollar initial public offerings, the face of humanity revealed itself in that very moment. Pao had been preyed upon in a moment of physical vulnerability. I wondered if this was the great metaphor of the case. The jury seemed to be on Pao’s side at that moment, because they sympathized with her portrayal as a victim of predatory behavior.
On my second day of the trial, Pao, who was single at the time, conceded she’d had an affair with Ajit Nazre (the same man who had hit on her in Germany), months later. She’d tried to fend him off but he was relentless in his pursuit of her, so she began a secret affair and sexual relationship with him, convinced by him that he was separated from his wife. However, once Pao discovered that Nazre had not left his wife, Pao immediately broke it off. The affair was later revealed to the senior partners of Kleiner, and Nazre would go on to become a general partner of the firm but Pao would not be promoted. Nazre’s true character was revealed, as he would eventually be fired after he duped Trae Vassallo, another female member of the firm, to attend a business dinner in New York with him. In actuality, there was no business, Nazre cornered Vassallo alone. After dinner that night, Nazre surprised Vassallo’s hotel room wearing only a robe and carrying a bottle of wine in an attempt to seduce her.
As the trial progressed, circumstances of gender bias in the corporate culture of Kleiner Perkins continued to unfold. In one instance, Pao testified about an all-male discussion on board a private plane regarding porn stars, the Playboy Mansion, and the “hotness” of Marissa Meyer, the current CEO of Yahoo!. Pao was the only female on the plane. On another occasion, at an annual investing conference, Pao testified that Ray Lane, a senior member of the fi rm and the former President of Oracle, instructed her and Trae Vassallo, the only women in attendance, to take notes like a secretary and did not make the same instructions to their male counterparts. Ellen Pao argued her gender was a “substantial motivating factor” in 1) not being promoted to general or senior partner, and 2) being terminated from the firm.
On my third day of the trial, Kleiner Perkins presented their defense. It was revealed that Ellen Pao had created a “resentment chart” of people in the firm she disliked or resented. She went on to complain about several members of the firm. The more she went on about what was wrong about “the other person,” the more the jury seemed to collectively lean back in disbelief. Pao’s performance reviews, which the jury later heavily relied upon, showed a pattern of arrogance toward her fellow co-workers, an unwillingness to get along with others, and an insistence on always being right.
On my final day of the trial, during closing arguments, the tide had turned against plaintiff, Ellen Pao. The defense was relentless over the five-week trial showing that it was Ellen Pao’s performance, not her gender, that was the substantial motivating factor not to promote her and to ultimately terminate her. Ellen Pao should have sued Kleiner Perkins for retaliation only, arguing that her termination was a result of her actions as a whistle blower, rather than her actions as a woman. That was Pao’s strongest claim. Indeed, John Doerr said it best in an email shortly before Pao was fired (and I’m summarizing here) when he said, “I have concerns about how partnership decisions are being made…Pao had one of the best years ever for a junior partner.” If that was the case, then why her sudden termination? Because she filed suit for gender discrimination? Ultimately, Pao needed at least nine jurors to side with her. She lost on all claims—the jury did not believe that her gender was a substantial motivating factor when Kleiner Perkins made their decisions relating to her promotion or her termination. It appeared that Ellen Pao sued Kleiner Perkins because the man with whom she had an affair with was promoted, while she was not. That scorned rage coursed through her veins for years culminating in this lawsuit. The testimony was salacious and riveting filled with sexual innuendo and misconduct. Corporate empires were made and personal reputations destroyed, but it was a broken heart that jerked open the secretive world of Silicon Valley. As this case shows, a legal strategy premised on sex and scandal, while powerful in the realm of public opinion, is a weak tactic in the legal arena.
About Gerard Pizarro: Gerard serves as a Senior Attorney at California Law Partners, APC, and specializes in personal injury, employment law, corporate litigation, and government contracting.
To contact Gerard for questions or comments,
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