Ellen Pao vs. Kleiner Perkins: Jury Rejects Gender Discrimination Claims

The final verdict came only after Superior Court Judge Harold Kahn sent the jury back to deliberate further on Pao's claim that she was fired in retaliation for a critical memo she wrote and/or filing suit against Kleiner Perkins.

Unlike criminal trials, the jury in this civil case did not need to be unanimous in its verdict; instead, only three-fourths of the 12-member panel -- nine members -- needed to agree to reach a verdict.

The jury reported when it first returned at 2 p.m. Friday that it had resolved all four of the questions it was charged to decide. But when Judge Kahn polled the jury, one member apparently changed his vote on the retaliation question, which had reportedly been decided 9-3 in favor of Kleiner. That switch meant four jurors agreed Pao's firing was retaliatory, with eight members disagreeing.

The jury returned with a decision on that last question at 4:30 p.m.: 9-3 in favor of Kleiner Perkins.

The questions the jury decided against Pao (and the vote, per the count published by re/code) were:

Was Ms. Pao's gender a substantial motivating reason for Kleiner Perkins not promoting Ms. Pao to senior partner? The vote: 10 no, 2 yes.
Were Ms. Pao's conversations in December 2011 and/or her January 4, 2012, memorandum a substantial motivating reason for Kleiner Perkins' not promoting her to senior partner? The vote: 10 no, 2 yes.
Did Kleiner Perkins fail to take all reasonable steps to prevent gender discrimination against Ms. Pao? The vote: None reported, as this question was rendered moot by "no" votes on first two questions.
Were Ms. Pao's conversations in 2011 and/or her Jan. 4, 2012, memorandum and/or her filing this lawsuit a substantial motivating reason for Kleiner Perkins' decision to terminate Ms. Pao's employment? The vote: 9 no, 3 yes.

The December 2011 conversations and January 2012 memorandum mentioned in the second question refer to Pao's complaints to Kleiner Perkins management about ongoing sexual harassment and gender discrimination at the firm.

According to accounts from the courtroom, five men and five women voted against Pao on the first questions above; one man and one woman voted to support her claim. On the fourth question, two women and one man on the jury voted to support Pao's claim.

Pao, who was hired as a junior partner and chief of staff to Kleiner Perkins managing partner John Doerr in 2005, had sought $16 million in compensation for Kleiner's alleged discrimination, plus punitive damages.

The jury's verdict form is below, followed by earlier Associated Press accounts of closing arguments in the case.

Sudhin Thanawala
Associated Press

Update, 2:15 p.m. Wednesday: Jury deliberations began Wednesday in a high-profile sex discrimination lawsuit that has shined a light on the gross underrepresentation of women in the technology and venture capital sectors of Silicon Valley.

The jury of six men and six women began discussing Ellen Pao's lawsuit against Kleiner Perkins Caufield & Byers after an attorney for the prestigious venture capital firm said it did not retaliate against Pao by deciding not to promote her after she filed a gender bias complaint.

The decision about a possible promotion was made before Pao filed her complaint, defense lawyer Lynne Hermle told jurors during her closing argument.

Pao's attorneys have portrayed her as the victim of a male-dominated culture at Kleiner Perkins, where she was allegedly subjected to retaliation by a male colleague with whom she had an affair and to a discussion about pornography aboard a private plane.

Pao also testified about receiving a book of erotic poetry from a male partner at the company.

Update, 7:40 a.m. Wednesday: Lawyers in a high-profile gender bias lawsuit against a Silicon Valley firm argued Tuesday that the woman behind the case was either an accomplished junior partner who was passed over for a promotion because of discrimination or a failure who sued to get a big payout as she was being shown the door.

The attorneys presented the contrasting portraits of Ellen Pao in their closing arguments to a San Francisco Superior Court jury in the case against venture capital firm Kleiner Perkins Caufield & Byers.

[The tech blog re/code is live-blogging the final arguments. And the lengthy jury verdict form, released by the court today, is embedded below.]

Company lawyer Lynne Hermle challenged Pao's claim that she sued to help women facing gender discrimination at the firm.

"The complaints of Ellen Pao were made for only one purpose — a huge payout for Team Ellen," Hermle said.

Pao's lawyer made his closing argument earlier, telling jurors the company had different standards for men and women that led to the denial of a promotion to Pao despite her accomplishments.

"The evidence in this case compels the conclusion that men were judged by one standard and women by another," lawyer Alan Exelrod said. "The leaders of Kleiner Perkins are the ones responsible for this double standard."

The suit has shined a light on the gross underrepresentation of women in the technology and venture capital sectors and has led some companies to re-examine their cultures and practices — even before the jury reaches a verdict.

Closing arguments are set to continue on Wednesday.

Pao's attorneys have portrayed her as the victim of a male-dominated culture at Kleiner Perkins, where she was allegedly subjected to retaliation by a male colleague with whom she had an affair and a discussion about pornography aboard a private plane. Pao also testified about receiving a book of erotic poetry from a male partner at the company.

Her lawsuit says she was fired in 2012 after complaining about gender discrimination.

Exelrod called the firm a "boys club" and referenced trial testimony and emails from prominent venture capitalist John Doerr, a partner at Kleiner Perkins, to show that Pao had been successful at the company.

"This case should be about what Ms. Pao did for Kleiner Perkins," Exelrod said.

Among her accomplishments were convincing the firm to invest in a company that later enjoyed great success and helping two companies merge, Exelrod said.

Exelrod said two male colleagues of Pao had been promoted, even though one was called confrontational and another was accused of having "sharp elbows," an apparent reference to his treatment of other workers.

Exelrod mentioned the affair, discussion about pornography on the plane and the book of poetry in his closing argument. He accused Kleiner Perkins of trying to smear Pao as a woman who had a sexual relationship at work by characterizing her relationship with the male colleague as a consensual affair gone wrong.

Pao has said the colleague hounded her into the relationship and lied about his wife having left him.

Kleiner Perkins has said Pao was a chronic complainer who twisted facts and circumstances in her lawsuit and had a history of conflicts with colleagues that contributed to the decision to let her go.

Hermle showed jurors a slide with comments from Pao's work reviews that called her "territorial," and "not a good teammate."

The lawyer said the men promoted over Pao had prior venture capital experience and had founded companies, unlike Pao.

To support her claim that Pao was interested only in a payout, Hermle showed jurors an email Pao sent in December 2011 — a month before she filed her complaint — in which Pao said a friend at another venture capital firm was helping her get a lawyer to negotiate.

A judge ruled over the weekend that Pao can seek punitive damages that could add millions of dollars to a possible verdict in her favor. She is seeking $16 million in lost wages and bonuses.

Experts say Pao's case has increased awareness about seemingly small indignities faced by women in the technology and venture capital sectors. Consultant Freada Kapor Klein said she has recently been contacted by more than a dozen venture capital and technology companies asking her how they can improve the environment for women.

During her testimony, Pao told jurors that her lawsuit was intended in part to create equal opportunities for women in the venture capital sector.

A study released last year by Babson College in Massachusetts found that women filled just 6 percent of partner-level positions at 139 venture capital firms in 2013, down from 10 percent in 1999.

Kleiner Perkins says more than 20 percent of its partners are women.

Original post: An attorney for a woman suing a prestigious Silicon Valley venture capital firm for gender discrimination said Tuesday the firm judged men and women by different standards.

Lawyer Alan Exelrod made the claim during his closing argument in the lawsuit filed by Ellen Pao against Kleiner Perkins Caufield & Byers that has shined a light on gender imbalance in the technology and venture capital sectors.

The case has caused some technology and venture capital companies to re-examine their cultures and practices even before a jury reaches its verdict.

"The evidence in this case compels the conclusion that men were judged by one standard and women by another," Exelrod said. "The leaders of Kleiner Perkins are the ones responsible for this double standard."

Lynne Hermle, an attorney for the firm, was expected to make her closing argument later in the day.

Pao's attorneys have portrayed her as the victim of a male-dominated culture at Kleiner Perkins, saying she was subjected to retaliation by a male colleague with whom she had an affair.

They say she was fired in 2012 after complaining about gender discrimination.

Kleiner Perkins has countered that Pao was a chronic complainer who twisted facts and circumstances in her lawsuit and had a history of conflicts with colleagues that contributed to the decision to let her go.

A judge ruled over the weekend that Pao can seek punitive damages that could add millions of dollars to a possible verdict in her favor. She is seeking $16 million in lost wages and bonuses.

Consultant Freada Kapor Klein said she has recently been contacted by more than a dozen venture capital and technology companies asking her how they can improve the environment for women. Klein, whose firm specializes in addressing bias in the workplace, declined to name the firms but said they approached her as a result of the Pao case.

"People understand that the issues raised in this trial are about company culture in general," Klein said.

Experts say Pao's case has increased awareness about seemingly small indignities faced by women in the technology and venture capital sectors.

"These subtle incidents individually seem trivial, but cumulatively create a climate that is unwelcoming," said Deborah Rhode, a law professor at Stanford University who teaches gender equity law.

During testimony, Pao told jurors that her lawsuit was intended in part to create equal opportunities for women in the venture capital sector.

Paul Gompers, a Harvard business school professor, was hired by Kleiner Perkins to conduct research about the venture capital industry. He testified that Kleiner Perkins placed more women on the boards of companies in which it invested than any of the 3,000 venture capital firms that he reviewed.

However, a study released last year by Babson College in Massachusetts found that women filled just 6 percent of partner-level positions at 139 venture capital firms in 2013, down from 10 percent in 1999.

Since Pao's case began, more venture capital firms have called seeking female candidates for partner-level positions, said Joe Riggione, co-founder of True, an executive search firm for venture capital and technology companies.

Technology and venture capital firms have become more open over the past two years about discussing gender and racial inequities, said Nicole Sanchez, founder of Vaya Consulting, which tries to help Silicon Valley companies increase diversity.

Ellen Pao vs. Kleiner Perkins: Jury Rejects Gender Discrimination Claims

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