Is Ellen Pao Just a Gold Digger?

Gold Digger - Ellen Pao v. Kleiner PerkinsThe Pao v. Kleiner Perkins Caufield & Byers (KPCB) lawsuit is now with the jury.

The case pits a single woman – Ellen Pao – against KPCB – one of the largest and most established venture capital firms in the country.

Ellen Pao’s husband is in bankruptcy. Partners at KPCB are clearly not. Founding partner Tom Perkins, for example, is worth over $8 Billion.  General partner, John Doer – $3.4+ Billion.

Yet, despite this huge discrepancy in power and money between the parties, yesterday Kleiner Perkins’ lawyer argued to the jury that Kleiner Perkins is really the victim here – not Ellen Pao.

Essentially, KPCB’s lawyer argued that Pao shouldn’t win because she is nothing but a money grubbing, ungrateful and offensive former employee who they justly fired because she was so hard to get along with no one wanted to work with her.

Thanks to Liz Gannes’ live blog over at Recode, here are a few of the quotes from KPCB’s closing argument:

“[Ellen Pao] made a determined, deliberate, sustained attack on Kleiner, and she made sure the press knew all about it.”

“[Ellen Pao] wanted the eight figures. When Kleiner Perkins refused to pay her, she filed this lawsuit. Not because she wanted an even playing field for women. None of it had anything to do with any woman but Ellen Pao.”

“This twisting of facts isn’t a new development . . . Beginning in the fall of 2011, while her job search wasn’t working out, Ellen Pao wanted the big payout.”

“As happens in a small workplace, [Ellen Pao’s] corrosive pattern of attack alienated her co-workers and led to tension and distrust.”

“The record here is crystal clear about [Ellen Pao’s] conflicts with others despite what you just heard, an attempt to dismiss them.”

Now admittedly Ms. Pao is not without financial resources. She has two graduate degrees from Harvard (including a law degree) as well as bachelors degree from Princeton and her annual compensation when she was fired from KPCB was ~ $560,000. She is currently Interim CEO of Reddit.

But by comparison to KPCB she is still David and KPCB is clearly Goliath.

So, what do you think? How persuaded are you by KPCB’s efforts to cast itself as the victim of a money grubbing, ungrateful employee?  Is Ellen Pao one of those gold diggers Kanye West has warned us about?  

About the Author:  Lorene F. Schaefer, Esq. is an attorney and the President of Workplace Investigations Group, a nationwide network of employment attorneys who conduct impartial internal investigations and deliver training on how to conduct effective internal investigation that will withstand legal scrutiny. She is also the President of Win-Win Resolve, a consulting company founded by a group of employment attorneys to help businesses solve workplace conflict and compliance concerns at the lowest and earliest levels possible.  Lorene is available nationwide as a workplace investigator and mediator.

Will Kleiner Win the Discrimination Battle but Lose the Retaliation War?

#ellen Pao v. #KleinerPerkins Most of the commentary on the Ellen Pao v. Kleiner Perkins jury trial has been focused on whether or not Pao will prevail on her claim of gender discrimination, but the testimony over the last couple of days has revealed that it’s actually Pao’s claim of retaliation that poses the highest risk of a jury verdict.

Under the law, Pao could prevail on her retaliation claim even if she loses her discrimination claim.

If you think about it, that’s not that surprising as somehow it just seems easier for a juror to believe that the partners at Kleiner Perkins changed their behavior towards Pao after she sued them than to believe that they intentionally discriminated against her because she’s a woman.

To prevail on her retaliation claim Pao must show three things:

1) she engaged in a “protected activity”,

2) Kleiner Perkins took an “adverse employment action” against her; and

3) her “protected activity” was a substantial factor motivating Kleiner Perkins’ “adverse employment action.”

Admittedly, I’m not in the court room, but I have been following the mainstream and social media coverage.  In fact, it’s almost addicting and I’ve not been as productive as I normally am since the trial started.  I’ve particularly enjoyed reading the tweets and live blogging of  Liz Gannes and Nellie Bowles at Recode and the coverage by Davey Alba of Wired, Marisa Kendall of The Record, Nitasha Tiku of The Verge, Elizabeth Weiss of USA Today, and Jeff Elder and Deborah Gage of the Wall Street Journal.

Here’s how I see the case shaping up so far on Pao’s claim of retaliation:

#ELLENPAO retaliation claim against #KleinerPerkins

It is undisputed that Ellen Pao filed her lawsuit against Kleiner Perkins on May 10, 2012.  Filing a lawsuit clearly qualifies as “protected activity.”  So — Check on that element of her retaliation claim.

It is also undisputed that Kleiner Perkins terminated Pao only 5 months later – October 1, 2012.  Being fired is clearly an “adverse employment action.”  So — Check on that element of her retaliation claim.

That leaves only the element of causation.  According to Lynn Lieber, a California lawyer and member of Workplace Investigations Group, the California Supreme Court has not ruled on the causation standard for retaliation claims under California law.  Ms. Lieber says the likely outcome when it does is that the the standard will be “substantial motivating factor,” which is the same as it is for FEHA discrimination claims.  If not, she says the standard will be merely “a motivating factor.”

In the Pao v. Kleiner Perkins case, my reading of the commentary coming out of the courtroom is that Pao may well be able to prove the causation element of her retaliation claim even under the higher causation standard of “substantial motivating factor.”  According to media reports, Pao’s supervisor testified this week that he didn’t start documenting her poor performance until 4 days AFTER she filed her lawsuit.  That short time period between her protected activity of filing the lawsuit and the adverse action of starting to document her poor performance creates a strong inference of retaliation.  Yes, Kleiner Perkins has attempted to argue (in its Trial Brief at pages 25-26 and during the trial) that Pao’s performance had been poor for some time and that “the decision to terminate Pao’s employment was made in 2011.”

In light of her supervisor’s testimony this week, I’m not persuaded by Kleiner Perkins’ argument and don’t think the jury will be either.  The reality is that Kleiner Perkins had never placed her on a performance improvement plan or formally documented her allegedly poor performance until 4 DAYS AFTER SHE SUED THEM.

Looks like a duck.  Swims like a duck.  Quacks like a duck.  Screen Shot 2015-03-20 at 8.15.45 AM

It’s April Fools at the Employment Law Blog Carnival!

Employment Law Blog CarnivalWhy yes – Employment lawyers do have a sense of humor and in honor of April Fools Day Robin Shea over at Constangy, Brooks, Smith & Prophete, LLP has pulled a few pranks in this month’s edition of the Employment Law Blog Carnival.

So stop what you’re doing and head on over to the Employment and Labor Insider to check out the fantastic “EMPLOYMENT LAW BLOG CARNIVAL: April Fools’ Edition.”

http://www.employmentandlaborinsider.com/safety/employment-law-blog-carnival-april-fools-edition/

 

Creating an “Unseemly Sideshow” as a Trial Strategy? Guest Blog

SideShowLive-blogging of the Pao v. Kleiner Perkins trial (claims of gender discrimination in the workplace) continues today, and re/code has shared the judge’s assessment of Kleiner Perkins’ attempt to delve into the finances of Pao’s husband.

Re/code posted the judge’s apparently hastily prepared, overnight Order (it doesn’t even have a physical signature).  In less than a page, the California judge dismantled the employer’s hope to make Pao’s husband a feature of the case.  Indeed, the judge described the strategy as an attempt to create an “unseemly sideshow” that needlessly invades the privacy of the couple, wastes the court’s time, and paints the strategy as irrelevant and distracting.

The judge cited an unpublished Tennessee case to pan the employer’s attempt to paint Pao as money-grubbing, noting that any person or entity bringing a lawsuit has a financial motivation to bring the suit.  Indeed, the suit was brought to make her “whole,” among other reasons.  The fact is so obvious, the order’s citation to an unpublished order in a faraway jurisdiction is to be forgiven by “citation police.”

However, was this move by Kleiner Perkins less of a legal Hail Mary and more of a Public Relations strategy?  Arguably, Kleiner Perkins’ attorneys knew that the likelihood that dragging Pao’s husband and business into her workplace dispute was, at best, a long shot.  The value of raising Pao’s personal issues might have been of more value for attempting to sully her personally in the court of public opinion and create fodder for the media to churn on the employer’s behalf.

The shot fired by Kleiner Perkins, despite the legal loss, may serve a different strategy – not a trial strategy.  An “unseemly sideshow” is something that makes (Kardashians) or breaks (Bill Cosby) a person’s public  career.  Here, it may be a shot at what kind of post-trial career Pao may be able to have in the public’s eye.  For example, her ability to be an inspiration of the civil rights movement that may also include books, speaking engagements and more may be affected, depending on the kind of side show that is whispered into existence at trial.

Jennifer Keaton, Esq.About the Guest Blogger Jennifer Keaton, Esq.:  Jennifer is an employment attorney turned mediator and workplace investigator in Atlanta, GA.  She is also Vice President of Workplace Investigations Group, a nationwide network of experienced employment attorneys who conduct impartial internal investigations and provide training on how to conduct effective internal investigations that will withstand scrutiny.

 

No Matter the Verdict, has Kleiner Perkins Already Lost?

Social Media Battle Kleiner Perkins Ellen PaoIt is day 7 of the sex discrimination jury trial against a high-profile Silicon Valley venture capital firm and the social media debate is raging.

For those not following along, Ellen Pao, formerly a partner at Silicon Valley venture capital firm Kleiner Perkins Caulfield & Byers (“KPCB”), sued her then-employer for gender discrimination and retaliation in May 2012.

KPCB’s efforts to keep spectators and the media out of the courtroom failed and tweets have been flying out of the courtroom.   Others are live blogging their comments. Given the amount of main stream and social media coverage of this trial, one can’t help but step back and ask ….

has Ellen Pao already “won” the social media battle regardless of what the jury verdict is?

I’ve been writing about how social media is leveling the playing field for disgruntled employees and how millennials are increasingly using social media to challenge perceived discrimination or harassment for some time but the volume and intensity of social media coverage of this trial has taken us to a new level.

Insights for Business Leaders

If there was ever any doubt that having effective EEO and anti-harassment policies and procedures that are trusted by employees is critical in today’s world, the social media firestorm surrounding the Pao v. KPCB jury trial has surely eliminated it.

Smart employers recognize that it is no longer sufficient to comply simply with the minimal legal standards in responding to employee complaints.  Rather, they are working to implement policies and procedures for conducting internal workplace investigations that comply not only with the law but also adhere to the principles of procedural fairness.

Why?  Because research tells us that employees who perceive an employer’s internal dispute resolution processes and internal workplace investigations as procedurally fair or trustworthy are statistically less likely to sue or raise their complaints publicly on social media or to the government.

Click here to read an article with 6 Tips to Increase Employee Trust of Internal Workplace Investigations.

Is the C-Suite Ready for Trial Tweeting?

Tweets Flying Out of CourthouseThe tweets are flying out of the courtroom in day 5 of the highly anticipated Silicon Valley sex bias jury trial happening right now in a Superior Court of California San Francisco courtroom.

Journalists from the Wall Street Journal, Business Insider, Wired, The Verge, VentureWire, USA Today, and Re/Code are sharing their observations of the jury trial on Twitter®. There are also Tweets from lay people.

To say the least, navigating this strange, new world presents lots of challenges for business leaders. Everyone in the C-Suite knows the importance of being well-prepared for questions from investors and analysts at investor relations presentations, but how prepared are business leaders to respond to questions coming on Twitter or other social media accounts?

Consider, for example, the impact on employee recruitment and retention of the following Tweets coming out of the courtroom in the Ellen Pao v. Kleiner Perkins Caufield & Byers jury trial:

 

More Women Needed in Leadership

Screen Shot 2015-03-02 at 4.08.57 PM

Screen Shot 2015-03-02 at 4.08.02 PM

locker room mentality at Kleiner Perkins

Complaints at Kleiner Perkins

Contempt - Ellen Pao v.  Kleiner Perkins

 

Ellen Pao v. Kleiner Perkins

Ellen Pao v. Kleiner Perkins

 

Will Employer’s Attempt to Keep Ellen Pao Discrimination Trial Secret Work?

Stop Spectator AccessNearly three years after a former junior-partner at venture capital firm Kleiner Perkins Caufied & Byers LLC filed her lawsuit alleging gender discrimination and retaliation, the jury trial appears set to begin next week.

As a general matter, jury trials of civil discrimination claims are presumptively open to the public.   This right of the public to attend civil trials is rooted in democratic principles as articulated in 1884 by Oliver Wendell Holmes who was then a justice on the Massachusetts Supreme Court:

“It is desirable that the trial of [civil] causes should take place under the public eye, … not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

Cowley v. Pulsifer, 137 Mass. 392 (1884).

In a motion filed yesterday, Kleiner Perkins argues that the right of the media and public to attend these types of civil jury trials is not absolute. Citing the right to privacy of non-party employees and the “injurious effects” of disclosing its confidential and commercially valuable business information, Kleiner Perkins has asked the judge to prevent spectators from watching certain parts of the jury trial.

Specifically, Kleiner Perkins has asked that the Court exclude

“spectators from the courtroom when evidence is presented regarding (1) third-party employee compensation and performance . . . (2) KPCB’s confidential/proprietary business information and financial performance; and (3) investment financial information and performance regarding third-party Managing LLC’s funds.”

To read the full motion click here.

Opposition Likely to Motion to Exclude Spectators

Even if for some reason Ellen Pao’s legal team decides not to oppose Kleiner Perkins’ motion to exclude spectators from the courtroom, I think it is safe to predict that the media will ask to intervene to oppose the motion. This case has been widely followed in the media and given the amount of coverage the public interest in the case seems clear.

Assuming this case does not settle, I will be providing updates on this issue of public access to the jury trial as well as the case more generally as the case proceeds.

What Can You Learn From Wal-Mart’s Screw Up?

Walmart SanctionedIn December 2014, a federal judge here in Atlanta sanctioned Wal-Mart Stores Inc.for destroying evidence in an employee discrimination case. The sanction was two fold: (1) Wal-Mart was ordered to pay $19,980.00 in attorney’s fees to the employee’s attorney; and (2) the federal judge held that if the case proceeded to a jury trial the jury would be instructed to presume that Wal-Mart terminated the employee in retaliation for the employee filing a claim of discrimination with the Equal Employment Opportunity Commission.

Yes, you read that right. The federal judge decided that Wal-Mart’s conduct was so egregious he ordered that if the case proceeded to a jury trial he would instruct the jury that Wal-Mart had engaged in illegal retaliation. The only issue, at that point, for the jury to consider would be what amount of damages should be awarded.

Not surprisingly, given this ruling by the judge, the parties have now entered into a confidential settlement.

So, what did Wal-Mart do to deserve this drastic sanction?

Here’s the chronology of events according to the employee’s Motion for Sanctions for Spoliation of Evidence he filed with the Court:

Wal-Mart Chronology Sanctions

According to the documents filed with the court, Wal-Mart’s video surveillance system regularly taped over the videotapes in the cameras unless action was taken to stop that process. It is undisputed that neither the Store Manager nor anyone from the Human Resources department took the necessary steps to preserve the video tape.

In reading the court filings in this case, including the sworn deposition testimony of the Store Manager, it seems that at least one explanation for why Wal-Mart failed to take steps to preserve the video tape was that he didn’t think that there was going to be any dispute about whether or not the gate was left unlocked. If you believe his deposition testimony, he says that Abdulahi admitted he had left the Garden Center gate unlocked.

But it turns out that Abdulahi denied he left the Garden Center gate unlocked when he was questioned under oath during his deposition in the federal lawsuit.

So how could Wal-Mart have avoided this court sanction and what should other business leaders takeaway as the lessons learned from this case? I contacted James Radford, the attorney who represented the employee in this case, and he shared the following lessons for employers:

Slide1

In addition to the lessons suggested by James, I would add the following:

  • Train all of your employees responsible for employee discipline, including terminations, to ensure they understand the importance of preserving all of the information that they rely on to make disciplinary or termination decisions — even if they think (as this Wal-Mart manager likely did) that some of the information is redundant.
  • Train all of your employees responsible for conducting investigations into allegations of workplace misconduct in how to conduct and document investigations that will withstand legal scrutiny. Workplace Investigations Group offers training programs nationwide.
  • Implement a process for review of all terminations by Human Resources and/or your employer’s legal counsel.

 

EEOC’s Arguments to Supreme Court Antithesis of Transparency and Open Government

EEOC TrustOn January 13, 2015, the United States Supreme Court heard oral arguments in which the Equal Employment Opportunity Commission (“EEOC”) made arguments that fly in the face of President Obama’s call for transparency and open government.

In the case, Mach Mining v. Equal Employment Opportunity Commission, the EEOC acknowledged its statutory duty to “attempt to resolve” complaints where “reasonable cause” has been found “by informal methods of conference, conciliation and persuasion,” but argued that the EEOC’s compliance with this duty is not subject to judicial scrutiny.

Essentially, the EEOC seemed to be arguing

Trust us. We’re the government. We’re here to help.

Not surprisingly, that argument was not persuasive to several of the justices. Chief Justice Roberts, for example, commented during the oral argument that, “I am very troubled by the idea that the government can do something and we can’t even look at whether they’ve complied with the law.”

The issue of whether the EEOC’s conciliation efforts are subject to judicial scrutiny has been percolating in the lower courts for years. It seems safe to say that private employers and the government have spent millions of dollars debating this issue. In several cases, the EEOC has been sanctioned for failing to comply with its duty to conciliate.

The defense bar argues that the EEOC, at times, abuses its authority by failing to engage in good faith efforts to conciliate before filing lawsuits against employers and that only judicial scrutiny can serve as a check to this abuse of power. The EEOC argues that its duty to conciliate is one of agency discretion entrusted to it by Congress and that there is not a specific conciliation process in place and, as such, its conciliation efforts should not be subject judicial scrutiny.

What is the EEOC hiding? Why is it afraid to put its conciliation process up for review?

As Justice Scalia commented during oral argument, the remedy for the lack of standards is in the EEOC’s hands:

But the remedy for that is ­­ is at your hands.  As the other side said, you could issue rules which say, this is an informal process, but what it consists of is, number one, we give you notice of what the  -what the offense is; we sit down with you to discuss settlement of that; number three, we make apparent to you what our offer is for settling the matter, and whatever other rudiments of conciliation the agency believes in.

What’s wrong with that?

Indeed, what is wrong with us requiring that our governmental agencies be open and transparent in their operating processes?

The government offered three reasons for its failure to issue the regulations – all of which fall flat, especially in light of President Obama’s Open Government Directive:

  1. the EEOC “needs flexibility in these processes;”
  2. the EEOC has “its own training procedures about good ways to do conciliation and the steps to be taken;” and
  3. to issue such regulations assumes that there would be some type of judicial review of whether the EEOC complied with the regulations.

It is Time for Transparency of Process.

I say it is time to stop the debate and for the leadership at the EEOC to step up and lead. It is time for the agency to comply with President Obama’s open government directive. For the EEOC to continue to refuse to issue these much-needed regulations is a flagrant violation of Obama’s call for transparency and open government. It is also simply poor leadership.

Call to EEOC to Start Rulemaking Process

In March of 2013, I presented written testimony to the EEOC urging it to implement a pilot program incorporating a structured ADR process into the EEOC’s post-cause conciliation process. At the time, I suggested that implementing such a program would assist the EEOC in recognizing “the need to conserve its limited economic resources while at the same time staying focused on continuing its mission to stop and remedy unlawful employment discrimination so that the nation can achieve our ultimate vision of justice and equality in the workplace.”

I still think that incorporating a structured ADR process into the EEOC’s post-cause conciliation process would benefit both the agency and assist it in better meeting its mission.

Regardless, however, of the specifics of any conciliation process, the current refusal of the EEOC to issue standards must not continue.

I call on the leaders at the EEOC to comply with the “Open Government Directive” issued on December 8, 2009. To do so, the EEOC needs to take “specific actions to implement the principles of transparency, participation collaboration” as regards the process that the EEOC will follow in complying with its obligation to resolve complaints through informal efforts of conference, conciliation and persuasion.

HR Magazine: Being a Super Sleuth

HR MagazineThanks to HR Magazine writer, Dori Meinert, for extensively quoting me in her article “How to Conduct a Workplace Investigation” in the December 2014 edition of HR Magazine.  

Ms. Meinert’s article provides great insights for HR professionals and others responsible for investigating complaints of workplace misconduct.  She also provides prudent suggestions for HR and operational managers on how to avoid costly mistakes in responding to internal complaints of workplace misconduct

Click here to read the full article in HR Magazine titled – “How to Conduct a Workplace Investigation.”

About the Author: Lorene F. Schaefer, Esq. specializes in conducting prompt, impartial and thorough investigations. As President of Workplace Investigations Group, she also regularly delivers investigation training to employees responsible for Title IX compliance and investigation. She is also the author of Corporate Counsel’s Guide to Internal Investigations of Harassment, Discrimination & Retaliation, which will be published in 2015 by the ABA.