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Five Key Points in the Kleiner Perkins Defense of the Ellen Pao Case

Kleiner Perkins says that its treatment of Pao was not based on her gender but rather on her performance.

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Venture capital firm Kleiner Perkins Caufield and Byers is defending itself against claims that it discriminated and retaliated against former partner Ellen Pao, who was fired from the firm after filing suit in 2012.

Kleiner Perkins says that its treatment of Pao was not based on her gender but rather on her performance.

In a court filing made public today as the jury selection process begins, the firm’s legal counsel laid out its defense. Until now, Pao’s side of the story has been more widely known, as she filed the original complaint nearly three years ago. Here’s what to expect from the defense:

  1. Kleiner Perkins will focus on Pao’s past performance reviews to show that her co-workers and supervisors detailed a history of her being political and dismissive dating back to the earliest days in 2005 and that later, when she became a junior investing partner, she was “territorial” and perceived by outsiders as lacking self confidence and street smarts. (It’s hard to ignore how the phrases here play off tropes about ambitious women in the business.)
  2. The defense counsel will draw on Pao’s emails and texts to prove her relationship with Ajit Nazre was consensual with talk of chocolates and I-love-yous. While Pao had offered some details of the relationship in her original complaint, she was more guarded during a deposition. This is Kleiner Perkins’ chance to replay history and use Pao’s own words to argue its case.
  3. The defense team will also use Pao’s emails to show that she was personally concerned about mistreatment in 2008, but did not approach the firm or file a complaint until years later. It will say that as a Harvard-trained lawyer, she should have been aware of the Fair Employment and Housing Act’s one-year statute of limitations. It will say that its treatment of her had nothing to do with an affair in 2007 that was not widely known about at the firm. In other procedural matters, the firm is also opposing her efforts to call as witnesses people involved in Kleiner Perkins’ public relations department about her case, and criticizing her for conflating sexual harassment with gender discrimination.
  4. Kleiner Perkins will argue that it paid and treated Pao better than some of her male peers. It will try to paint John Doerr, who originally hired Pao into the firm as his chief of staff, as her staunch defender despite efforts by others on staff to ease her out of the firm. At times, the brief is almost laughingly dismissive of Pao. “Pao’s complaints that she did not sit in the front row at a meeting, was not sitting at a table during an event, her office was not on ‘the power corridor’ (whatever that means), she was not included on someone’s interview schedule, she was asked to take notes during a meeting — among many, many others — are simply not even close to being adverse employment actions sufficient to constitute retaliation.”
  5. Kleiner Perkins doesn’t want to pay Pao any more money. The firm says that by publicizing her firing and finding work at Reddit, Pao was not entitled to the severance it offered. Its lawyers will try to point out that she is doing just fine as interim CEO of the Web giant Reddit. And Kleiner Perkins also argues that its funds — the LLCs that contain the actual money the VC firm raises and invests — were responsible for decisions about Pao’s remuneration. Pao did not sue the funds because she had signed agreements with them that would compel her to arbitrate her issues, rather than get to go to court, which is what she wanted.

The Kleiner Perkins witness lineup is extensive, including many of its current and former partners: Doerr, Ted Schlein, Ray Lane, Juliet deBaubigny, Susan Biglieri, Matt Murphy, Randy Komisar, Beth Seidenberg, Mary Meeker, Paul Vronsky, Chi-Hua Chien, Amol Deshponde and Wen Hsieh.

Here’s the brief:

Kleiner Perkins brief

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