Early on in her closing argument, defense attorney Lynne Hermle showed the jury a picture of the plaintiff, Ellen Pao, surrounded by photos of 13 colleagues she had clashed with during her time at Kleiner Perkins, the legendary venture capital firm she's suing for gender discrimination. The pictures ranged from Pao's own assistant to her ex-boss and mentor, John Doerr. The slide on the projector was titled, “Pao’s Numerous Conflicts: What Is the Common Denominator?”
According to Hermle, what they all had in common was Pao. Pao had conflicts with virtually everyone she worked with closely, Hermle argued as she began recapping the defense's case late yesterday. Closing arguments continued this morning. The crux of Kleiner's defense is that Pao herself was the problem at the firm, not her gender. The only people who she didn’t have issues with, Hermle argued in San Francisco Superior Court, were employees with whom she didn't work closely in the first place.
Pao is suing her former employer, whose full name is Kleiner Perkins Caufield & Byers, for gender discrimination and retaliation. She claims she was unfairly passed over while men were promoted; when she complained about her issues, she says, she was penalized and eventually terminated. The trial, now in its fifth week, has sparked soul-searching about the lack of diversity in a tech industry where the workforce is dominated by men.
The case is expected to go the jury for deliberations later today after Pao's team presents its rebuttal. Pao attorney Alan Exelrod summed up her case yesterday in a three-and-a-half-hour argument that Pao brought in the returns while men got the promotions.
Hermle argued that Pao’s failure to succeed at Kleiner Perkins had nothing to do with gender or retaliation. On the contrary, she said, Pao saw an opportunity for a big payout. And, when she saw the writing on the wall that she would probably be fired, Hermle said, she went on the defensive. "Her complaints did not cause the lack of promotion," said Hermle. "The lack of promotion caused Ellen Pao’s complaints."
Throughout her closing argument, Hermle sought to show that Pao blamed others for her own failings and that she was simply not cut out to be a venture capitalist. Pao twisted facts to support her allegations, Hermle said, and she never intended to support other women. "The circumstances show you the complaints for Ellen Pao were made for one purpose,” Hermle said. “A huge payout for Team Ellen."
In 2005, her first year at the firm, Pao had already started ahead of her peers, Hermle argued. She had famed VC John Doerr’s support and mentorship from the beginning, but she did not succeed because she had her own advancement in mind rather than the good of the group, Hermle said. "She was not a fit for the team-based culture at the heart of venture capital, and she wanted credit," Hermle said. "She was dismissive of colleagues over and over."
On the other hand, Hermle said, Pao’s peers did what they could to overcome the criticisms they met early on in their careers. Pao, meanwhile, "refused to deepen her expertise to a thought-leader level," Hermle said, intimating that because Pao had already minted a sterling academic record, she may have thought she was a success "in her own mind, and didn’t need to fix anything."
But when Pao started to work closely with others in a team setting, she argued, her negative traits emerged. Hermle pointed to accusatory messages, unpleasant emails, constant complaints about colleagues---even a complaint about a peer "while his mother was dying of brain cancer in China," Hermle said.
As soon as Pao realized she wasn’t doing well for the firm, Hermle said, she began to collect evidence for the suit against Kleiner. She sent emails to herself, kept text messages of an affair between her and a married colleague "only when things were going badly," and got a lawyer to represent her during an internal investigation in which the firm looked into her claims of gender bias.
One by one, Hermle sought to poke holes in Pao’s version of events at Kleiner that allegedly showed gender bias No one but Pao could back up her claim that a male partner had said "women kill the buzz," she said. Many men were asked to sit in the back and take notes during off-sites. And a senior colleague's Valentine's Day gift of a Buddhist-themed poetry book that Pao called inappropriately erotic had a perfectly innocent explantation. Events that allegedly showed bias lacked context, or may not have even occurred, Hermle implied.
Finally, Hermle implored the jury, consider the highly successful women at Kleiner who declined to join Pao's suit. Not only did they refuse to join, Hermle said, but they testified had seen no discrimination at the firm.
In her rebuttal to Hermle's closing, Pao attorney Therese Lawless opened with an impassioned speech this morning. “Every individual in this country deserves to have equity in the workplace,” Lawless said. “Every individual is allowed to have the same standards apply to them. That is what she wanted,” she said, pointing to Ellen Pao, who sat a few feet away.
Lawless sought to appeal to the jury’s sense of justice, talking about the larger problem of gender inequality. “What really bothers me in this case is that some men think they can decide what she’s best at. And that’s wrong. That’s not tolerated anymore. It’s illegal,” she said.
She pointed to the mountain of performance reviews the jury had seen throughout the trial, saying it revealed something of the “alleged team-based culture” at the venture capital firm: that it was a highly competitive place where employees were constantly being judged and junior partners had no idea how they were performing. And the fact that the performance reviews were subjective, Lawless argued, was problematic. “Why did I show them to you?” she asked. “We’re all human beings in the workplace. We all have different personality traits. It didn’t hurt the men getting promoted, but it hurt Ms. Pao.”
The reviews themselves, Lawless argued, showed Pao got along with her teammates. She read glowing praise from Pao’s performance reviews from 2009 to 2012, which included descriptions of Pao as “a good listener,” “has the company’s best interests at the forefront,” and “personally approachable, professional.” Lawless said the defense team had simply put witness after witness on the stand saying that Pao did not get along with others, hoping if it was repeated enough, they would believe it.
She implored the jury to look at the work Pao produced for Kleiner Perkins—for instance, the work she did with patent company RPX, guiding them to an IPO within a few years. The idea that realizing profits shouldn’t be the firm’s criteria for judging good work in the venture capital world, she said, was disturbing.
After Lawless finishied, the twelve jurors---six men and six women---left to deliberate in a sequestered, windowless room that did not force them to use the public halls of San Francisco Superior Court. In this civil case, only nine of the twelve jurors have to agree on a verdict; it does not have to be unanimous. The jury received fourteen pages of instructions and a seven-page verdict form.
Pao is seeking $16 million in compensatory damages, a figure that could balloon if the jury decides in her favor and also awards punitive damages.
