1 ALAN B.

EXELROD (SBN: 50467)

MICHELLE G. LEE (SBN: 266167)
2 RUDY, EXELROD, ZIEFF & LOWE, L.L.P.
3 351 California Street, Suite 700
San Francisco, CA 94104
4 Telephone: (415) 434-9800
Facsimile: (415) 434-0513
5 abe@rezlaw.com
mgl@rezlaw.com
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7 THERESE M. LAWLESS (SBN: 127341)
LISA P. MAK (SBN: 260281)
8 LAWLESS & LAWLESS
180 Montgomery Street, Suite 2000
9 San Francisco, CA 94104
Telephone: (415) 391-7555
10 Facsimile: (415) 391-4228
11 tlawless@lawlesssf.com
lmak@lawlesssf.com
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Attorneys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF SAN FRANCISCO

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ELLEN PAO,

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Case No. CGC-12-520719

Plaintiff,

TRIAL BRIEF OF PLAINTIFF

ELLEN PAO

vs.

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KLEINER PERKINS CAUFIELD &

20 BYERS LLC AND DOES 1-20,
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Defendants.

Dept. 613
/ Trial Date: February 17, 2015

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PLAINTIFFS TRIAL BRIEF
CASE NO. CGC-12-520719

Plaintiff Ellen Pao submits this Trial Brief in support of her causes of action against her

2 former employer, Defendant Kleiner Perkins Caufield & Byers LLC (KPCB), for gender
3 discrimination, retaliation, and failure to take all reasonable steps to prevent discrimination from
4 occurring in violation of the Fair Employment and Housing Act (FEHA).
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I.

INTRODUCTION
Ellen Pao started her employment with KPCB in June 2005 as a Junior Partner working

7 for John Doerr, one of the Managing Partners of the firm. She was initially hired as John Doerrs
8 Chief of Staff with the additional title of Junior Partner. Pao was highly qualified for the
9 position, having an electrical engineering degree from Princeton University, a law degree from
10 Harvard Law School, an MBA from Harvard Business School, and having worked at small and
11 large technology companies. In the interview process, Pao made clear her interest in moving to a
12 full time investing position and was told that such a move would be possible. In the first year and
13 a half, her job included assisting Mr. Doerr with his portfolio companies, leveraging his time to
14 make him as productive as possible, and writing and editing speeches he delivered and articles he
15 authored.
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In 2006, Pao had a brief intimate relationship with Ajit Nazre, a Junior Partner at KPCB.

17 After Pao ended the relationship, Nazre retaliated against her in various ways in the work
18 environment. Because Doerr was very involved in green investments at the time, Pao had to
19 work in this investment area with Nazre, who specialized in sourcing green investments. The
20 retaliation Pao experienced included deliberately excluding her from communications, not
21 inviting her to important meetings, withholding information, and other retaliatory conduct,
22 described in the Complaint, that was designed to undermine Plaintiff in her work at KPCB. (First
23 Amended Complaint, 8-9.)
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For Valentines Day 2007, Randy Komisar, a Senior Partner of KPCB, came into Paos

25 office and gave her a book entitled The Book of Longing by Leonard Cohen, inscribed with a
26 handwritten note from Komisar. The book contains many sexual drawings and poems with
27 strong sexual content. At about the same time, Komisar asked Pao out to a Saturday night dinner,
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CASE NO. CGC-12-520719

1 telling her that his wife would be out of town. Pao turned down his offer of dinner. She
2 considered the book and the one-on-one, weekend-night dinner invitation to be inappropriate in
3 the workplace.
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In June 2007, Pao was frustrated with her work situation for a variety of reasons. After

5 discussions with two Managing Partners, Ray Lane and Ted Schlein, about resigning her position,
6 she informed Lane about Nazres sexual pursuit of her. Pao let Lane know how upset she was by
7 being misled by him and that he was engaging in behavior which made her work more difficult.
8 After telling Pao that he had met his wife at work, Lane suggested to her that she should not
9 make a mountain out a molehill.
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Later that month, Pao discussed with Doerr her thoughts about leaving the firm and about

11 Nazres behavior. Doerr was upset by the fact that Nazre was married but had engaged in a
12 relationship with another woman. Pao decided to remain at KPCB at Doerrs urging and she did
13 not insist that Nazre be terminated. She felt compassion for the upset in Nazre's life that was
14 occurring at that time. All she wanted was for Nazre not to interfere in her work. Nazre knew
15 that she had protested his behavior because both Lane and Doerr approached him to ask him what
16 had happened with Pao.
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At the same time Pao was discussing Nazre with Doerr, she told Doerr about Komisars

18 Valentines Day book and overture for dinner. Doerr did not indicate any interest in following up
19 on this issue and apparently never did.
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Because Nazre continued to subject Pao to undermining behavior, Pao wrote a note in her

21 May 2008 Self Review seeking help from the Managing Partners who receive the Self Reviews.
22 She also spoke to various Managing Partners about Nazre, but to no avail. By 2009, Nazre had
23 been promoted to the coveted position of Senior Partner. He now had much more power and
24 status within KPCB. Finally, in August of 2009, Pao made it clear that she had to leave green
25 investing to get away from Nazre. She then moved to the Digital team under Managing Partner
26 Ted Schlein and Senior Partner Matt Murphy and began the transition away from the Chief of
27 Staff position.
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A. Defendant KPCBs Track Record of Hiring and Promoting

Women Investing Partners.
KPCB began business in the early 1970s. From the inception of the company through at

4 least 2009, every single Managing Partner was male. For most of its history, it had no women in
5 investing positions. Finally, in 2005, one accomplished woman with an extensive job history was
6 hired from the outside as a Senior Investing Partner in Life Sciences, Dr. Beth Seidenberg. It
7 took until 2006 for KPCB to promote its first woman from Junior Partner to Senior Investing
8 Partner, Aileen Lee. Lee was to be the last woman promoted to Senior Partner until after Pao
9 brought this lawsuit in 2012.
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Three women were Junior Partners in mid-2009: Pao, Trae Vassallo, hired in 2003, and

11 Risa Stack, hired in 2003. Three men were Junior Partners as well: Wen Hsieh, hired in 2006 as
12 another Chief of Staff for Doerr, Amol Deshpande, hired in 2007, and Chi Hua Chien, hired in
13 2008 to work on the Digital Team. These six individuals were the next generation of venture
14 capitalists for KPCB.
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True to form, however, when it came time to promote Junior Partners, KPCB again

16 selected all men. None of the three women were promoted in 2011, even though they had more
17 tenure and more work experience than any of the men. Most significantly, none of the men had a
18 successful outcome for the companies they sourced. Pao, on the other hand, had been
19 instrumental in KPCBs investment in RPX Corporation. That investment in RPX resulted in a
20 successful Initial Public Offering in May 2011, directly before the promotion of the three men.
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B. Further Incidents of Discriminatory and Retaliatory Conduct.

Other events caused Pao to understand that women were not playing on a level playing

23 field at KPCB. For example, Pao was not invited to an all-male business dinner organized by
24 Chien at Al Gores apartment in May 2011, even though she lived in the same building as Gore
25 and the CEO of one of her portfolio companies was attending.
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In October 2011, Pao was traveling to New York on a private plane with Schlein and

27 executives from a portfolio company. In the small confines of the plane, the men engaged in
28 variety of very offensive sexual talk in front of Pao. Schlein did nothing to stop it. Then in a
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CASE NO. CGC-12-520719

1 firm offsite, Lane asked a long-tenured female Junior Partner to take notes as if she were a
2 secretary, rather than asking the more junior men. That Junior Partner refused. Lane then asked
3 Pao to take notes. Pao did not respond. Because it was so clearly sexist, somebody stepped in to
4 the situation.
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In December 2011, one of the female Junior Partners told Pao that Nazre had very

6 inappropriately sexually harassed her on a business trip, that she had reported the incident to
7 Lane, that Lane responded that she should be flattered, that Lane said he would do something
8 about it, but that he had done nothing. That female Junior Partner had to file a written complaint
9 to Managing Partners to get their attention. Stephen Hirschfeld was hired to investigate the
10 complaint. KPCB has refused to produce Hirschfelds report of the investigation, though it is
11 plainly relevant to the instant lawsuit.
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Pao was very upset by this series of events and was concerned about interviewing with

13 Hirschfeld in the investigation because of the difficult treatment she received after her June 2007
14 revelations about Nazre. Consequently, on January 4, 2012, she prepared and delivered her own
15 protest of the treatment of herself and other women. Hirschfeld was again hired to investigate
16 her grievance. He came to the conclusion that KPCB was free from gender discrimination.
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Thereafter, Pao was not made a General Partner of the new Fund XV that was raised. Nor

18 was the other female Junior Partner who complained about Nazre. On the other hand, all three
19 men who had been promoted to Senior Partner were made General Partners of Fund XV. Pao
20 protested this further discrimination. When it was clear that nothing was going to be done, she
21 filed this lawsuit.
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Pao filed her Complaint in court on May 10, 2012, alleging claims for gender

23 discrimination and retaliation. Following a July 2012 performance review that appeared to be
24 designed to create a paper trail for her termination, KPCB terminated Paos employment on
25 October 1, 2012. Her termination was further retaliation against her for protesting KPCBs
26 violation of FEHA and for filing suit under FEHA.
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KPCB claims that Pao had friction with fellow employees for much of her employment,
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CASE NO. CGC-12-520719

1 that she was not talkative enough in investment meetings, and that she had other faults.
2 According to KPCB, those were the reasons she was not promoted, not her gender. The evidence
3 will show that Pao performed extremely well, that KPCB looked for excuses not to promote
4 women to the position of Senior Partner, and that KPCB would not tolerate a woman who
5 challenged the men to make KPCB a decent place for women to succeed.
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This is not a complete recitation of the facts, or the evidence that will be introduced at

7 trial in support of Plaintiff's case, but it sets the framework for the legal analysis that follows.
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II.

LEGAL ISSUES TO BE PROVEN AT TRIAL

The laws prohibiting gender discrimination and retaliation for engaging in protected

10 activity clearly proscribe the type of conduct to which KPCB subjected Pao over the course of
11 her employment there.
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First Cause of Action

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As to her first cause of action for gender discrimination under Government Code Section

14 12940(a), Plaintiff must prove the following elements (CACI 2500):

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1. That Defendant KPCB was her employer;

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2. That Defendant KPCB failed to promote her;

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3. That the fact that Pao is a woman was a substantial motivating reason for KPCBs

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failure to promote her;

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4. That Pao was harmed; and

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5. That Defendants conduct was a substantial factor in causing her harm.

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The first two elements are not seriously in dispute, as it is clear from the record, which

22 will be presented at trial, that Plaintiff and the two other woman Junior Partners in her cohort
23 were not promoted in 2011, while three male Junior Partners were promoted. The promotion of
24 the men, despite having objectively less tenure at KPCB, less work experience, and less success
25 than Plaintiff, is evidence of discriminatory intent. However, Plaintiff should be allowed to
26 present relevant evidence that is probative of Defendants discriminatory motivations in their
27 promotion decisions, as is required by decisional authority in such discrimination cases (See
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CASE NO. CGC-12-520719

1 Plaintiffs Opposition to Defendants Motion in Limine Nos. 1 and 2).

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As evidence of discrimination, Plaintiff will present evidence regarding the pervasive

3 sexism, lack of regard for complaints made by female partners of sexual harassment, Managing
4 Partners responses to her complaints about retaliation from Nazre, sexist comments and attitudes
5 in the workplace, exclusion of women from meetings, as well as other evidence demonstrating
6 KPCBs discriminatory intent. She will also present evidence that she was restricted in her
7 investments as compared to male partners and was excluded from business meetings, events, and
8 other opportunities.
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Among the evidence Plaintiff will be present, and indeed must be allowed to do so, is

10 evidence regarding other the experiences of other women at KPCB in particular that of a female
11 Junior Partner who, like Plaintiff, formally complained to Managing Partners who had initially
12 ignored her concerns and, like Plaintiff, was retaliated against in being excluded from Fund XV
13 (See Plaintiffs Opposition to Defendants Motion in Limine No. 2).
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As to damages, Plaintiff has designated an expert, Carl Saba, to testify as to the amount of

15 Paos loss with regard to the components of her compensation at KPCB, namely salary, bonus,
16 and carried interest. The issue of the recovery of damages from KPCB and in what amount is the
17 subject of a number of motions in limine (see, e.g., Defendants Motion in Limine Nos. 3 and 9).
18 Plaintiffs expert, Mr. Saba, has used a robust and well-accepted methodology to provide a
19 reasonably precise estimate of Paos damages as a result of KPCBs unlawful conduct.
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Second Cause of Action

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As to her second cause of action for retaliation under Government Code Section

22 12940(h), Plaintiff must prove the following elements (CACI 2505):

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1. That Plaintiff protested ongoing gender discrimination, including sexual harassment,

at KPCB;

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2. That Defendant KPCB failed to promote her;

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3. That Paos protest was a substantial motivating factor for KPCBs failure to

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promote her;
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CASE NO. CGC-12-520719

4. That Pao was harmed; and

5. That Defendants conduct was a substantial factor in causing her harm.

Plaintiff will adduce evidence at trial that Plaintiff raised concerns about gender

4 discrimination and sexual harassment by KPCB partners numerous times, including with respect
5 to Ajit Nazre. In January 4, 2012, concerned that KPCB had not rectified ongoing bad behavior
6 in its treatment of women, Pao submitted a formal written complaint to KPCB Managing
7 Partners, which resulted in the Hirschfeld investigation. Pao stuck her neck out to protest what
8 she saw as a pervasive atmosphere of gender discrimination at KPCB, and it resulted in Plaintiff
9 receiving a negative performance review in July 2011 and being excluded from Fund XV.
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Fourth Cause of Action

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Following her termination by KPCB in October 2012, Pao amended her complaint to

12 include a cause of action for retaliatory termination in violation of the FEHA. As to this cause of
13 action, Pao must establish that she engaged in protected activity. This element is undisputed
14 here, as Pao filed a formal written complaint in January 2012 and this lawsuit in May 2012. Pao
15 must also show that Defendants termination of her in October 2012 was substantially motivated
16 by her complaints.
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The record will show unequivocally that KPCB terminated Plaintiff because of her

18 complaints and this lawsuit, which so troubled KPCB that Managing Partner John Doerr issued a
19 public statement around May 30, 2012, impugning Paos credibility and trumpeting the firms
20 alleged commitment to diversity. Plaintiff was then given a negative performance review in July
21 2011, as Defendant sought to create a paper trail for its actions. Soon thereafter, Plaintiff was
22 terminated, only months after she filed this case.
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Third Cause of Action

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Plaintiffs third cause of action is for failure to prevent discrimination and retaliation

25 under Government Code Section 12940(k). Plaintiff must prove the following elements (CACI
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1. That Pao was subjected to discrimination or retaliation in the course of employment;

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2. That KPCB failed to take all reasonable steps to prevent the discrimination or
retaliation;

3. That Pao was harmed; and

4. That Defendants failure to take reasonable steps to prevent discrimination or

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retaliation was a substantial factor in causing Paos harm.

As a matter of law, in order to prevail on this claim, Pao must prevail on a claim of

7 discrimination or retaliation. At trial, Pao will present a wide range of evidence establishing
8 Defendants, and its Managing Partners, callous disinterest in the rights of its female partners,
9 from failing to take steps to prevent harassment and retaliation by Ajit Nazre against Pao and
10 another female partner to the lack of a harassment policy and harassment training, even after
11 Ms. Pao requested it. Other relevant evidence includes Komisar giving Ms. Pao a book of erotic
12 poetry and drawings on Valentines Day. All of this evidence is probative both to the failure to
13 prevent claim and to gender discrimination in violation of the FEHA, as set forth in Plaintiffs
14 Opposition to Defendants Motion in Limine No. 1.
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16 DATED: February 17, 2015
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Respectfully submitted,
RUDY, EXELROD, ZIEFF & LOWE, LLP
LAWLESS & LAWLESS

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By: ________________________________
ALAN B. EXELROD
Attorneys for Plaintiff
ELLEN PAO

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CASE NO. CGC-12-520719