Liz Gannes

Recent Posts by Liz Gannes

Ellen Pao’s Lawyer: Kleiner Perkins Firing Was Retaliation

Ellen Pao, the Kleiner Perkins Caufield & Byers venture capitalist who is suing the firm for gender discrimination, will now add termination for the purposes of retaliation to her claims, said her lawyer on Wednesday.

On Tuesday, Pao disclosed on Quora that she had been asked to leave Kleiner Perkins.

The VC firm responded that Pao had not been fired, but is instead “transitioning” out of her job.

What does that actually mean? What’s happening is that Kleiner Perkins asked Pao to cease her duties but is keeping her on payroll at the moment, according to her attorney, Alan Exelrod of Rudy, Exelrod, Zieff & Lowe.

“On Monday, Ellen was told to clean out her office that day, not come back to the office, turn in her computer, have no access to documents, and essentially stop doing work because her job would be ending in the future,” he said. “She had 30 days to transition off corporate boards.”

Exelrod said that Pao is still on the KP payroll, but refused to disclose what date she was given for her last paycheck. “She’s looking for work,” he said. “The essence of what they told her is, ‘Don’t come back, you’re not working here any more, you’re gone.'”

Update: Kleiner sent a new statement that responds to Exelrod’s comments.

Kleiner’s actions were not retaliatory. The firm informed Ellen Pao that it would be separating her employment as the result of longstanding, documented performance issues and not because of the litigation or because she is a woman. The firm was also generous and fair in its offer to help her transition her career in ways that are inconsistent with retaliatory conduct. They were willing to keep her on the payroll as an employee for 6 months and to vest in venture funds, and then pay her severance, all without asking her to release her pending legal claims which is entirely inconsistent with an intent to retaliate. Her lawyer may believe he has additional legal claims based on retaliation. Their view seems to be that even existing performance problems prohibit an employer from taking action once an employee has sued. We believe otherwise.

So it seems that Kleiner Perkins and Pao essentially agree on what’s happening, but differ on what to call it. What really matters, though, is how this affects the lawsuit.

“We view this as retaliation for her raising these issues and filing the lawsuit, and because she’s a woman and the circumstances of the situation,” Exelrod said.

Kleiner Perkins had previously said that Pao’s performance was the reason she had not been promoted at the firm, rather than discrimination.

“She’s performed well there for many years, and anything they say about her performance is just a pretext for their retaliatory and discriminatory motives,” Exelrod said.

The case is currently headed to an appeals court, so Kleiner Perkins can argue again that it should be arbitrated instead of litigated. Exelrod said he and Pao will file a charge of discrimination with the State of California Department of Fair Employment and Housing, and that once that arbitration issue is resolved, they plan to add the issue of termination to the existing lawsuit.

Here is Kleiner Perkins’ full statement from the wee hours this morning:

Ms. Pao’s Quora post is misleading. She remains an employee of the firm. Because of long standing issues having no relationship or bearing on the litigation, Kleiner approached Ms. Pao to facilitate her transition, over an extended period of time, out of the firm. The proposed terms, that did not require Ms. Pao to waive any legal rights or claims, are generous, fair and intended to support Ms. Pao in a successful career transition.

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