Pao faces tough court if she appeals Kleiner bias lawsuit

By Dan Levine SAN FRANCISCO (Reuters) - Ellen Pao faces an uphill battle should she choose to appeal her defeat last week in a gender discrimination lawsuit against former employer Kleiner, Perkins, Caufield & Byers, the Silicon Valley venture capital firm. Not only did a San Francisco Superior Court judge side with Pao on some key evidentiary disputes in the run-up to trial, but employers have been highly successful litigating in the California appeals court where Pao's case would land. According to Westlaw data, out of 49 decisions involving discrimination and retaliation over the past two years, California's First District Court of Appeal affirmed 26 of 31 cases where the employer won in the trial court, or 84 percent. Only five cases were reversed. Conversely, the court - which covers San Francisco and 11 other Northern California counties - handed victory to employers in more than half of the cases they lost in the lower courts, reversing 10 of 18 cases. Pao's lawsuit helped spark a wide-ranging debate about the treatment of women in Silicon Valley, which has continued after a jury last Friday decided she had not proved Kleiner broke the law when it passed her over for promotion. Pao has not said whether she plans to appeal. Legal experts said that may depend on whether Kleiner plans to seek reimbursement for litigation costs from Pao, such as deposition expenses and expert witness fees, which could run into the six figures. Victorious employers often offer to withdraw their costs bid if the plaintiff agrees to forgo an appeal, labor attorneys said. A Kleiner spokeswoman declined to comment. Any request for reimbursement of costs would likely be filed in the next three weeks. Pao's attorney Alan Exelrod, who has about two months to file an appeal, declined to comment on whether such a move was likely. Resurrecting a case through the appellate system is always challenging. In 915 cases involving discrimination and retaliation over the past five years, California appellate courts have affirmed the lower court result 66 percent of the time, according to Westlaw data. Should Pao lose at the First District, she could appeal to the California Supreme Court, though the high court opts to hear very few of the cases it reviews. Beyond the numbers, San Francisco Superior Court Judge Harold Kahn made some important rulings in Pao's favor, thus removing them as grounds for appeal. Kahn, for instance, allowed former Kleiner partner Trae Vassallo to testify over the firm's fierce objections. Vassallo provided explosive testimony about a male Kleiner partner showing up at her hotel room door in a bathrobe, holding a glass of wine. Pao had accused the same partner of lying to her in order to start an affair, and then retaliating against her after she ended it. Kahn also forbid Kleiner from introducing evidence that Pao's husband had financial problems, and from asking Pao whether that motivated her lawsuit. One significant ruling that went against Pao was when her lawyers sought to compare her performance reviews with the reviews of other women partners, aiming to prove a pattern of discrimination. A judge last year ruled that Kleiner did not have to disclose the performance reviews of other women partners. After the verdict, three jurors told Reuters they had focused on Pao's increasingly negative performance reviews, which undermined her argument that she deserved to be promoted. The ruling on the performance reviews would likely play a major part in any Pao appeal, though the legal standard for overturning a pretrial discovery order is very high, said Mark Schickman, a San Francisco employment attorney who primarily represents companies. "It would be the greatest long shot," Schickman said. (Reporting by Dan Levine; Editing by Peter Henderson and Tiffany Wu)