Silicon Valley’s next gender discrimination suit

Sep 27, 2012

Dan Primack was a senior editor at Fortune from 2010 to 2016. He was also the author of Term Sheet, Fortune's daily newsletter about deals and dealmakers.

FORTUNE -- Pantheon Ventures was sued earlier this month by a former employee named Carol Foster, who claimed that she was terminated due to her age and gender.

Some reporters rushed to compare this case to that of Ellen Pao vs. Kleiner Perkins, since that's what you get after typing "venture capital" and "gender discrimination" into Google. But these are two very, very different cases.

And it's not because Kleiner Perkins is an early-stage venture firm while Pantheon is a VC fund-of-funds.

In short: Foster's complaint is far less specific.

Before continuing, let me clearly state that I'm not claiming Pao is right and Foster is wrong. Or the opposite. Or that both are victims or that both are defamers. That's for a jury, or possibly an arbiter, to decide.

Instead, I'm saying that Pao's complaint -- if all of her claims are legit -- is a damning indictment of gender bias and outright harassment. It is, like many legal complaints, a compelling narrative (albeit one strongly disputed by the defendant, Kleiner Perkins).

Foster's suit, on the other hand, contains virtually no explicit examples of gender or age bias. Instead, it's mostly guilt by insinuation. Even if Pantheon stipulated to most every fact in Foster's complaint, it's unclear to me that the firm would have liability.

Here's a brief summary of the suit: Foster joined Pantheon in September 2008 to manage the firm's North American client services group. She soon would also assume some marketing (i.e., sales) responsibilities, following a reorganization.

Foster claims that, over time, her sales territory was gradually reduced -- with some of the better geographies going to younger, male colleagues. Then came early 2010, when Pantheon was sold by a unit of Northwestern Mutual to Affiliated Group Managers (agm). The move resulted in major changes to senior leadership, eventually culminating in the hiring of Kevin Albert as head of global product development. Albert previously had been with Elevation Partners and, before that, had run fund placement for Merrill Lynch (where he had actually been colleagues with Foster). He soon assumed Foster's managerial responsibilities, without Foster receiving additional territories on the sales side (despite her repeated requests).

Then came last December 14, when Foster went to meet with Albert for her performance review. She was terminated on the spot, being told that it was due to her sales performance. From the complaint:

"Based on information and belief, Plaintiff's employment was not terminated due to any alleged substandard performance on her part, but rather because of Plaintiff's gender, age and/or a combination of these protected class characteristics."

Foster also directs a defamation claim at Pantheon partner Susan Long McAndrews, for allegedly telling certain clients that Foster had been terminated for poor performance. Albert is also cited for making similar statements during a Pantheon staff meeting.

So, in short, here's Foster's argument: I kept losing sales opportunities to younger, male colleagues. And, since I believe my performance was not at issue, the only remaining explanation is that I'm a woman and too old (Foster is 48).

Unfortunately, she provides little evidence beyond circumstance. In fact, the only specific example of gender bias came after Foster had organized a "Women in Private Equity" event just weeks before her termination, after which Albert allegedly emailed to ask "How was the hen party?" Obviously an inappropriate and offensive comment, but also a bit too singular to assert a pattern.

Moreover, there are certain things Foster's complaint ignores or glosses over. For example, she notes that her replacement was "younger." But she doesn't mention that her replacement was also female. She doesn't disclose that a younger, male colleague was also terminated at the same time for performance issues. Or that McAndrews is a woman while Albert is significantly older than Foster, or that Albert manages two other women (out of four) who are older than Foster.

None of those facts are determinative, or mean that Foster really was fired for cause. But, at the same time, I was able to find them out before Pantheon has yet filed its formal response. My guess is that Pantheon will come with more specific counters, just as Kleiner Perkins did with Ellen Pao.

Kay Lucas, Foster's attorney, tells me that she hasn't yet unloaded all the arrows in her quiver, and that more information will be forthcoming. For example, she believes that the male colleague terminated at the same time as Foster received a more beneficial severance package, and that such discrepancies will be proven following discovery.

"The complaint is just the first step," Lucas said.

Perhaps, but it sounds a bit like a step into darkness -- hoping that there will be suitable ground ahead. At the very least, it's far less detailed than what Ellen Pao presented earlier this year.

What Foster really needs to show is that her performance was as good, or better, than those who Pantheon continues to employ. This complaint doesn't really broach such specifics, except to say that she raised more money for Pantheon's secondary funds than any other North American employee during her time with the firm and that she had the deepest rate of "market penetration" (i.e., had contacted the highest percentage of prospective investors in her territory).

Both clearly points in her favor, but also raise related questions. For example, how much money did she raise for Pantheon's funds-of-funds? And how much of that penetration was converted into sales (i.e., the metric by which most salespeople are ultimately judged).

Conversely, Pantheon will have to show that Foster under-performed her colleagues -- with hard data to back up its position. Unlike Ellen Pao, a relatively young early-stage investor whose performance is still a bit subjective, Carol Foster was a salesperson. Either she had adequate numbers or she didn't. If she did, then Pantheon would have to explain why this isn't a case of soft bias. If she didn't, then there really isn't a discrimination case.

As of this writing, the numbers are not in evidence.

Pantheon and the terminated male employee both declined to comment, while Foster did not respond to a voicemail left on her home phone.

Below is a copy of Foster's suit against Pantheon:

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