Eclectica: Mock Trial Mysteries: Employment Discrimination in the Spring of 2000: Witness Statements

SANDRA RUSSELL

PLAINTIFF WITNESS

You are an expert programmer in her mid-20s who used to work at Elcaro, Inc., an Internet company which recently had a very successful IPO (though after you'd already left, damn it). While you were at Elcaro, you were part of a six-person programming team supervised by a 50-year-old man named Jason Thomas, who was fired a few months before you left and who is now suing Elcaro for age discrimination. Your birthday is March 20, 1973, so you were 26 when Jason was fired.

Your role in this trial is to help rebut Elcaro's claims that Jason was incompetent and had been responsible for a program error which almost destroyed the company. You had added a feature without Jason being aware about it and without him telling another programmer, Grant Heller, about it, and your parts proved incompatible. You always felt a little guilty about it, but you had assumed the company just forgave everything when the program was fixed quickly enough that damage was minimized. In fact, the bad press - followed so quickly by the good - probably helped the company in the end.

You are also in the trial to show that Elcaro may have treated Jason differently from his younger replacement, namely, Grant. Grant got into trouble when you and two other programmers decided to leave the company all at once, throwing off his deadlines considerably. Despite this, Catherine Gordon has not fired Grant but allowed him to stay and to become quite wealthy (on paper) when the company went public. Sure, it isn't the same kind of screw-up, but you think that Gordon held Jason to a much higher standard than Grant, someone she's hung out with and is closer in age to.

Keep all this in mind as you are questioned and deposed by counsel, and feel free to flesh out the story in ways that are consistent with the storyline and to contact me with any questions you might have. Also, remember that your memory of events may differ from the other witnesses', and that you can "remember" things better with counsel's help, as long as nothing becomes inconsistent with your basic recollections. Do not lie unless specifically directed to in this fact pattern.

Background

You are originally from the mid-sized city of Kent, in upstate New York, where you were a bit of a hacker in your teenage years. You went to MIT and studied programming there and got a job at a Silicon Valley design firm after graduating. That was where you began to develop a sense of yourself as a female programmer; before it was about proving yourself among your peers, but now you kept on getting mistaken for an "area associate" (a.k.a. secretary) until you started wearing your Brass Rat ring (MIT's class ring) whenever you had a meeting or just around the company campus. You then decided to come to New York, mostly because you thought it'd be fun to get back to New York and "make it there." You got some good-paying, short-term work at the time when programmers like you were a very scarce resource, and then you wanted a slightly more stable job and came to Elcaro in December 1997, where you earned a $90,000 salary as a programmer on Jason Thomas's team.

Elcaro's main product/program is Elcaro itself, a new and improved kind of intelligent search engine, one which would learn from each user's searches and subsequent links to fine-tune its own search process. Elcaro is Oracle backwards.

Jason as Team Leader

Programmers at Elcaro are organized into teams of six programmers, with one of them a middle-manager who oversees you, coordinates things with you and the other programmers within your team and within the company, and runs interference with higher management. Your team leader was Jason Thomas, and the only other programmer on your team relevant here was Grant Heller, who was hired about the same time as you and who was about the same age as you.

You thought that Jason was doing a fine job as team leader. He kept you all motivated and on track. Maybe he didn't know every nuance of the most up-to-date programming, but he thought how you did, understood what you guys needed, and kept more or less on top of things. Besides, he'd been around at JCN (the once-major company) for years and then he went off on his own as a consultant so he must have some clue (Jason has never told you explicitly how or why he left the company, but you always believed that he'd left voluntarily and you should be surprised to hear otherwise). You never really hung out with Jason outside of work, and got to be friendly with him solely through working with him, and helping each other with difficult programming areas. You'd help him with understanding some concepts, and stayed late once every few weeks to walk him through some code he just didn't understand.

You did hang out with the other programmers on your team, like Grant, and you did once have a bit too much to drink at the company's weekly happy hour at Jobs', a local bar, and the two of you had a one-night stand which you deeply regretted the next morning. You both wanted to forget about it, and haven't talked about it since that morning, and few people at the company know that anything ever happened. You threatened to disembowel Grant if he ever revealed it, and you weren't really joking.

V2.0 was the big project your team was working on in the summer and fall of 1998, and as you neared the scheduled deadline of November 2, you worked long and massive hours. The schedule was too ambitious, you think. You ended up trouble-shooting and fiddling with some features, and you started upping this one feature which you thought wasn't exactly right. In retrospect, you got a little too creative. While this was happening, Jason was trying to keep a handle on things, but you figured he looked a little too overwhelmed with dealing with Gordon's deadlines as well as Grant's prima donna attitude, so you just did your own thing.

It turned out that your helpful feature wasn't compatible with some of Grant's work, something that wasn't discovered until two days after the program was ultimately released on November 9, 1998. The site crashed publicly to much embarrassment on November 11, 1998, even making David Letterman's Top Ten List and then it was time for damage control.

The day after the crash, Grant confronted you about the code you had added, and started yelling at you about it. You ended up crying a little and then you slapped him hard, something that few people know about. You didn't tell Jason about that last part, who came in shortly afterwards and tried talking down the situation.

Then came a massive week of undoing code, redoing code, and bit-by-bit quality control. Basically, 20-hour days with alternating sleep shifts, programmers pulled in from other teams, basically a "red-ball" crisis situation. Jason ran interference with Gordon and the other executives, gave you guys space to run and the support you needed, and let you do your thing.

Thankfully, it all paid off, and V2.1 got out there on November 20, 1998, fast enough that enough press and users were willing to give it a try and give the company credit for a turnaround. Catherine Gordon sent a congratulatory bottle of champagne with card on November 30. Even that Bulldog magazine took notice a few months later, sent some simple-minded reporter fresh out of journalism school to interview you and some other people, and turned out some drivel about the company "back from the brink." Nice photo of Gordon and Grant though you were a little surprised that Jason wasn't mentioned anywhere and that he apparently hadn't even known that there was an article or photographer until after they'd visited.

You still feel really bad about adding that additional feature into the program which almost caused the meltdown. But in any case, look, you thought it would help the program out. Not that big a deal. It even got more users. Get over it, already.

Talking with Catherine Gordon

Catherine Gordon e-mailed the entire company in early March 1999 about conducting a review in advance of the company's probable IPO (though nothing was for sure). She then e-mailed you about two weeks later about doing your talk over an early beer at Jobs', a nearby bar where the company does happy hours every Friday evening. You had hung out with her a few times in the past, and you both seemed to think that this would be more casual.

You talked to her about your place at the company, and how you liked how things were going. Not very definite about your plans, her plans, or how everyone fit into them. She also asked you what you thought about Jason Thomas, and if he was leading the team well in the wake of the 2.0 incident. Maybe his leadership was what was boring you? You said he was all right as far as bosses went, and you had no complaints. In retrospect you wonder if you could have been more positive about it; maybe if you'd taken the interview more seriously.

Finding out that Jason was fired

You got a company-wide e-mail on a Friday morning, April 9, 1999, that Grant would be taking over the team (though no specific date was mentioned), and that Elcaro wished Jason Thomas the best of luck in his new endeavors. You were surprised by the e-mail, but couldn't find Jason when you went to look for him, and just assumed that he had gotten out for something better or something easier. Even with management, the turnover rate was pretty high in this industry, and movement was nothing to get too shocked over. You were a little annoyed that you found out this way, and you told him that you looked for him later that day and asked him how he'd managed to escape another week working on Elcaro's next upgrade.

"I got fired," he told you. He then explained that Catherine Gordon had told him that the company couldn't afford to keep him around because of the 2.0 incident, and the risk that something like that would happen again, and that the company wouldn't be able to survive it again.

You told him that was bullshit. Accidents like that happen whenever there's too many people working on too many projects too fast, and it was her own unrealistic schedules and deadlines that made that happen.

"Maybe," he said, slightly unsure. He looked beaten. He looked old.

"Do you think it's because you're so old?" you asked after a long and awkward silence.

"I'm only 50," he said, but then seemed to think about it a little. "Damn it, do you really think that's it?"

You told him about how you'd been treated when you first started in Silicon Valley after graduating from MIT, and how you got a sense for these kinds of things. Your theory about Catherine Gordon was that just because she's done so much so fast, she's really impatient with people who haven't managed to conquer the world by the time they're 25, 30 if they're really slow. But she was lucky, and she had connections from way back and could schmooze her way into capital so easily. Of course she's managed to get a lot farther, because she started off with so much. You think it's admirable about what Jason Thomas managed to accomplish before Gordon fired him. He did well in the old days, paid his dues, was a good boss, and saved your ass in the 2.0 incident. That disaster could have happened to anyone, but it was him and the rest of the team that turned things around so well.

Staying with the company

You stayed with Elcaro for another few months, but then you were burned out and wanted something new. Also, you were sick of waiting for the IPO to happen and for you to get whatever shares Catherine Gordon would deign to grant you (nothing was ever written down, and you weren't sure how well you'd end up doing), and some MIT friends wanted you to get in on the ground floor with them on a new venture in biotechnology, where they could use your programming help.

What the hell. Elcaro wasn't fun anymore.

You talked with two other programmers about leaving, and all three of you left at the same time, on July 14, 1999, partly because you all wanted to, and also because it would really stick it to Grant. The other two just seemed kind of bored and ready to go. You felt kind of bad that it left him way behind deadline and scrounging for talent fast, but hey, there was little loyalty in this business and he could take it. From what you understand, he fell far behind schedule because of it, and it made him look bad because he had had no idea that the three of you had even been thinking of leaving, and it made his boasts about team unity look pretty hollow. He ended up begging and guilt-tripping the remaining three people to stay at least long enough for him to get by.

Your new venture is promising. You've already hired about 10 more people, and this could hit it big someday. Now that you think about it, if you're asked, you haven't hired anyone over 34. Not sure why. Just didn't. And you didn't even think about hiring Jason Thomas. No need for him, and besides, it'd be too weird hiring a friend under those circumstances.

Even though you're pretty happy with your new venture, you are somewhat annoyed with yourself that Elcaro's IPO managed to do so well, first because maybe you should have waited a few more months, and second because Grant has done so well because of it. He always lived beyond his means, and ran up some major credit-card bills dating a few women (after that one-night stand with you) who turned around and dumped him once they learned his pockets had limits, but now he actually has that money, at least on paper.

You do remember getting some kind of employee manual a few weeks before you left Elcaro. Just seemed like another step in the company becoming more corporate in the normal sense.