Raped by the Players
The nasty hazards of life in the dot-com fast lane
The jury's verdict was succinct, but contradictory: Yes, Lisa Capece had been sexually assaulted, twice, at a party sponsored by executives of an Austin Internet company, and she had suffered in excess of $1 million in damages for those offenses. But no, she could not recover the damages -- the company could not be held responsible for the conduct of its senior managers, even during a party held at least in part to support the company's business. That was true even if -- as confirmed by court documents and testimony -- she is not the only woman to make similar allegations of untoward sexual conduct by company executives.
In December, Capece lost her suit against the Web-hosting and e-commerce company NaviSite Inc., despite being raped twice in a single evening by two of the company's managers. The managers had already escaped criminal charges -- at least partly due to an apparently incomplete investigation by Travis County Sheriff's deputies -- and Capece had reached a confidential settlement with her alleged assailants before her attorneys unsuccessfully took NaviSite to court for its failures to train or control its senior employees.
The case is now in the middle of post-verdict motions and will likely be appealed. However it finally turns out, Capece's story suggests a dark underside to the legendary Roaring Nineties, big-money lifestyle of Austin's silicon hills boom. Her lawsuit also raises a larger question: Is there such a thing as corporate rape?
The Capece case began as a simple dinner party -- not an event that the 40-year-old administrator imagined would land her in court 17 months later, testifying against a growing Internet company that grossed nearly $50 million in 2000. Certainly she never thought that by attending the party, hosted by a company executive, she would be putting herself in harm's way. But the party and its aftermath, Capece says, have changed her life forever, and she remains firmly resolved to pursue what she considers just retribution. "You're supposed to go back into life, knowing all this, and keep going. There are so many times I've just wanted to let [the case] go, just for the purpose of letting go. Will I? No, because I am afraid I wouldn't come back from it."
Party Party Weekend
What happened that night -- May 14, 2000 -- began unremarkably, Capece recalls, with a dinner invitation from Rene Ibenhard, head of the Austin office of NaviSite Inc. -- a Massachusetts-based Web-hosting and e-commerce company. The evening before, she said, NaviSite was one of the high tech hosts of an awards banquet in town -- the "Austin Players" party at the Renaissance hotel. The subsequent dinner party was to be an informal chance for several of the company's execs to gather at Ibenhard's southwest Austin home. Capece was not a NaviSite employee, but her friend Christopher Levy of San Diego was a new NaviSite executive visiting town for the weekend's events. During the six years they'd been friends, Capece had accompanied Levy to various business/ social functions, and she considered the Saturday night banquet and Sunday dinner party more of the same.
But soon after she arrived at Rene and Eileen Ibenhard's Oak Hill-area home, Capece said, the dinner party devolved into a horrifying night that she doesn't entirely remember -- and she's not alone. What she does remember was confirmed by several witnesses: Shortly after dinner Capece passed out while playing pool and had to be carried to an upstairs bedroom. Some time later, confused and frightened, Capece ran down the stairs and dashed out the door. But before she left, she said, she told the other guests that she had awakened in bed beneath Rene Ibenhard, who was in the process of raping her.
There was more. Capece would later learn that another NaviSite executive, Howard Brown, told authorities he too had sex with Capece, on the Ibenhards' front lawn, just before she'd passed out, and he'd carried her upstairs. Brown insists that, although he and Capece may have been intoxicated, the sex was consensual. Capece says she doesn't remember sex with Brown at all. She believes that she was not simply drunk but drugged and then assaulted, first by Brown and later by Ibenhard. And while Brown insisted his encounter with Capece was consensual, Ibenhard vehemently denies that he ever had any physical contact with Capece.
The jury apparently believed Capece -- but found that NaviSite could not be held responsible for the actions of Ibenhard and Brown. "Was [Ibenhard or Brown] acting in his capacity as a vice-principal of NaviSite?" the jury charge asked. The jurors answered "No." Capece's lawyers are preparing an appeal.
Since that May night, Capece has had to deal with the psychological and emotional aftereffects, as well as a legal whirlwind. Her journey to the courtroom was anything but direct, and her lawsuit has raised larger questions about corporate responsibility and companies that woo employees to the fast-paced high tech environment with promises of hard work, quick money, and fast times -- intentionally blurring the line between business and pleasure. Capece's lawyers charge that NaviSite and its parent company, CMGI, effectively sustained the behavior of Ibenhard and Brown by doing little or nothing to prevent it, and by condoning a corporate atmosphere in which such behavior was considered little more than business as usual.
NaviSite not only helped sponsor the 2000 Austin Players Banquet, but webcast it on www.navisite.com -- through the streaming media expertise of ClickHear Inc., the San Diego company acquired for nearly $4.7 million a few months earlier from Levy and his partners. By acquiring ClickHear, NaviSite hoped to boost its position in the Internet marketplace by bundling streaming media capacity into its sales package. What better place to show off this new relationship and product than at the Players event -- an awards banquet designed to showcase and promote Central Texas dot-com businesses? As NaviSite's senior director of technology, in charge of the company's new streaming media division, Levy directly supervised the Austin Players webcast.
Weekend With the Players
NaviSite's two top Austin-area executives -- Ibenhard, regional sales manager and director of NaviSite's Austin office, and his supervisor Brown, recently promoted to vice-president of the company's western sales division -- also attended the banquet. Following the ClickHear acquisition, Brown was in effect now Levy's boss -- a relationship that had not gotten off to a great start, after a phone call earlier that year ended in an argument. According to Levy, the Players weekend seemed a good opportunity to patch things up.
At the banquet, Levy was preoccupied with the webcast, so Ibenhard invited him to join Brown for dinner at Ibenhard's home the next day. Sunday evening Levy and Capece joined Brown, Ibenhard and his wife, and a newly hired NaviSite employee, "Jane Doe," whose first day at work as a sales account executive in the Austin office was to be the following morning, May 15. (Doe, now engaged in her own legal actions against NaviSite, has asked that her name remain confidential.) Levy, Capece, and Doe said they considered the dinner party simply an extension of the weekend's business events. Doe testified, "When you get invited to something like that and there's a vice-president of the company that's going to be there, it isn't politically correct not to go. ... [Ibenhard] was not the kind of person I would've socialized with outside of work."
(Ibenhard's wife, Eileen, helped host the party and was originally an individual defendant to the lawsuit filed by Capece. She presumably would have witnessed some of the events alleged to have taken place at her home. In an out-of-court settlement, she was removed from the lawsuit and did not testify at the December trial. According to her attorney, Sheryl Rasmus, Eileen maintains that Capece's allegations are completely false. "Absolutely," Rasmus said. "As it was set out in court documents, her husband was within sight of [Eileen] the whole evening, and nothing happened.")
By all accounts, the party began well, as the guests chatted together by the backyard pool. Doe and Levy discussed streaming media, and Capece and Doe talked about Doe's relocating to Austin from Dallas -- good neighborhoods, housing options. Ibenhard had invited the guests to bring swimsuits, and he made at least two pitchers of frozen margaritas, and kept his guests' glasses filled. But Doe and Capece testified that even before dinner was served some time later -- no one seems to have a clear memory of the timing of the evening's events -- their memories of the party began to blur. Not long after dinner was over, Capece was playing pool with Brown in the Ibenhard's garage when she passed out, and was carried by Brown to a guest bedroom on the second floor of the couple's home. "Lisa [Capece] sat down and said she wasn't feeling well," Brown said in his videotaped testimony. Although he said he wasn't sure "what the definition of passed out" was, he said he did carry Capece upstairs before returning to the kitchen to do more liquor shots with Ibenhard.
But after the party, Brown would tell NaviSite's investigators that he and Capece had sex on the lawn before he carried her upstairs. He acknowledged she wasn't coherent, but otherwise couldn't explain why Capece says she doesn't remember their supposedly consensual encounter. No one could confirm Brown's recollection, since the other guests had been inside the main house while Brown and Capece were in the Ibenhards' garage.
From that point onward, the memories of the participants diverge: They were or were not drinking expensive whiskey, they were or were not naked in a hot tub, there was or was not a fair amount of "groping" and "fondling" going on among various partygoers. Each of the men recalled those events differently, and in tearful testimony, Doe claimed that she did not remember any of this at all.
All but Brown agree on what ended the festivities: Capece appeared at the top of the stairs, partially clothed, and rushed down the stairs and to the door. She told the group that just moments before, she had wakened on the guest room bed with Ibenhard on top of her. "Lisa was coming down the stairs and [Doe] was at the top [of the stairs] naked, covering herself, and [Brown] and [Ibenhard] were both totally naked at the top of the stairs," Levy told the court. He and Eileen, he said, had been sitting in the living room, fully clothed and talking, when the commotion occurred.
Levy says he followed Capece outside to hear her story, then called Ibenhard outside and confronted him. "I said, 'Rene, what the fuck is going on here?'" Levy testified. "'Why is Lisa telling me she was raped?'" As he would in court, Ibenhard hotly denied that he had done anything. "Rene said, 'No. Fuck no,'" Levy testified. "He was very defensive, as was I. He was being very aggressive, coming toward me." While Levy and Ibenhard faced off, Levy testified, Howard Brown stood in the doorway naked and apparently puzzled, addressing Ibenhard: "I thought you said it would be cool."
At trial, Brown denied any such conversation and said he didn't remember there ever being any commotion of any kind. Ibenhard said that when Capece originally made her way downstairs he was naked, "fast asleep" in his own bedroom, and that it was Eileen who came to wake him, telling him that Capece was accusing him of rape. In the end, Levy went outside, told Capece to get into her car, drive to the end of the block, and wait for him.
After Capece drove off, Levy said, he tried to get back into the house, but was refused entry by the Ibenhards. Levy rejoined Capece down the street, where they talked briefly about what to do, and at 1:43am ended up calling the police. Not long afterward, two deputies from the Travis County Sheriff's Office arrived and were soon joined by a Victim's Assistance Unit counselor. After some discussion, the whole group drove in a convoy to St. David's Hospital, where Capece was given a rape exam.
According to the court testimony of St. David's sexual assault nurse Jackie Switzer, semen from one male was found inside Capece -- along with a tampon, shoved up against her cervix. The tampon, she said, had to be removed with large forceps. No DNA evidence identifying the source of the semen was introduced in court.
For some reason, neither of the sheriff's deputies ever went to the Ibenhard residence that night to interview any of the witnesses. Sheriff's Office Detective Chris Orton, assigned to investigate the case, says he doesn't know why. "They should have, it would've helped me out immensely," Orton said. "We get messes like that every once in a while." Yet according to Orton's own report, neither did he interview Ibenhard or Brown in the months that followed the May 14 dinner party. And instead of charging Ibenhard or Brown with sexual assault, Orton chose to send the case to the grand jury. "Sometimes I'd rather just have the grand jury sort it out," he said. "That kind of gets it off my back."
Sheriff's Office spokesman Roger Wade said that it is not "extremely unusual" that the deputies responding to Capece's call did not go to the Ibenhards' to interview potential suspects/witnesses. While he said he could not speak for the motivation of the specific deputies who took the call, he said that various factors, including how many other emergency calls were pending, could influence the deputies' decision. Indeed, he said, the deputies' first concern would be to make sure the victim is safe, and have a detective follow up with the witnesses later. "In this particular case [that procedure] backfired," he said, because by the time Orton was able to follow up, all the witnesses already had legal counsel, so it's understandable the detective would defer to the grand jury. "There are those cases where you run into roadblocks and can't get the information you need," Wade said. "But the grand jury has the subpoena power."
Asked about the limited extent of his investigation, Orton seemed skeptical of Capece's motivation for making a rape complaint. "It seems that someone was interested more in something else other than people going to jail," he said. "I don't know, but there are these things called deep pockets."
But the decision not to go to the house that night, said Capece's attorney Geoff Weisbart, contributed to his client's legal difficulties. "I'm just not sure there was a dogged pursuit from their office," he said.
Shortly after the party, Levy began receiving messages on his cell phone from Rene Ibenhard. Weisbart told the jury he believes Ibenhard was trying to establish whether or not Levy would support Capece's allegations, by using a thinly veiled threat that Ibenhard could make or break ClickHear's new relationship with NaviSite. "Well, Christopher," began the last of several cryptic messages that, according to trial testimony, Ibenhard left that evening, "obviously you don't want to answer the phone, so fuck you. I could've made this work for you, but fuck you. Ciao baby."
Ibenhard and Brown would later suggest, during NaviSite's internal investigation and then in court documents, that they believed Levy had brought Capece to the party for the benefit of his new associates -- or else that Levy himself had drugged her in order to set them up as assailants. If that was the case, they were apparently easy pickings.
Ibenhard's attorney, David Gottfried, declined to be interviewed for this article, saying the documents speak for themselves. "Ibenhard adamantly denies having any sexual contact with [Capece]," Gottfried wrote in court filings. Instead, he asserted, Levy "with a vindictive and retaliatory motive engaged in a plan to entangle Ibenhard and [Brown] in a scheme to assure their dismissal from NaviSite." (Levy denied the charge, and apparently the jury didn't buy it either.) In a phone conversation between Ibenhard and Brown (taped by Ibenhard without Brown's knowledge), Ibenhard tried to get Brown to admit that he had told Ibenhard that Capece worked in a "massage parlor." (Capece is in fact the admissions director for the Lauterstein-Conway School of Massage, a legitimate, state-licensed business.) During the same phone call, Brown asked Ibenhard, "Is she a hooker or not?"
In court Weisbart asked Ibenhard about the conversation. "Isn't it true that you and Howard Brown thought [Capece] was a prostitute and that's why you and [Brown] had sex with her?" Weisbart asked Ibenhard. "First, I did not have sex with her," Ibenhard responded. "Second, I don't know what [Brown] thought."
The day after the party, Detective Orton began trying to determine exactly what occurred at the Ibenhards' the previous evening. It would not be easy. All the principals quickly hired attorneys. NaviSite, through its parent company, CMGI, obtained the services of Kevin Sadler of Baker Botts; Levy retained Butch Hayes of Fulbright & Jaworski; and two days later, Capece hired Geoff Weisbart of the Austin firm Hance, Scarborough, Wright, Ginsberg & Bursilow. Brown, Ibenhard, and Ibenhard's wife, Eileen, each retained their own legal counsel. The handful of high-powered lawyers created a confusing scrum, and in the aftermath, Jane Doe's current attorney, Lin Blansit, suggests that NaviSite lawyer Sadler was, from the beginning, working with a conflict, because he was in effect representing both the company and at least one employee with a potential claim against the company: Jane Doe.
Capece told Orton that Doe was also at the Ibenhards' and that she believed Doe had also been assaulted. On Tuesday, May 17, Orton contacted Doe and suggested she get a rape test. Doe "told me that she had been fondled, but that was all," Orton recorded. "However, I asked her if she remembered all the events of the evening, and she told me that she didn't. She also told me that she believed that she had been drugged." Doe was then in Houston on a business trip for NaviSite, Orton noted, and he asked that she make arrangements to meet with him when she returned to Austin.
In the intervening weeks, Doe became evasive. She didn't want to be involved with the case; she didn't see anything, she told Orton, and had nothing to say. "I could tell that she was worried about repercussions at work if she cooperated with me," he wrote. Orton was also talking with Kevin Sadler, who said he was handling NaviSite's internal investigation. Sadler said he would talk to Doe but, Orton wrote, "wouldn't be able to force her to cooperate."
A month later, Doe finally met with Orton -- and she was accompanied by Sadler. As Blansit sees it (Doe hired Blansit in early 2001, when she became convinced that the company had retaliated against her), Sadler's dual role in that interview was at best unethical, and any statement derived from those circumstances was legally worthless. "Kevin Sadler went down there with [Doe], and she thought he was there representing her interest," Blansit said. "That is unethical. She thought [NaviSite] was providing representation for her to help [her] deal with the Sheriff's Office, and she was relying on him."
Blansit believes that for Sadler, Doe's interests inevitably took a back seat to NaviSite's corporate concerns. The statement Doe gave to Orton on June 16, 2000, differed from statements she had previously made to the detective, as well as from statements she made to NaviSite's Human Resources personnel and statements she made during trial.
"She gave statements [to Orton] that said she didn't know or didn't recall [events from the party]," Blansit said. "After they came out, [the statements read] that she knew that [those events] definitely did not happen. But she never would've said that." At least, Blansit said, Doe would've made it clear that she did not remember everything that happened at the party.
Blansit admits that her client was reluctant to come forward at all. "It's difficult," she said. "You open yourself up to further humiliation." But Blansit insists that Sadler's initial role in the investigation served her client badly from a legal perspective, and also served to humiliate her. "She was definitely under the influence of NaviSite and their attorney," she said. "He was encouraging her to say those things because the company didn't want the lawsuit." Sadler declined to be interviewed for this article. "Because [the case is] still in litigation and a [final] judgment has not been signed [by the judge], I cannot say anything," he said. Detective Orton says he took Sadler's presence during Doe's interview at face value: "I only have to assume that he's there," Orton said, "representing her best interests."
For whatever reasons, Capece was the only witness before the grand jury, and in October 2000 the jury no-billed the case. Despite Doe's initial statements to Orton, she was never subpoenaed to testify to the grand jury regarding the sexual assault charges against Ibenhard and Brown. "I don't know why they didn't," Orton said. "That was the [District Attorney's] decision, not mine." Thus, the company's version of the episode -- that the whole event was simply a private party that got a little out of hand -- appears to have legally prevailed from the moment Capece and Levy left the Ibenhards'.
Sheriff's office spokesman Roger Wade says the case could still be presented to the grand jury -- provided there is some new information the jury hasn't heard. Blansit said she expects to provide the "new information": Doe's testimony.
Geoff Weisbart suspects that the reason Capece's case never made it into a criminal courtroom was because of the way that the investigation was handled. "This is a tragedy," he said. "[Capece] was caught in the middle of management self-interest, where everybody is running for cover, and the victims got lost. The people that were hurt never had much of a chance."
Following the company's brief internal investigation, NaviSite fired Brown and Ibenhard on May 23, 2000. As far as NaviSite officials were concerned, that should have been the end of the matter.
Vice and Vice-Principals
But Capece's lawyers argued that NaviSite and parent company CMGI were also liable for negligence, because the companies did nothing to prevent such behavior at an official company function, and in effect condoned it. In July of 2000, Capece filed a civil suit against the Ibenhards, Brown, NaviSite Inc., and CMGI for assault and battery, intentional infliction of emotional distress, invasion of privacy, and various forms of negligence. The Ibenhards and Brown settled with Capece in September of 2001. CMGI was also subsequently dropped as a defendant.
According to Weisbart and his co-counsel Ellen Yeager, had the event not been NaviSite-related, Levy, Capece, and Doe wouldn't have even been there. The lawyers further charge that NaviSite acted with negligence not only by hiring Ibenhard -- who, they contend, lied on his résumé -- but also by failing sufficiently to train or supervise the two executives. Some of the argument turns on company policies concerning sexual harassment.
NaviSite, a subsidiary of the Web development company CMGI, did not have a sexual harassment policy of its own, although in theory employees could turn to the law in Massachusetts (home to CMGI) for redress. Capece was not a NaviSite employee, but her lawyers argue that the absence of clearly defined corporate principles regarding sexual harassment demonstrated, instead, a permissive corporate culture concerning harassment. "[NaviSite] failed to supervise and train these guys," Weisbart said.
By contrast, Doe was an employee of the company, and for her the lack of a clear policy served to isolate her from help, argues Doe's attorney Blansit. NaviSite "would hand new employees a sexual harassment policy that said it was CMGI's policy," Blansit said. "[The policy read] that you should call a CMGI human resources person -- unknown to these people. Or, it said you could file a complaint with the Massachusetts [Equal Employment Opportunity Commission]. So it was all out of state."
Moreover, Weisbart and Blansit say, the company also failed to conduct any training regarding sexual harassment. NaviSite says it sponsored one daylong training session in Massachusetts at the beginning of 2000, during which sexual harassment policies were discussed. Responded Blansit: "The presentation had, maybe, two slides out of a whole Power Point presentation," she said. "This was out of four days of training. Two slides and nobody remembers them at all."
The lack of a clear policy is important to Weisbart's case, because there are charges that both Ibenhard and Brown had acted inappropriately with female employees in the past. If NaviSite had ever firmly enforced a set of corporate values, Weisbart says, there is a good chance Capece never would have been put in harm's way. "NaviSite failed to ensure that its policies were being effectively enforced, or even followed by its upper-level managers," Weisbart told the court. "This failure to ensure compliance led to an atmosphere within NaviSite that permitted ... employees and senior management to encourage sexually charged conduct and excessive drinking at dinner parties, all in the name of business." In his testimony, Brown appeared to confirm at least in part Weisbart's charge of corporate negligence. Asked by Weisbart whether or not he believed it would be necessary to report an allegation of sexual assault by a NaviSite employee against a company executive -- such as Ibenhard -- Brown said no. "[Ibenhard] said it was all made up, so I didn't feel a need to report it," he said.
But in any case, Capece was never an employee of NaviSite, and so was not expressly covered by corporate policy, good or bad. That was one reason that the case presented before Judge Scott Jenkins focused on a single issue: Were Ibenhard and Brown acting in their official capacity as NaviSite executives when the alleged sexual assaults took place?
Under a pretrial ruling by Judge John Dietz, Ibenhard and Brown -- as potential "vice-principals" of NaviSite -- could be determined by the court to have acted that night as de facto representatives of the company. Weisbart would have to convince a jury that not only did the sexual assaults occur, but that they occurred in an environment in which Ibenhard and Brown's positions as high-level executives influenced the evening's events. Weisbart believed he could prove NaviSite's liability for its executives' actions. "The example that I used in court is that this is not like a faucet," he said. "You can't turn [your official capacity] on and off. One minute you are promoting yourself as a company and then suddenly you're not."
At trial, Weisbart asked Ibenhard about other NaviSite functions he had attended in the past. Were they business/social events, and was this behavior encouraged by the company? "Yes," Ibenhard responded. And was the Sunday night dinner organized in the same vein? "I talked to Howard [Brown] about it, and he thought it would be a good idea," Ibenhard said. "[It was to be] social, and I'd like to bring up some business." Weisbart asked much the same of Brown, who conceded it was important to "conduct himself in an above-board manner" in front of other employees in order to set a good example.
Business or social, dinner at the Ibenhards' was hardly "above board." Ibenhard had a difficult time keeping his story straight while on the stand -- several times contradicting his sworn deposition. He did admit that he and Brown removed their clothes for a dip in the backyard hot tub while Doe and Levy sat nearby. After first responding that he had taken off his pants because he didn't want to get his wallet wet, Ibenhard conceded that he felt pressure to conform to the standard Brown, his boss, had set. That admission by Ibenhard, Weisbart argued, proved that the two execs were acting in their capacity as executives during the dinner party, and NaviSite should bear some responsibility for the actions taken in the company's name. "That's one reason we worked so hard to prove why [Ibenhard] dropped his pants," Weisbart said afterward. "Brown had to have been there in his official capacity to [be able] to exert the pressure on [Ibenhard] to drop his pants."
In response, Kevin Sadler never directly contradicted Capece's claim that she had been assaulted. Rather, he focused solely on whether or not NaviSite had sanctioned the event. Was there any Power Point presentation during the party? Did anyone call the group "to order," as if it were a meeting? No, the witnesses repeatedly replied. And, did Ibenhard ever submit receipts to NaviSite, seeking reimbursement for dinner-party expenses? No, Ibenhard replied. "It's an exaggeration to say that this [dinner party] had anything to do with business," Sadler told the jury. "People have the right to meet in the privacy of their own home. They don't have the right to do something bad, but is that the responsibility of the company?"
The jury agreed that "something bad" had happened at the Ibenhard's that night -- but concurred with Sadler that NaviSite was not responsible.
"Could this company have prevented what happened in Lisa [Capece's] case?" asks Louise Fitzgerald, a psychology and women's studies professor at the University of Illinois, who testified at Capece's trial and has done extensive research on sexual assault in the workplace. "It's my belief that [NaviSite] screwed up a long time ago." Fitzgerald not only points to the lack of sexual harassment policies, but also to company-sponsored events marked by alcohol consumption -- events that the witnesses also described in court. "That kind of modeling [of behaviors] sends a message" to other employees about what kind of behavior will be tolerated by the company, she said. "My take on it is that the high tech firms we know as having a culture that is, one, very hard on women and, two, very macho," Fitzgerald said. "And that's why this thing about 'play hard' merges and blurs the boundaries and does not set up a professional image or template for how to behave. It almost holds out the promise of entertainment or pleasure and self-indulgence as a part of the reward for employment," she continued. "It also inculcates that for a norm of behavior. But this is not a frat party, it's a workplace."
Jan Salisbury, a corporate consultant who has been working with these issues for 21 years, agrees. "Companies that are very successful [with these issues], their leadership models respectable behavior and they speak up immediately -- they don't wait for a complaint [to be filed or act] based on whether [the complaint comes from] a protected class of people," she said.
The answer, say Salisbury and Fitzgerald, is fairly simple: zero-tolerance policies that impose clear and swift sanctions on employees who violate the corporate values. Salisbury concluded, "We have to go beyond the law to be really proactive," she said. "You find that if there is a much higher standard, the bad stuff doesn't happen."
The allegations against Ibenhard and Brown, of course, go far beyond drunken sexual boorishness, dirty party jokes, or even rude propositions. Capece and Doe (and at least one other former NaviSite employee who subsequently reported to NaviSite that Ibenhard had assaulted her at two other NaviSite-sponsored events) say they believe they were intentionally drugged into semi-consciousness and assaulted by one or more company executives.
Breaking All the Rules
Are these circumstances unique to these particular dot-com players or to NaviSite? According to Fitzgerald, the answer is no. "I don't want to give the impression that it's happening in every office in Austin, but it is happening," she said. "It happens all the time." Doe testified that when she interviewed with Brown for her new job, he told her in no uncertain terms that working for NaviSite meant "work hard, play hard."
Several local high tech companies' industrial recruitment videos share that attitude: Employees are shown partying, on company time, with company-provided booze. The high times, the videos make clear, are a company recruitment tool. Several other Austin high tech professionals confirmed Fitzgerald's assertion that "things happen." Said one high techer: "Things happen all the time, and when they do, the legal sweepers come in and it all ends up under the rug."
Lisa Capece is tired of battling NaviSite, all in an attempt, she says, to get the company to apologize. "It's about the misuse of power and influence," she said. "And through some ill fate, I ended up in the wrong place at the wrong time." Blansit still has two Equal Employment Opportunity Commission charges pending against NaviSite -- one brought by Doe, and the other by the only other female employee from NaviSite's Austin office. Both women have made sexual harassment claims against the company stemming from alleged assaults by Ibenhard, and both women claim NaviSite retaliated against them for coming forward. "Just a little compassion [from NaviSite] for what those people had been through would've saved them thousands in legal fees," Blansit said, "and would've made the world a little better place."
NaviSite closed its Austin office late last year, but apparently not because business was bad. Since the time of the company's Nov. 11, 2000 federal Securities and Exchange Commission filings, it opened two new offices -- one in Atlanta and one in San Francisco. With an infusion of nearly $65 million in financing last October, the company -- at least publicly -- seems very optimistic about its future. "Going forward, we are laser focused on further strengthening our financials, extending our commitment to operational excellence, and laying the groundwork for healthy growth going forward," said NaviSite president and CEO Tricia Gilligan in a recent press release.
Capece has her own focus, and believes she has not gotten a fair shake, neither from NaviSite nor the courts. "You're talking about a company that, to this day has not said, 'We're sorry this happened. We know our employees were involved, and we're sorry,'" she said. "This has all been a wicked game of corporate behavior." Capece may get yet another day in court. Weisbart said he feels fairly confident that the case will wind up in front of a jury again. "I feel like we should've won, and we are appealing the original decision that stripped this case to the bare bones," he said. "Ultimately this is not over. ... Just call this the first chapter."