Black Davis Polk Lawyer Says Bias, Retaliation Claims Plausible

A Black attorney suing Davis Polk & Wardwell LLP and several partners told a Manhattan federal court that his allegations regarding the firm’s discriminatory performance review system and retaliation for his bias complaints are plausible and shouldn’t be dismissed.

Discovery in the case has, in fact, only substantiated his allegations, Kaloma Cardwell said Wednesday in a filing with the U.S. District Court for the Southern District of New York. The filing opposes a Dec. 11 partial motion to dismiss by Davis Polk, managing partner Thomas Reid, and corporate/mergers and acquisitions group partners John Bick, William Chudd, Sophia Hudson, Harold Birnbaum, Daniel Brass, Brian Wolfe, and John Butler.

That includes evidence that in August 2017 a different Davis Polk partner entrusted him to advise firm “clients Morgan Stanley and Credit Suisse in connection with a SEC-regulated $10.4 billion Deal,” Cardwell said. The trust that showed in him at that point in his Davis Polk career “flies in the face” of the firm’s charge that “he was a poor performer for the three-year period spanning 2014 to 2017,” Cardwell said.

Cardwell filed the lawsuit in November 2019, charging that the racial bias he faced in his four years with Davis Polk included rigged performance review processes and other workplace systems. He complained to the firm and federal and state fair employment agencies, which led to him being denied work and ultimately fired, he said.

The motion for partial dismissal asserted that Cardwell’s second amended complaint failed to cure deficiencies previously identified by the court in some of his allegations against some of the partners and improperly added new allegations and a novel legal theory.

“Defendants largely deployed three strategies in seeking to dismiss,” including advocating for premature rulings and pleading standards “that, if adopted as precedent, would significantly narrow everyday plaintiffs’ and workers’ ability” to sue for job discrimination, according to Cardwell’s brief in opposition.

The defendants also “simply ignore” the second amended complaint’s allegations, he said.

And they made “various attempts” to challenge his allegations as implausible, Cardwell said.

But documents he has seen for the first time during discovery “confirm what he has alleged all along,” that he was treated unequally because he is Black and because he complained about the bias, he said.

Discovery has shown, among other things, that within weeks weeks of entrusting him to work on the $10.4 billion deal, the “same partner submitted” a review of his performance review that was created about a month after he filed his Equal Employment Opportunity Commission charge, Cardwell said. The review made it seem like he “was a Black attorney who could barely read and write,” Cardwell said.

His amended suit sufficiently pleads the elements of the challenged claims and the court should allow him to continue gathering information through discovery to further support his allegations, Cardwell said.

David Jeffries of New York represents Cardwell. Paul, Weiss, Rifkind, Wharton & Garrison LLP represents Davis Polk and the individual defendants.

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, opposition to motion to dismiss in part 1/13/21.