Black Davis Polk Lawyer Says ‘Institutional’ Bias Spurred Firing

A black former associate accusing Davis Polk & Wardwell LLP of bias and retaliation because of his race says the firm never had a problem with his job performance until he started complaining about its already acknowledged “institutional” discrimination, according to a new filing in New York federal court.

Davis Polk implemented a “multi-pronged antidiscrimination mechanism” in “direct response” to past incidents of racial bias that harmed and shortened the careers of black associates “year after year,” Kaloma Cardwell said in a Friday filing opposing the firm’s bid for partial dismissal of his lawsuit.

Those policies, practices, and mechanisms included measures to ensure racial equity in black associates’ assignment, performance reviews, and partner engagement, Cardwell said.

He sued the firm and seven of its partners Nov. 5 in the U.S. District Court for the Southern District of New York, asserting claims under Title VII of the 1964 Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law. He added an eighth partner as a defendant in a March 2 amended complaint that accused Davis Polk of “weaponizing” its job review against him because he complained about the very bias the anti-bias mechanism was designed to prevent.

The firm said that wasn’t so in its April 30 motion for partial dismissal that seeks to greatly narrow Cardwell’s claims. It invested “enormous time and effort” in Cardwell’s development as a lawyer and only fired him when it became clear after three years that he wasn’t up to the job, Davis Polk said.

But Cardwell countered that his performance was considered to be “on par with associates in his class” until he began to complain about disparate treatment he witnessed and experienced while working in Davis Polk’s mergers and acquisitions practice group.

He complained directly to managing partner Thomas Reid in January 2016 about “interpersonal and institutional discrimination” and the M&A head began “manipulating” the review process to make it appear he was actually behind schedule compared to other lawyers in his class, Cardwell said in his opposition to the dismissal motion.

He also challenges the firm’s various arguments in its dismissal motion that most of his claims are unexhausted, untimely, or legally nonviable.

The allegations in his amended complaint are based on the same conduct and events described in the charges he filed with federal and state job rights agencies and in his original court complaint. Davis Polk therefore received fair notice of all of his claims, Cardwell said.

The repeated manipulation and weaponizing of the job review process constituted a single continuous course of discrimination and many of the acts that were part of that course of activity occurred within his window for timely suing, he said.

The firm also “concealed” its discriminatory acts, equitably extending his time to sue, and the deadline for suing on his New York state and city law claims was tolled while those allegations were being investigated by state authorities, Cardwell said.

David Jeffries and Law Offices of Martin E. Restituyo PC represent Cardwell. Paul, Weiss, Rifkind, Wharton & Garrison LLP represents Davis Polk and the eight individual defendants.

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, notice of opposition to motion seeking partial dismissal 6/5/20.