Black Davis Polk Lawyer Sees Harassment, Some Other Claims Nixed

A Black former associate accusing Davis Polk & Wardwell LLP of race discrimination and related retaliation is unable to pursue most of his claims against certain partners in the firm’s corporate/M&A group or his hostile environment claims, the Southern District of New York ruled Monday.

Kaloma Cardwell sued in November 2019. He said the race-based bias culminated in his wrongful discharge after four years as an associate in the firm’s New York office.

The discrimination was a result of Davis Polk having rigged its workplace systems, Cardwell said. He also accused the firm of “unlawfully weaponizing” its evaluation and performance-review processes against him. The bias was so severe it caused Cardwell to bill just two hours per month for three consecutive months at one point, according to the suit.

The suit also named corporate/mergers and acquisitions group partners John Bick, William Chudd, Sophia Hudson, Harold Birnbaum, Daniel Brass, Brian Wolfe, and John Butler as individual defendants, as well as Davis Polk managing partner Thomas Reid.

Cardwell asserts a litany of claims, including racial harassment under Title VII of the 1964 Civil Rights Act; race discrimination, retaliation, and harassment under 42 U.S.C. §1981; aiding and abetting race discrimination, retaliation, and harassment under the New York State Human Rights Law; and aiding and abetting race discrimination and retaliation under the New York City Human Rights Law.

But the suit failed to describe how the harassment Cardwell allegedly experienced was objectively hostile enough to violate federal, state, or city law, the U.S. District Court for the Southern District of New York said, dismissing those claims against all of the defendants.

That Cardwell was assigned less work in an effort to harass him could be part of a hostile work environment, but alone it was insufficient to be actionable, Judge Gregory H. Woods said.

That partners allegedly ignored Cardwell in the hallways was “insignificant,” the judge said. And the allegation that some partners tried to get Cardwell to assume blame for things that weren’t his fault was likewise “too vague” to support his harassment claims, Woods said.

The court dismissed all claims against Chudd, Hudson, Birnbaum, Brass, Wolfe, and Butler, except for retaliation claims against Birnbaum, Brass, and Wolfe related to Cardwell’s termination.

The suit doesn’t include facts raising an inference that those six partners, collectively or individually, harbored a discriminatory animus against Cardwell, the court said in dismissing the discrimination and aiding-and-abetting claims against them. That Cardwell is Black and was subjected to adverse employment actions that White associates allegedly weren’t failed to state a viable claim, the court said.

Six of the 12 alleged protected acts cited by Cardwell in support of his retaliation claims weren’t actually protected under anti-bias laws, the court said. And he failed to allege that Chudd, Hudson, or Butler were aware of any of the six protected acts, or that Birnbaum, Brass, or Wolfe knew of any of the six other than Cardwell’s filing of discrimination charges with federal and state authorities shortly prior to being fired, the court said.

Cardwell adequately alleged that he wouldn’t have been fired if he hadn’t filed the administrative charges. That, combined with Birnbaum’s, Brass’, and Wolfe’s alleged awareness of the charges, was enough to allow those claims to go forward against those defendants, the court said.

It gave Cardwell leave to try to amend the dismissed claims, except for his harassment claims under the NYSHRL and his aiding-and-abetting claims under Section 1981. Any attempt to cure the pleading deficiencies in the NYSHRL harassment and Section 1981 aiding-and-abetting claims would be futile, the court said.

The rest of Cardwell’s claims against Davis Polk and Reid and Bick also remain pending.

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

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, 10/26/20.