Black Lawyer’s Bias Suit Against Davis Polk, Partners Advances

Sept. 24, 2021, 7:38 PM

A Black attorney alleging race discrimination and retaliation at law firm Davis Polk & Wardwell LLP failed to fix deficiencies in some of his allegations against the firm’s partners but may move forward with the bulk of his claims, the Southern District of New York ruled.

It is the second time Kaloma Cardwell has seen his lawsuit narrowed since he sued Davis Polk, managing partner Thomas Reid, and seven partners in the firm’s corporate/mergers and acquisitions group in November 2019. The U.S. District Court for the Southern District of New York Oct. 26 dismissed Cardwell’s hostile work environment claims and most of his allegations against the M&A group partners but gave Cardwell the opportunity to amend the suit to try to cure the shortcomings in most of the dismissed claims.

Cardwell, who says his race caused him to be victimized by rigged performance-review processes and other biased workplace systems leading to wrongful discharge after four years, failed to fix the problems with an amended complaint alleging Davis Polk’s partnership is less diverse than former President Donald Trump’s judicial appointees, Judge Gregory H. Woods said.

The complaint didn’t adequately allege that Cardwell’s race was a motivating factor in the actions of partners Harold Birnbaum and Brian Wolfe, so his discrimination claims against those defendants are dismissed, the court said Thursday.

But Cardwell sufficiently alleged that partner Daniel Brass discriminated against him because of his race when Brass removed him from a “deal team,” allowing that claim to go forward, the court said.

Cardwell also plausibly alleged that partners Birnbaum, Wolfe, Brass, John Butler, William Chudd, and Sophia Hudson “were part of a group that collectively decided to fire him because of his protected complaint to the EEOC,” allowing his retaliation claim to proceed, the court said.

The court also granted Cardwell’s motion to amend his complaint with respect to his discrimination and retaliation claims based on information that he couldn’t reasonably have known before reviewing evidence presented by the defendants in discovery.

In a separate ruling, the court ordered Cardwell’s counsel to pay $4,000 in sanctions for the legal costs the defendants incurred in obtaining discovery, the Southern District of New York ruled. The court ruled last November that Cardwell’s responses to Davis Polk’s document requests and interrogatories—lodging general objections to discovery and offering to meet and confer with the opposing party—failed to comply with the Federal Rules of Civil Procedure.

The alleged retaliation against Cardwell included denying him job assignments and eventually terminating him, the complaint alleges.

He was the only Black attorney hired in the firm’s 2014 class of more than 120 new associates, and one of only four black attorneys at the entire firm, the complaint says.

Cardwell was fired six months after he filed a bias charge against Davis Polk with the Equal Employment Opportunity Commission, the suit says.

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

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 19-cv-10256, motion for partial dismissal granted 9/23/21.

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com; Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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