Davis Polk, Partners Say Black Lawyer’s Bias Suit Still Lacking

Davis Polk & Wardwell LLP told a Manhattan federal court that a Black attorney accusing it and several partners of race discrimination and related retaliation failed to cure deficiencies previously identified in some of his allegations against some of the partners.

Kaloma Cardwell sued the firm, 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 in November 2019. The race-based discrimination he experienced, which included rigged performance-review processes and other workplace systems, culminated in his wrongful firing after four years as an associate in Davis Polk’s New York office, according to Cardwell.

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 it gave Cardwell leave to amend the suit to try to cure the shortcomings identified with the dismissed claims, except for his harassment allegations under the New York State Human Rights Law and his aiding-and-abetting discrimination claims under 42 U.S.C. §1981.

Cardwell’s Nov. 10 second amended complaint, which charged that the firm’s partnership is less diverse than President Donald Trump’s judicial appointees, failed to fix those problems, Davis Polk and the individual defendants said in a Dec. 11 filing.

His amendments abuse the leave the court granted him, including by adding new assertions and a novel legal theory in a failed bid to salvage those claims, the firm and partners said in their motion to dismiss in part.

The new complaint abandoned Cardwell’s discrimination claims against Butler, Chudd, and Hudson, and his bid to salvage his discrimination claims against Birnbaum, Brass, and Wolfe failed because he still hasn’t plausibly described any conduct by them that was motivated by race, the motion said. He also still didn’t explain how his performance was similar to the White associates he alleges were treated better than him, according to the motion.

Cardwell’s attempt to salvage his retaliation claims against those six partners “reflect the types of blatant tailoring properly rejected” after repeated prior pleadings, the firm and partners said.

He now alleges that they had knowledge of three bias complaints he made before filing charges with the Equal Employment Opportunity Commission and New York state. But that allegation isn’t plausible because it’s contradicted by his original and first amended complaints, they said.

That M&A partners gathered annually to discuss associate performance reviews doesn’t mean Cardwell’s internal bias complaints were also discussed, the motion said.

The new complaint also asserted for the first time that Butler and Chudd were part of the group of lawyers who decided to terminate Cardwell, and that Hudson somehow otherwise “participated” in that decision, according to the motion. The new pleading also contradicts Cardwell’s prior assertions with regard to when Hudson prepared his 2016 performance review, Davis Polk and the partners said.

Cardwell similarly asserted a disparate impact discrimination claim for the first time, which is different than the disparate treatment claims included in his prior pleadings, according to the motion. The attempted addition of that new legal theory at this point in the case exceeded the leave to amend the court granted in its October order, the motion said.

The Oct. 26 ruling found that Cardwell adequately stated claims that he wouldn’t have been terminated if he hadn’t filed bias charges with the EEOC and New York state, and that he could continue to pursue the rest of his claims against Davis Polk, Reid, and Bick.

David Jeffries of New York represents 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, motion to dismiss in part 12/11/20.