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Daily Labor Report®

Davis Polk Hit With Bias, Retaliation Suit by Black Lawyer (2)

BY PATRICK DORRIAN

Nov. 5, 2019, 8:49 AM; Updated: Nov. 5, 2019, 3:59 PM

COURT: S.D.N.Y.

TRACK DOCKET: No. 1:19-cv-10256 (Bloomberg Law Subscription)

COMPANY INFO: Davis Polk & Wardwell LLP

Davis Polk & Wardwell LLP is accused in a new lawsuit in New York of discriminating and retaliating against a black former associate because of his complaints about racial bias at the law firm.

The retaliation against Kaloma Cardwell allegedly included denying him job assignments and eventually terminating him, according to his complaint filed in federal court in Manhattan.

The firm’s push to limit his professional development and work opportunities was in stark contrast to what it told Cardwell about its diversity and inclusion efforts when it recruited him away from other firms, he says. The bias caused him to go from billing more than 100 hours per month to four straight months with zero billable hours, Cardwell says in the Nov. 4 complaint.

The suit names Davis Polk managing partner Thomas Reid and six corporate partners as defendants in addition to the firm.

The bias came even though Davis Polk acknowledged that it had struggled in the past to recruit and retain black lawyers and had told him it had taken steps to address the problem, Cardwell says. Reid even sought out Cardwell for help in improving diversity within the firm, he says.

Cardwell started with the firm in 2013 as a summer associate and then worked as a full-time lawyer from 2014 to 2018, the suit says. 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. Legal publication Chambers Associate has reported that, in 2019, 87% of Davis Polk partners are white, 81% are men, and less than 1% are black, according to the lawsuit.

Despite his top credentials and stated attractiveness to Davis Polk, the firm didn’t address, and retaliated against Cardwell, when he personally reported discrimination, the suit says. A firm leader, for example, chalked up Cardwell’s initial complaint about partners failing to make eye contact with summer associates “of color” to “social awkwardness,” the lawsuit says. Caldwell said he expressed concerns about his chances to advance at the firm before agreeing to work there and received assurances that it recruited the top black law school graduates and wanted to retain them, the suit says.

Despite those assurances, Cardwell soon found himself left off emails and excluded from meetings yet he continued to complain about the bias. Instead of properly investigating, Davis Polk embarked on a “year-long process” to try to build a false record of “distorted” performance issues for which it could fire Cardwell, the suit says. That included multiple “sham” job reviews that provided “vague” critiques of his performance that were inconsistent with verbal feedback he was receiving and that “no associate would have been able to assess, verify, or dispute.” The most specific criticism he received from one partner, for example, related to his misuse of “I” in place of “me” in an internal email, Cardwell says.

His termination came about one year after Reid had threatened that Cardwell would be “out of the game” and “off the field” if he didn’t let go of mistreatment complaints and move forward with his career at the firm, Cardwell says. It also came roughly six months after Cardwell filed a bias charge against Davis Polk with the Equal Employment Opportunity Commission, the suit says.

Causes of Action: Race discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Relief: Compensatory damages, including back pay, front pay, lost bonuses and other benefits; emotional, reputational, and psychological harm; punitive damages; order declaring the firm violated federal, state, and local anti-bias laws; attorneys’ fees and costs; pre- and post-judgment interest.

Response: “Mr. Cardwell’s termination had nothing to do with his race,” Davis Polk told Bloomberg Law in a Nov. 5 email. “He was terminated for legitimate, non-discriminatory reasons. The claims lack merit, and the firm will defend the case vigorously.”

Attorneys: David Jeffries and Law Offices of Martin E. Restituyo represent Cardwell.

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, complaint filed 11/4/19.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

Patrick Dorrian

Patrick Dorrian

Reporter

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(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084114)

https://www.courtlistener.com/recap/gov.uscourts.nysd.525896/gov.uscourts.nysd.525896.1.0.pdf

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084122)

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084126)

Kill yourself Devry you fucking faggot

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084154)

“Hi Sophia, Attached, please find the following drafts (each clean and marked against the respective early tender documents): [REDACTED LIST OF DOCUMENTS]. Please let me know if you have any comments.

Also, before [the senior capital markets associate on the deal] heads off on vacation this weekend, is there a time tomorrow that you’ll be available to meet with [White senior associate] and I?”

Ms. Hudson’s immediate and entire response to the email above:

“[Plaintiff], No one likes to be corrected on grammar, but it’s something partners and sophisticated clients notice a lot so I hope you’ll take my advice in the right spirit. Please be careful using I/me. ‘Me’ is the appropriate pronoun to use below as it is being used as an object of the preposition ‘with.’ Best, Sophia”

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084312)

exactly the type of shrew micromanager you'd expect to send such an email, regardless of whether this AA is competent or not

awaiting james joyce jr's thoughts.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085160)

2. But I don't think I'd ever send an email about it.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39086098)

In this case, I know she is talking to an associate, but she should have said thsi shit in person not by email. She must be fucking brutal to her juniors.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39086211)

Also lol at him taking a month off because he was “sick to his stomach” at how DPW wasn’t cultivating his career.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084253)

management committees, to be viewed as the “quarterbacks” of the world's most complex legal

deals and institutions.

257. The facts reveal that, between 2015 and 2018, Defendants quarterbacked and

permitted a playbook that marginalized, discriminated against, and retaliated against Plaintiff, the

only Black male associate in Davis Polk's 2014 associate class.

258. In whole or in part because of Plaintiff's race, Davis Polk and the other defendants

committed themselves to in an illegal “game” until Plaintiff was “off the field.”

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084339)

235. On May 24, 2017, Davis Polk received notice that Plaintiff had engaged Outten &

Golden LLP as his legal counsel. It was not until Plaintiff’s counsel informed Davis Polk of that

fact (i.e., that Plaintiff had engaged counsel) did the Firm assign Plaintiff to his first M&A deal

in over eight months.

236. After effectively experiencing radio silence with Davis Polk’s M&A attorneys for

months—beginning at the end of March 2017 and continuing throughout the rest of the year—

Plaintiff’s experience at the Firm continued to be marked by a series of interactions where Davis

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084348)

Davis Polk: Our partners aren’t racist, they’re autistic!

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084360)

--

197. The following is a list of Davis Polk partners and staff persons who, at the time,

were a part of Davis Polk’s official (and unofficial) Diversity Committee. The list below also

shows the number of days (leading up to January 1, 2018) that passed before Plaintiff received

an email from each person listed below (i.e., notwithstanding group emails sent by such persons

to practice groups and other listservs (e.g., to “All Lawyers,” to the Black Attorneys Group’s

listserv)):

a. Kyoko Takahashi Lin, a Corporate Partner, went about 458 days without

sending Plaintiff any emails (i.e., from about September 30, 2016 - January 1,

2018).

b. [Davis Polk’s Director] went about 593 days without sending Plaintiff any

emails (i.e., from about May 18, 2016 - January 1, 2018.

c. Monica Holland, a Corporate Partner who also served as the Chair of the

Diversity Committee, went about 584 days without sending Plaintiff any

emails (i.e., from about May 27, 2016 - January 1, 2018).

d. Maurice Blanco, a Corporate Partner who also served as the Firm’s hiring

partner, went about 584 days without sending Plaintiff any emails (i.e., from

about May 27, 2016 - January 1, 2018).

e. James McClammy, Davis Polk’s only Black partner at the time, went about

613 days without sending Plaintiff any emails (i.e., from about April 28, 2016

Case 1:19-cv-10256-GHW Document 1 Filed 11/04/19 Page 64 of 87

Page 65 of 86

- January 1, 2018, except for an October 30, 2017 email that was sent to

confirm whether Plaintiff would be attending an affinity group meeting).

f. Byron Rooney, a Corporate Partner, went about 670 days without sending

Plaintiff any emails (i.e., from about March 2, 2016 - January 1, 2018).

g. Sartaj Gill, a Corporate Partner, went about 730 days without sending Plaintiff

any emails (i.e., he did not email Plaintiff at any point in 2016 or 2017).

h. Elliot Moskowitz, a Litigation Partner, went about 730 days without sending

Plaintiff any emails (i.e., he did not email Plaintiff at any point in 2016 or

2017).

198. Notably, Mr. Reid went about 711 days without sending Plaintiff any emails (i.e.,

from about January 21, 2016 - January 1, 2018). The lack of written communication from

partners and staff persons who, at the time, were a part of Davis Polk’s official (and unofficial)

Diversity Committee was not mitigated through face-to-face or phone conversations between

such persons and Plaintiff, as such conversations were similarly and virtually non-existent.

After almost a full year of constant disparate treatment, Defendants decided that they had to go

beyond merely waiting for Plaintiff and his career “to implode.” Instead, Defendants attempted

to permanently collapse and cripple Plaintiff’s career themselves.

199. Davis Polk did not staff Plaintiff on any matters in December 2016.

200. Davis Polk did not staff Plaintiff on any matters in January 2017.

201. Davis Polk did not staff Plaintiff on any matters in February 2017.

202. Davis Polk did not staff Plaintiff on any matters in March 2017.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084384)

JFC, imagine the level of fear that must exist in an environment where complaints like this are even entertained. You can get fired for making eye contact, or not making eye contact, or making the wrong eye contact: http://www.autoadmit.com/thread.php?thread_id=4071887&mc=40&forum_id=2

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084435)

ljl at the contents of that email. Can you imagine the lawsuit if a white partner emailed a white associate even one time to ask if they were going to the "affinity meeting?"

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084515)

The bias caused him to go from billing more than 100 hours per month

The bias caused him to go from billing more than 100 hours per month

The bias caused him to go from billing more than 100 hours per month

The bias caused him to go from billing more than 100 hours per month

The bias caused him to go from billing more than 100 hours per month

The bias caused him to go from billing more than 100 hours per month

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39084759)

179. On December 5, 2016, Plaintiff emailed [DAVIS POLK PARTNER #1], the

supervising partner on a criminal justice pro bono matter that Plaintiff was previously staffed on,

the following email:

“Hi [DAVIS POLK PARTNER #1],

Hope this email finds you well. In light of the Presidential election, the conditions

that contributed to its outcome and what is happening in our country, I wanted to

briefly follow-up on our memo to [REDACTED].

As a reminder, our initial memo detailed how blacks were being

disproportionately and unfairly harmed by certain [prison-related] industries and

companies. I’m hoping we can discuss what can be done to distance ourselves

from [REDACTED] and ultimately end the firm’s relationship with

[REDACTED].

I’m not sure what that internal process would or could look like, or whether the

firm has ever distanced itself from certain clients in the past, but I’d be interested

in hearing what you think could or should be done. I look forward to hearing from

you. Regards, [Plaintiff]”

180. The memo that Plaintiff referred to in the email referenced above used publicly

available information to research and detail several civil rights and human rights violations that

disproportionately impact Blacks, Latinos, Muslims, and immigrants. On this pro bono matter,

Case 1:19-cv-10256-GHW Document 1 Filed 11/04/19 Page 58 of 87

Page 59 of 86

[DAVIS POLK PARTNER #1] and the Firm had authorized the removal of one of the memo’s

topics/sections due to what they claimed was the possibility of a private for-profit prison and

immigrant detention company being “negatively impacted” (“Potentially Negatively Impacted

Private Prison Company”) by the memo. The removed/topic section did not mention or name any

companies, let alone the name of the Potentially Negatively Impacted Private Prison.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085111)

164. On October 31, 2016, in a communication to a third-party, a senior Black

associate of the Firm and recipient of some of the Firm’s highest honors and praise, described

Plaintiff in the following way: “I first became aware of [Plaintiff] in the fall of 2014 through the

Black Affinity Group (BAG), a support network and networking outlet for black attorneys at the

law firm where he and I work, Davis Polk & Wardwell LLP. As I have found to be the case for

others who come to know [Plaintiff], before I met him, I knew his name and of his ability to

connect people to actionable ideas. In BAG, he exhibits leadership among more senior attorneys

Case 1:19-cv-10256-GHW Document 1 Filed 11/04/19 Page 53 of 87

Page 54 of 86

and partners and quite frequently is deferred to once he has given his input….[O]ur many

conversations…have led me to see [Plaintiff] as one of the few people in an office of over 700

people who is my go-to person for key decision points, whether I’m considering navigating the

politics of potential partnership consideration or troubleshooting ways to get better to ensure the

success of our diverse peers.”

165. On December 5, 2016, a senior Black associate voluntarily emailed the Black

Attorney Group’s listserv and stated: “All, [o]ne of our own has been featured in the

[Metropolitan’s Black Bar Association’s] newsletter below. Congratulations, [Plaintiff].” The

senior Black associate was drawing attention to the fact that the Metropolitan Black Bar

Association (i.e., New York City’s largest Black Bar Association) had featured Plaintiff in its

“MBBA Leadership Spotlight.”

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085127)

126. On July 22, 2016, after many months, Plaintiff was finally staffed on an M&A

deal. As instructed by [Davis Polk Junior Staffing Coordinator #1], on July 22, 2016, Plaintiff

reached out to Mr. Brass, a White then-senior M&A associate and current M&A Davis Polk

partner. Plaintiff’s email exchange with Mr. Brass went as follows:

• Plaintiff to Mr. Brass (2:39 p.m.): “Hi Daniel, I’ll be assisting you on the

[REDACTED] deal. When your schedule permits, please let me know

when you’d like to discuss.”

• Mr. Brass’s Response (2:41 p.m.): “Thanks. [The senior associate] will

reach out to you [sic]”

• Plaintiff’s Response (2:46 p.m.): “Thanks, Daniel.”

Case 1:19-cv-10256-GHW Document 1 Filed 11/04/19 Page 41 of 87

Page 42 of 86

• Mr. Brass’s Response (5:38 p.m.): “I think you stand down for now!”

• Plaintiff’s Response (5:42 p.m.): “Thanks, Daniel. Will do. Any sense if

and when the status of the deal could change?”

• Mr. Brass’s Response (5:43 p.m.): “I think we are ok for the near future.”

• Plaintiff’s Response (5:44 p.m.): “Understood.”

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085146)

Understood

OK

Thanks

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085515)

finished in the Top 10% (High Honors) and Top 40% (Honors) in several law

classes that included both corporate courses and civil rights courses;

• received one of the highest grades in his legal ethics and professional

responsibility course due to an essay that Plaintiff authored, which was entitled

“An Opportune Time to Engage Inclusion, Democracy, and...Race.”

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085188)

V10s (such as Cleary, Paul Weiss) have to settle for bottom 25% at CCN, but V5s have their pick of the murder.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39086399)

Fuck the plaintiff but fuck DPW too for pandering to them and I always enjoy biglaw being exposed esp for a white shoe firm like DPW that is just as shady as the rest of them.

And as an aside, one of the named defendants is from my class. All I can say is that I am not at all surprised that he made partner and in 7-8 years no less.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085242)

This guy really just got unlucky with his firm choice. Expectations there as a senior associate in most groups are absurd. You’re expected to operate as a partner. If you’re not on track to be operating as a partner running deals solo by year 7, you’re probably done. Guy was doomed after year 5 regardless of this shit if he was taking any substantive time off, billing less than 180/mo average, etc. And the kind of person who would write emails like this, regardless of viewpoint or subject, has no chance in the culture there.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39086852)

24. Plaintiff’s merit-based Berkeley Law Dean’s Fellowship provided a total of

$75,000 of support and was in addition to any need-based grant. Ultimately, Berkeley Law

offered Plaintiff an additional $30,000 in merit-based scholarships to discourage Plaintiff from

accepting similar scholarships that other top-ranked law schools had offered Plaintiff in the

Spring of 2011.

25. Though some Black law students are characterized as benefiting from affirmative

action, at the time that Berkeley Law evaluated Plaintiff’s law school application, Berkeley Law

was legally prohibited from using race-based affirmative action in their admission and evaluation

process. Plaintiff, along with just a handful of students, was awarded the above competitive,

merit-based scholarship awards out of the 300-plus students who joined Berkeley Law in the Fall

of 2011.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085358)

DBG, your reply? Is this flame, or what?

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39087594)

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39097486)

there wouldn't be a single negro at any UC in any professional program if they didn't skirt the law.

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39097571)

https://www.vault.com/best-companies-to-work-for/law/top-100-law-firms-rankings

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39085686)

while White/other associates are getting invited to "prestigious" client meetings on weekends, u just show up, do a few hundred hours of work per YEAR, and chill for four years while making bank

then u file a suit to get even more money from that firm

after u settle, u can write a book and become a diversity consultant and rake in even more $$$

(http://www.autoadmit.com/thread.php?thread_id=4377762&forum_id=2#39086314)