Cardwell v. Polk

KALOMA CARDWELL, Plaintiff, v. DAVIS POLK & WARDWELL LLP, THOMAS REID, JOHN BICK, WILLIAM CHUDD, SOPHIA HUDSON,HAROLD BIRNBAUM, DANIEL BRASS, BRIAN WOLFE, and JOHN BUTLER, Defendants.

1:19-cv-10256-GHW

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 24, 2020

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

Is Davis Polk & Wardwell LLP—one of the world's most prestigious law firms—a racist institution? Kaloma Cardwell says it is. Cardwell, who is Black, worked as an associate at Davis Polk for four years. There, he alleges that Defendants discriminated against him because of his race. When he complained about the discrimination, Cardwell alleges that Defendants orchestrated a campaign to retaliate against him by giving him negative performance evaluations. Defendants then allegedly used these performance evaluations as a pretext to stop assigning Cardwell work. And it worked: Cardwell billed two hours per month for three consecutive months. Cardwell complained to Davis Polk's management about his workload. The firm's Managing Partner, Defendant Thomas Reid, expressed regret and told Cardwell that Davis Polk had "dropped the ball." But when Cardwell demanded an explanation, Reid told Cardwell that he would be "out of the game" and "off the field" if he wouldn't drop the issue. Reid promised that the situation would improve.

It didn't. Because you are reading this in a legal opinion, you can guess what happened next: Cardwell filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Then Davis Polk fired Cardwell. He sued, alleging a bevy of discrimination and retaliation claims under federal, state, and New York City law.

Defendants now move to dismiss some of Cardwell's claims against all Defendants and all of Cardwell's claims against some Defendants. The motion is GRANTED in part and DENIED in part. Cardwell has not adequately alleged that his race was a motivating factor in the actions of any Additional Defendant,¹ so his discrimination claims against those Defendants are dismissed. Cardwell has not plausibly pleaded that he was subjected to an objectively hostile work environment, so his hostile work environment claims against all Defendants are dismissed. Most of Cardwell's retaliation claims against the Additional Defendants suffer from multiple pleading deficiencies, so most claims are also dismissed. But Cardwell has plausibly alleged that Daniel Brass, Harold Birnbaum, and Brian Wolfe were part of a group that collectively decided to fire him because of his protected complaint to the EEOC, so the motion is denied as to those claims. Cardwell's harassment and aiding and abetting claims under state and city law are dismissed, but Defendants' motion to strike is denied. Because there are no remaining claims against Defendants Sophia Hudson, William Chudd, and John Butler, those Defendants are dismissed from the case.

I. BACKGROUND

A. Facts²

1. Cardwell joins Davis Polk.

Cardwell first joined Defendant Davis Polk & Wardwell LLP (the "Firm" or "Davis Polk") as a summer associate in 2013. AC ¶ 35. He joined the Firm as a full-time associate September 2014 and worked there until August 2018. Id. ¶ 4. He rotated through three corporate departments, or "practice groups:" Credit, Capital Markets, and Mergers & Acquisitions ("M&A"). Id. AfterCardwell did six-month rotations in those three departments, he was assigned to work permanently in M&A. Id. Cardwell was one of four Black associates hired to join Davis Polk's 2014 class of 120 associates. Id. He was the only male Black associate. Id.

Cardwell alleges that the discrimination began early in his tenure at Davis Polk. In May 2015, Cardwell complained that Davis Polk attorneys did not make eye contact or speak to junior or summer associates of color in meetings. Id. ¶ 56. Cardwell allegedly identified this "pattern" in an email to "Davis Polk's Executive Director" (the "Executive Director") who "worked closely with the Firm's management committee" and other partner committees on developing the firm's personnel, associate development, and firm management policies. Id. ¶ 55.³

Cardwell was dissatisfied with the Executive Director's response. The Executive Director emailed Cardwell that "unfortunately that happens to everyone" and attributed the lack of eye contact and communication to the "social awkwardness" of attorneys. Id. ¶ 58. So the Executive Director concluded, "[h]opefully if this happened to you, you showed them how to live in polite society(!) and introduced yourself." Id.

Cardwell also alleges that he was "exclu[ded] from opportunities" that were "vital" to his professional development. Id. ¶ 62. For example, Cardwell was "left off email communications and meeting invitations" that were circulated to all attorneys working on a particular deal or that otherwise should have included him. Id. ¶ 63. Once, Cardwell walked into a white 2014 M&A associate's office; she and Cardwell were working on the same deal at the time. Id. ¶ 64. Cardwell was surprised to learn that she had been invited to listen to a conference call with "high-level clients and senior attorneys." Id. Cardwell asked this associate to forward emails or meeting invitations tohim if she thought he should have been included on them. Id. The associate agreed and "periodically forwarded emails" from white senior M&A associates. Id.

At a September 2015 meeting between Davis Polk's Diversity Committee and its Black Attorney Group, Cardwell participated in a conversation about how Black Davis Polk attorneys "were excluded from staffing-related opportunities at the Firm." Id. ¶ 67. Partners on Davis Polk's Diversity Committee and the Firm's "Director of Associate Development" attended the meeting. Id. Cardwell "was directly asked whether he had personally experienced" racial discrimination at Davis Polk. Id. Cardwell answered that he had. Id. And he clarified in the ensuing discussion that he wasn't referring to a "feeling of being excluded." Id. Rather, Cardwell said that the "disparate treatment" he experienced was harmful to his and other Black associates' professional development because it gave them "fewer and different staffing-related opportunities." Id. No Davis Polk employees followed up with Cardwell after the meeting to ask about his comments. Id. ¶ 69. During a January 2016 dinner with a "senior Black associate" and Defendant Thomas Reid, the Firm's Managing Partner, Cardwell "educat[ed]" Reid about "how he had experienced interpersonal and institutional discrimination at the Firm." Id. ¶ 76.

2. Cardwell allegedly receives positive performance reviews.

Cardwell alleges that his performance reviews were positive during his first years at the Firm. Davis Polk has "a formal system of written performance reviews" to evaluate its attorneys. Id. ¶ 111. The performance reviews are collected in a "formal, systematic process." Id. ¶ 112. As part of that process, the Firm requires partners and senior associates to submit written performance review forms for junior associates. Id. After the Firm compiles those reviews, a partner has a face-to-face meeting with the associate to discuss her written performance reviews. Id.; see also id. ¶ 88 n.10 (distinguishing between "written performance reviews," which the reviewing attorney submitted to the Firm, and "face-to-face reviews," which are meetings between an associate and a partner "to discuss the written performance reviews"). The partner reviewer then summarizes thewritten reviews and the discussion during the face-to-face review in a written "Summary Review" that the partner submits to the Firm. Id. ¶ 112. The face-to-face reviews typically occur at the end of the year. Id.

Cardwell alleges that these reviews are important. He alleges that everyone involved understands that "written performance reviews can, and often do, 'make-or-break' attorneys' careers." Id. ¶ 113. According to Cardwell, performance reviews are an "official" and "authoritative" record of attorney performance at Davis Polk, including "whether attorneys are performing materially behind, with, or ahead of members in the reviewee's class." Id. ¶ 114. The Firm also allegedly uses the reviews to "assess[] and verify[] whether" reviewing attorneys evaluate junior associates "in a non-discriminatory, consistent, and accurate" manner. Id. Because the reviews are important, Davis Polk allegedly ensures that reviewers have adequate time to submit their written reviews and that reviewees have an opportunity to "prepare for their face-to-face review with their partner reviewer." Id. ¶ 113.

Cardwell had his first "face-to-face review" in May 2015 because it was Firm policy to conduct an associate's first such review after the associate spent six months at the firm. Id. ¶ 100 n.12. He had his second face-to-face review in December 2015 with Defendant William Chudd, an M&A partner at the Firm. Id. ¶¶ 10, 88. The review lasted "a few minutes" and Chudd gave "positive feedback" and two brief suggestions. Id. ¶ 88. The first was that Cardwell should "work on better setting expectations regarding how long it will take to do something." Id. The second was that Cardwell shouldn't "spend too much time thinking about the bigger picture." Id. Cardwell asked Chudd if he had advice about soliciting "real-time feedback" from supervising attorneys. Id. ¶ 90. Chudd "acknowledged" that it was difficult to get feedback from supervising attorneys but "encouraged Cardwell to continue trying to get such feedback." Id. ¶ 91. Cardwell alleges that Chudd's "comments and tone" made clear that Cardwell was "performing satisfactorily" and meeting "the Firm's and [the] M&A group's" expectations. Id. ¶ 93.

3. Cardwell allegedly receives a "sham" performance review from Bick.

In June 2016, Cardwell alleges that he received an irregular, unscheduled face-to-face review from Defendant John Bick. Id. ¶ 98. Bick was the head of Davis Polk's M&A group and a...