By Patrick Dorrian
Davis Polk & Wardwell LLP says evidence taken in a Black former associate’s race discrimination and retaliation shows he was terminated for consistently poor work, which failed to improve despite help, and his federal lawsuit should be dismissed without a trial.
Senior lawyers in three of the firm’s independent practice groups had documented “increasingly troubling problems with” Kaloma Cardwell’s performance by the end of his second year, Davis Polk and a group of eight individual attorneys also being sued said in a motion for summary judgment.
That included neglecting assigned tasks, forming incorrect legal conclusions, failing to meet deadlines, and not being available “when tasks needed to be completed in real time,” the firm told the U.S. District Court for the Southern District of New York Dec. 3.
As a result, Cardwell’s work often had to be redone and other attorneys sometimes had to be assigned to “his matters to pick up the slack,” Davis Polk said.
Cardwell was regularly informed of his performance shortcomings while being assigned work and during three formal reviews, the firm said. Yet his performance continued not to measure up to the level required of Davis Polk associates, which became more of a concern as he rose through the associate ranks, its said.
That was so despite the firm’s “devoting significant, senior-level resources” to Cardwell’s development, Davis Polk said.
Evidence of Cardwell’s continued substandard work includes him delivering a draft of an important article for clients that was intended for publication “in which he expressly acknowledged that he had failed to confirm” whether case law referenced in the draft could be cited as good law and a partner’s inability to locate Cardwell for more than 10 hours, despite repeated attempts, in connection with a separate assignment, the firm said.
Cardwell also prepared a draft disclosure in connection with another assignment that included inapplicable sections from cases “describing entire analyses that were irrelevant,” and his work on yet another assignment showed he “failed to appreciate the difference between two key (and very different) types of” legal agreements, Davis Polk said.
During his fourth year as a Davis Polk associate, Cardwell was unable to perform “at the level expected of a mid-level associate, and, indeed, in certain respects, was performing at a level unacceptable for an associate at any level,” the firm said.
That drove the decision to tell him he needed to seek a job elsewhere, which the firm supported by keeping Cardwell on the payroll at his full salary for three months while he looked for new work, Davis Polk said. It even extended that time by an extra three months at Cardwell’s request, yet he now admits that he didn’t use it to seek new employment, the firm said.
The same evidence shows Cardwell wasn’t fired in retaliation for “his strong and vocal interest in issues of diversity and inclusion” and complaints about bias at the firm, the motion said.
Davis Polk backed the motion with affidavits from several of its current and former lawyers, including four of the attorneys named as individual defendants.
An affidavit from a partner who serves as the firm’s general counsel said that, as of November 2021, roughly 35% of Davis Polk U.S. lawyers and 26.8% of its attorneys across the globe “who were promoted to partner since 2016 are racially or ethnically diverse and/or LGBTQ+.” Four of its partners, including one in the corporate department, “self-identify as Black or African American,” the affidavit said.
Other records show “Cardwell was paid a salary and bonus consistent” with the firm’s practices and policy, the affidavit said.
Cardwell sued in November 2019. He was subjected to rigged performance review processes and other race bias during his four years in Davis Polk’s New York office and was denied work and ultimately fired for complaining about the bias to enforcement authorities, he said.
David Jeffries of New York represents Cardwell. Paul, Weiss, Rifkind, Wharton & Garrison LLP represents Davis Polk and the individual defendants.
The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 19-cv-10256, motion for summary judgment 12/3/21.
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By Patrick Dorrian