MEMORANDUM OPINION AND ORDER Kaloma Cardwell is a Black man who worked at Davis Polk & Wardwell LLP — one of the world’s most prestigious law firms — for four years. He asserts that Defendants here, Davis Polk and various individuals employed at the firm, discriminated against him based on race. That discrimination, he says, came in forms big and small: everything from not being included on team-wide emails, to being given work outside of his focus area, to being removed from projects. Worse yet, Cardwell says, when he began to complain about this discrimination, Davis Polk retaliated against him, issuing negative performance evaluations and reducing his hours. And he was directly warned that if he didn’t stop his complaints, he would be “out of the game” and “off the field” — a statement he viewed as a direct threat. Cardwell’s concerns came to a head in August 2017, when he filed a discrimination and retaliation complaint with the Equal Employment Opportunity Commission (the “EEOC”). In the following months, several individuals provided negative reviews of Cardwell’s work, which were used as the basis for Cardwell’s termination in early 2018. Cardwell tells a simple, distressing, story about his time at Davis Polk: He was subject to discrimination, he complained, and then he was retaliated against and fired. But Davis Polk and the other Defendants here categorically deny any discriminatory or retaliatory animus, and point to Cardwell’s allegedly poor performance as the reason both for his reduction in hours and his ultimate termination. Cardwell’s suit in this Court raises a host of discrimination and retaliation claims under federal, state, and city law; Defendants have moved for summary judgment on all of them. In response to the motion, in this opinion the Court rules as follows: First, Cardwell has abandoned his aiding-and-abetting claims, which will therefore be dismissed. Second, because Cardwell has failed to adduce any admissible evidence that a reasonable jury could use to support a finding of discrimination, Defendants’ motion for summary judgment will be granted with respect to his discrimination-based claims. But third, because a reasonable jury could find that some Defendants retaliated against Cardwell for his complaints, the summary-judgment motion will be denied for Cardwell’s claims based on retaliation — though several Defendants, as set forth in detail later in this opinion, will be dismissed from the case because they lacked the requisite knowledge to take retaliatory action. Finally, Defendants’ motion for summary judgment will be granted as to Cardwell’s claims for frontpay and backpay but not as to his other claimed damages. In sum, Defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART. I. BACKGROUND A. Facts1 Cardwell first joined Defendant Davis Polk & Wardwell LLP (the “Firm” or “Davis Polk”) as a summer associate in 2013. Dkt. No. 253 (“Pl.’s 56.1 Response”) 1. Cardwell joined the Firm as a full-time associate in the Firm’s Corporate Department on September 15, 2014 and worked there until August 10, 2018. Id. Cardwell was the only Black male associate hired to join Davis Polk’s 2014 class of over 120 associates. See Dkt. No. 209 (“Defs.’ Answer”) 317. After joining the Firm, Cardwell rotated through three of the Firm’s practice groups: (1) Finance, (2) Mergers & Acquisitions (“M&A”), and (3) Capital Markets. Pl.’s 56.1 Response 46. Each rotation lasted approximately six months. Id. Corporate associates typically only complete two rotations at Davis Polk and are expected to be permanently assigned to a practice group after their second rotation. Id. 45. Cardwell requested, and was granted, the opportunity to complete a third rotation. Id. After completing his third rotation, Cardwell was assigned to the M&A practice group. Id. 48. Davis Polk conducts performance reviews for its associates. Defs.’ Answer 168. As part of the review process, the Firm solicits written performance reviews from individual reviewers. The Firm utilizes a review template, which includes the question: “[D]o you feel this lawyer is performing materially behind, with or ahead of the lawyer’s class[?]” Id.; see Dkt. No. 223 (“ Buergel Decl.”) Ex. 9. The review template also asks the reviewing attorney to describe the associate’s performance. See Buergel Decl. Ex. 9. Once the reviewing attorneys complete their evaluations, the Firm develops a “consensus message” or “consensus feedback” to be delivered to the attorney being reviewed. Defs.’ Answer 168. The Firm selects one partner to deliver the consensus message to the attorney at a meeting. Id. The partner typically makes a record or summary of the meeting on a form. Id. The summary form contains sections relating to matters worked on by the reviewee and strengths and weaknesses of the reviewee’s performance. Id. The Firm does not have written guidelines for how partners should develop the associate’s consensus message. Dkt. No. 255 (“Jeffries Decl.”) Ex. 4 at 279:21-280:14. i. Cardwell’s First Rotation Cardwell completed his first rotation in the Firm’s Credit Group from September 2014 to April 2015. Pl.’s 56.1 Response 46. Davis Polk has an “informal goal” that junior associates “bill” — that is, spend and record time on Firm matters — 1,800 hours per year (which equates to 150 hours per month). Buergel Decl. Ex. 13 at 19. During his first rotation, Cardwell recorded the following number of billable hours per month: 29.5 (September 2014), 202.6 (October 2014), 73.8 (November 2014), 138 (December 2014), 71.2 (January 2015), 148.7 (February 2015), 119.6 (March 2015), and 160.1 (April 2015). Pl.’s 56.1 Response 57. This averages to 117.9 hours per month, somewhat below the Firm’s informal goal of 150 hours each month.2 In May 2015, after the end of his first rotation, Cardwell had a performance review with partner Jason Kyrwood. Id. 47. Five different attorneys completed a total of six written performance reviews in connection with Cardwell’s May 2015 review. Buergel Decl. Ex. 9 at 5, 6, 21, 23, 27, 28. All six reviews stated that Cardwell was performing “with” his class. Id. The written performance reviews included the following comments: “Kaloma is a hard worker and tries to please. He is proactive in offering help. He makes himself available. But Kal[om]a is on the slow side in producing drafts, and his work product needs improvement. Part of the reason for this is learning to ask questions when he does not understand instead of taking lots of time to try to figure out everything himself (even when offered assistance) and come to incorrect conclusions that often require his work to be redone.” Id. at 23. “He’s able to understand issues and deal with the mechanics of a complex closing. He’s very easygoing and easy to work with. Sometimes he lacks a bit of initiative and takes longer than expected to complete certain tasks, but overall the quality of his work is quite good.” Id. at 6. “Try to take more initiative with the simpler matters and be more prompt to respond and act.” Id. “Worked on a commitment paper exercise and he did a good first turn. There were a few places where hard thinking would have led him to infer a few additional changes that he didn’t make, though that’s very typical for someone at his level.” Id. at 21. “Kaloma worked with me on a small deal that requires him to take the charge in getting the deal through. He did an excellent job in liaising with borrower, borrower’s other counsel and lender’s counsel and pushing the deal through the finish line with minimal supervision.” Id. at 27. “Kaloma did a great job on the transaction I worked with him on. Very good attention to detail and delivered work product on time and in very good shape.” Id. at 28. “I think the most important thing for Kaloma is to have more self-confidence. He definitely understands everything surrounding deals and assignments, but I think he waits for instructions when I think his first instinct is right on. One other thing is that he takes a lot of notes. This may just be a personal pet peeve, but I think he’s sometimes so focused on making sure that he takes detailed notes that he doesn’t focus on the big picture and might miss higher level connections that could help him better understand how a specific assignment fits into the broader context of a deal.” Id. “Kaloma was very good at assisting with the closing and post-closing of the transaction. He’s organized and shows attention to detail, and was able to run with tasks on his own.” Id. at 5. In his summary of the review, Kyrwood described Cardwell’s evaluation as: “Generally positive — organized, high quality work, good attention to detail, hard worker. Some notice that he is a little slow in turnaround time and thought would benefit from asking more questions. Also he should take more initiative[.]” Id. at 37. In his deposition, Cardwell stated that his face-to-face review with Kyrwood was a “ two to three-minute conversation” and that Kyrwood “did not say anything that could be reasonably construed as or interpreted as negative criticism,” “as a performance deficiency,” or as “a performance issue.” Jeffries Decl. Ex. 1 at 472:18-473:19. ii. Cardwell’s Second Rotation Cardwell’s completed his second rotation in M&A from April 2015 to October 2015. Pl.’s 56.1 Response 46. In that time-period, Cardwell averaged 172.5 hours of billable hours per month — thus exceeding both his average during his first rotation and the firm’s informal goal of 150 hours each month. See id. 69 (recording the following billable hours per month during Cardwell’s second rotation: 160.1 (April 2015), 190 (May 2015), 192.7 (June 2015), 266.5 (July 2015), 169.2 (August 2015), 181.0 (September 2015), and 47.7 (October 2015)). Cardwell raised his first concerns about the Firm’s environment for people of color near the start of his second rotation, detailing a racial microaggression that he experienced. On May 8, 2015, he emailed the Firm’s Executive Director of Personnel regarding what he called an “inter-office dynamic,” and recommended that the issue be addressed through the Firm’s training for third-year associates. Jeffries Decl. Ex. 69. Cardwell asked for the training to “remind[] our attorneys of the importance of saying hello and introducing themselves to attorneys they do not know,” and stated that the Firm should want “to prevent the situation where a summer associate or junior associate (of color) sits at a table at a practice group meeting (or some other meeting), and no one at that table makes eye contact or says hello for 10, 15 minutes or longer.” Id. In response, the Executive Director of Personnel stated that this “is a symptom of lawyers being more socially awkward than most” and that “[u]nfortunately that happens to everyone but it can be most uncomfortable for those who are junior or new or feel different.” Id. She went on to state that “[h]opefully if this happened to you, you showed them how to live in polite society (!) and introduced yourself.” Id. The Executive Director of Personnel forwarded Cardwell’s email to the Firm’s Director of Professional Development and to a Manager in the Associate Development Department. Id. The Director of Professional Development responded: “I know that sometimes the issue is that the ‘old’ [Davis Polk] person is terrified of introducing themselves to someone they have met before or have been working with for months. The new person should also introduce him or herself.” Id. During his second rotation, Cardwell worked on a matter with Daniel Brass and Zain Rehman, who were associates at the time. Pl.’s 56.1 Response
59-60. On September 9, 2015, Rehman sent Brass an email, which stated: “I am getting a bit frustrated on the junior staffing on this deal — as I am doing a lot of heavy lifting on small things which Kaloma should be taking care of. I will have a conversation with him tomorrow, but I would appreciate if you could please keep him copied on all instructions to me regarding the deal — I think this will help him stay in loop and know what is coming down the pipeline.” Dkt. No. 225 (“Brass Decl.”) Ex. 13; Pl.’s 56.1 Response 62. On September 30, 2015, at 8:54 p.m., Brass emailed Cardwell asking Cardwell to send him a set of documents “with the dates changed to this Friday.” Pl.’s 56.1 Response 63; see Brass Decl. Ex. 1. At 9:05 p.m., Cardwell replied, “No problem. I’ll send revised drafts shortly.” Pl.’s 56.1 Response 63. At 9:47 p.m., Brass responded, “Any estimate on timing? I need to get the email out very soon.” Id. At 9:51 p.m., Cardwell replied, “15-20 minutes,” to which Brass responded, “I will do it myself.” Id. In his declaration, Brass states that he viewed Cardwell’s performance on the matter as “unreliable and substandard.” Brass Decl. 2. Brass asserts that Cardwell “was at times not available when I needed assistance, or delivered work so slowly that I either had to handle it myself or learned not to entrust Mr. Cardwell with time-sensitive work.” Id. Further, Brass asserts that he “often had to redo the work” Cardwell sent to him, and that he “made errors in the work he delivered to me that made it difficult to trust the work product I received from him.” Id.
