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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS LEE THOMPSON, Plaintiff, CIVIL ACTION NO.: 10-CV-10377-PBS BANK OF AMERICA, Defendant. PLAINTIFF'S MEMORANDUM IN SUPPORT OF HER MOTION TO COMPEL THE IDENTITIES AND CIRCUMSTANCES FOR DISMISSALOF ALL. BANK OF AMERICA EMPLOYEES WHO WERE FIRED FOR A VIOLATION OF THE CODE OF ETHICS AND CORPORATE EXPENSE POLICY Plaintiff Lee Thompson (“Plaintif{”) submits this memorandum of law in support of her Motion to Compel the Identities and Circumstances of Dismissal of Any and All Bank of America Employees Who Have Been Fired For a Violation of the Code of Ethics and Corporate Expense Policy. Such records are relevant and discoverable because: ee Pie tif has asserted claims of pregnancy and gender discrimination in relationship to her termination from Defendant, Bank of America, N.A. (“Defendant”) 2. Defendant alleges that Plaintiff was not terminated as a result of pregnancy and gender discrimination but instead contends that Plaintiff was terminated for a violation of the Code of Ethies and Corporate Expense Policy. See Defendant's Position Statement to the Massachusetts Commission Against Discrimination, page 4, attached hereto as Exhibit | 3. Through Plaintiff's Interrogatory Request No. 12, Plaintiff seeks the identity of any employees that have been fired since January 1, 2006 to present for violation of the same Code of Ethics and Corporate Expense Policy. See Plaintiff's First Set of Interrogatories, attached hereto as Exhibit 2. 4. Defendant produced the employee identification number and gender for only Band-3 or higher level employees in Global Wealth and Investment Management, and objected ‘on the basis that the interrogatory seeks information concerning every Bank employee and thus is not limited to Plaintiff's direct comparators. 3. Plainti s not seeking information concerning every Bank employee; Plaintiff is, seeking relevant information related to all other at Band-3 or higher employees, including those who worked in groups outside of the Wealth and Investment Management Group, who are listed as terminated for the same offense as Plaintiff. 6. This information is relevant because presumably there are many ways to violate the Code of Ethics and Corporate Expense Policy and Plaintiff is seeking to narrow the list of her comparators to those employees who were fired for exactly the same type of violation. 7. Itis important for Plaintiff to know exactly who her comparators are because the Plaintiff seeks to establish that the stated reason for her termination is pre-textual. Therefore, is information regarding the termination of her comparators will assist Plaintiff in establishing pre-text. 8. In order to show that the given reason for her termination was pre-textual, Plaintiff “must identify other employees to whom he is similarly situated in terms of performance, qualifications and conduct, without such differentiating or mitigating circumstances that would distinguish their situations.” Matthews v. Ocean Spray Cranberries. Ine. 426 Mass. 122, 130 (1997) (citations omitted). 9. Further, in order to establish who her comparators are, Plaintiff must show that the offenses were of comparable seriousness. Id. at 130. 10. Therefore, Plaintiff has an interest in knowing the names and surrounding circumstances of all Bank employees who were fired for a violation of the Code of Ethics and Corporate Expense Policy 8. Inan e-mail dated September 22, 2010, Attorney Stephanie Bruce wrote to Plaintiff's attorney John Davis that, “Your client has raised a gender discrimination claim, thus the relevant information regarding gender of the individuals has been provided to you.” See E= ‘mail from Stephanie Bruce to John Davis dated 9/2/10, attached hereto as Exhibit 3 9. Itis well settled that parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. See Federal Rules of Civil Procedure, Rule 26(b)(1). 10. Counsel for Defendant also stated in her September 2, 2010 e-mail that, “Your client is not entitled by virtue of her litigation, to learn otherwise confidential and private information about other individuals who have been terminated by Bank of America.” See Exhibit 3. 11. While Plaintiff may not be entitled to this information simply because she alleges discrimination, she is now entitled to this information based upon Bank of America’s defense that she was terminated for a violation of the Code of Ethies and Corporate Expense Policy 12, It is unquestionable that this information, specifically the names of all individuals terminated for violation of the Code of Ethics and Corporate Expense Policy and the circumstances surrounding each termination, is relevant and may lead to discoverable information. 13. Furthermore, the Parties executed a confidentiality agreement which was filed with this Court on August 6, 2010 which limits the exposure of this information. WHEREFORE, the Plaintiff respectfully requests that this Court ALLOW her Motion to Compel the Identities and Circumstances for Dismissal of Any and All Bank of America Employees Who Have Been Fired for a Violation of the Code of Ethics and Corporate Expense Policy. Respectfully Submitted, The Plaintiff, Lee Thompson By her Attorney, /s/ John W. Davis ‘ohn W. Davis BBO# 648399 Davis & Davis, P.C. 77 Franklin Street, 3" Floor Boston, MA 02110 P: 617.338.5770 F: 617.338.5771 November 4, 2010 jdavis@davisanddavispe.com CERTIFICATE OF SERVICE 1, John W. Davis, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on November 4, 2010. {siJohn W. John W. Davis