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On June 18, 2007, Complainant filed a response toRespondent’s Motion with notarized affidavit contending that:(1) Respondent’s motion mischaracterized Complainant’s protectedaction in that Complainant contends he was fired in retaliationfor properly taking store markdowns over the objection of hissuperiors, complaining about “return to vendor” charge backpractices, and refusing to follow the fraudulent practice; (2)whether or not Ms. Heifner had authority to investigate,discover, or terminate misconduct is a question of fact to bedecided at trial and may not be determined by Respondent’sassertions and self-serving affidavits; (3) whetherComplainant’s statement to Ms. Heifner was a contributing factorin his discharge requires determination by the fact finder; (4)whether Complainant would have been discharged for the reasonasserted by Respondent calls for determination by the finder offact; and (5) Respondent has a history of presenting affidavitswhich prove to be inaccurate, misleading, and even false,therefore no affidavits supplied by Respondent should be reliedupon for purposes of summary judgment, and cannot be substitutedfor live testimony.
Complainant was deposed by the parties on March 26, 2007.(Complainant’s deposition, p. 2). He was employed on April 19,2006, as department supervisor at a Home Depot store. Duringthe first week of June 2006, Complainant purposed to mark downhooks for use in his department using a computer located in theservice department. He was told by Brandi Heifner, servicedepartment supervisor, that nothing was to be marked down forstore use anymore, and that everything was to be entered asdamaged goods. Complainant responded stating “you can’t dothat. It’s illegal.” Ms. Heifner responded “that’s Tom’sorders,” referring to Tom Burns, the store manager.(Complainant’s deposition, pp. 34-35, 242).Complainant refused to follow Ms. Heifner’s instructions,stating “If you want to write them down to damaged goods, you’rewelcome to, but I’m not going to do it.” She took the hooks andentered the information into the computer herself. AmyHigginbotham, an employee who reported to Brandi Heifner, waspresent during the conversation. Complainant stated that thedepartment heads had authority only to supervise the employeesin their department. (Complainant’s deposition, p. 50). LikeComplainant, Ms. Heifner was a department head. Complainant wasnot an employee in Ms. Heifner’s department, although