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Department of Labor: FREDRICKSON ROGER v THE HOME DEPOT INC 2007SOX00013 (JUL 10 2007) 092740 CADEC SD

Department of Labor: FREDRICKSON ROGER v THE HOME DEPOT INC 2007SOX00013 (JUL 10 2007) 092740 CADEC SD

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Published by: Department of Labor on Jan 27, 2008
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06/14/2009

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U.S. Department of Labor
Office of Administrative Law JudgesSt. Tammany Courthouse Annex428 E. Boston Street, 1
st
FloorCovington, LA 70433-2846(985) 809-5173(985) 893-7351 (FAX)
Issue Date: 10 July 2007CASE NO.: 2007-SOX-13IN THE MATTER OFROGER FREDRICKSONComplainantv.THE HOME DEPOT U.S.A., INC.Respondent
RECOMMENDED DECISION AND ORDER GRANTING MOTION FOSUMMARY DECISION AND CANCELLING FORMAL HEARING
This proceeding arises under the Sarbanes-Oxley Act of2002, technically known as the Corporate and Criminal FraudAccountability Act, P.L. 107-204 at 18 U.S.C. § 1514A et seq.,(herein SOX or the Act), and the regulations promulgatedthereunder at 29 C.F.R. Part 1980, which are employee protectiveprovisions.On May 21, 2007, Respondent Home Depot filed a Motion forSummary Decision seeking dismissal of Complainant’s complaintagainst it arguing that Complainant cannot establish a
primafacie
case because: (1) Complainant’s communications did notconstitute protected activity under SOX; (2) Complainant did notcomplain to a person with the authority to investigate,discover, or terminate misconduct; and (3) Complainant cannotestablish that alleged protected activity was a contributingfactor to his discharge as the persons responsible for hisdischarge lacked knowledge of his alleged protected activity.Respondents Motion further provides that Complainantcannot prevail, even if he were to establish a
prima facie
casebecause Respondent demonstrated a legitimate business reason forthe unfavorable job action, which it would have taken absent thealleged protected activity.
 
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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 Respondentsassertions 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.
Background
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 cant dothat. Its illegal.Ms. Heifner responded thats Tomsorders,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 Im 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. Heifners department, although
 
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Complainant contends she had authority to “supervisecomputerentries done in her department. (Complainant’s deposition, pp.25-26).Complainant testified in deposition that he was not tolddirectly that marked-down items were recorded as a loss to thestore, but he had heard in meetings that damaged goods werecharged back to the vendor. He stated that he believed itemsrecorded as damaged goods were charged back to the vendor.(Complainants deposition, pp. 40-42). He further stated hebelieved that recording goods used by the store as damaged goodsconstituted falsifying the books of the company.(Complainant’s deposition, p. 36).The details of Complainant’s conversation with Ms. Heifnerare not in dispute. Complainant testified that he reported theconduct which he believed was illegal to Brandi Heifner, withMs. Higginbotham present. (Complainant’s deposition, pp. 46-47,49). After his conversation with Ms. Heifner, Complainantmentioned the incident to Ted Parent, a non-supervisoryemployee, and three or four other non-supervisory employees atthe service desk. (Complainant’s deposition, pp. 51, 54).Complainant did not discuss his conversation with Ms.Heifner or concerns about markdown practices with Mr. Burns, thestore manager, or Joe Martinez, Complainant’s direct supervisor.Complainant stated Mr. Martinez was on vacation and unavailableuntil his discharge date. Additionally, Complainant did notknow of other lawsuits involving markdowns and the return tovendor process
until after his termination
. (Complainantsdeposition, pp. 59, 258-259).A day or soafter Complainant’s conversation with Ms.Heifner, Complainant entered other items into the computer underthe “store use” category, contrary Ms. Heifner’s instructions.Complainant was aware Mr. Burns watched the books closely, andreviewed the things that went through the files every day.Complainant concluded that Mr. Burns was aware of his computerentries which contravened Mr. Burns’ instructions as relayed byMs. Heifner. (Complainants deposition, pp. 59-60).Complainant believed Mr. Burns may have been referring to theinput issue when he commented I get the feeling Im losingyou.(Complainant’s deposition, p. 62).

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