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Reprints'Whistle-blower' who couldn't prove F&I misconduct can't challenge firing, judge rules
A Mississippi dealership employee fired after alleging F&I misconduct at the store has lost her bid to pursue claims of retaliation and wrongful discharge.
U.S. District Judge Sharion Aycock has ruled that Sandi Hathcote Vaughn didn't provide enough evidence that the alleged misconduct was actually criminal, although her allegations of improper financing and insurance practices led to the termination of seven co-workers. Vaughn's good-faith belief that the practices were illegal was not enough to invoke an exception to Mississippi's at-will employment law.
Carlock Nissan of Tupelo Inc. hired Vaughn on an hourly basis to help salespeople contact potential customers, adding a $100 "birddog" fee, or commission, for every such customer who bought a vehicle, the decision said. The store later reduced the commission to $50 per vehicle
In 2008, Carlock stopped paying employees overtime, although Vaughn got some of the money due to her after complaining to dealership managers.
In April 2009, she used a fictitious name to call the Nissan USA customer service hotline about customer complaints. Among them:
• Carlock offered a "Clean Sweep" program under which customers paid a fee to have their credit score "repaired" but the scores were not repaired.
• Carlock fraudulently added charges for items such as guaranteed asset protection plans and extended warranties that customers hadn't ordered.
• The dealership failed to pay off loan amounts due on trade-ins.
• Carlock sent mailings promising prizes that were never awarded.
Two months later, Vaughn phoned Nissan USA again, identifying herself as the previous caller and saying not all the employees responsible for misconduct had been fired. She lost her own job on the day the general manager discovered she was the complainant, the decision said.
Her suit for compensatory and punitive damages alleged federal labor and civil rights violations and wrongful termination.
Aycock dismissed all but Vaughn's overtime claim.
"There is no dispute" that making the complaints "factored into her termination," Aycock said. However, she said, Carlock presented a "legitimate non-retaliatory reason" for Vaughn's discharge, namely that her position was no longer necessary "in light of the economic downturn" and the company's desire to cut costs.
Aycock also found insufficient evidence that Vaughn was fired for reporting criminal activity. Vaughn failed to provide substantial evidence that the dealership could be held criminally liable for its alleged actions, the judge said. For example, there was no proof any document was forged or criminally altered or that misconduct was "anything more than human error or negligence," she said.
Similarly, Aycock said there wasn't enough proof of mail fraud in connection with the questioned prize promotion or of false pretenses in connection with Carlock's "Clean Sweep" program. Nor was there evidence that Vaughn was fired in retaliation for complaining about unpaid overtime, she said.
Dealer lawyer Roechelle Morgan of Tupelo said she could not comment on the case.
The plaintiff's lawyer did not respond to requests for comment.
You can reach Eric Freedman at freedma5@msu.edu.
