Over the “Moon”: Court Approves Termination with Cause as Result of Employee’s Display of Derriere

| Jason M. Knott

Jason Selch had a way of getting to the bottom of things.

Selch, an investment analyst at Columbia Wanger Asset Management, L.P. (a company under Bank of America’s corporate umbrella), was upset after his employer fired his friend.  He went to find his boss, Charles McQuaid, and located him in a conference room with Columbia’s Chief Operating Officer.  He asked them if he was subject to a non-compete agreement. When the two said no, he “proceeded to unbuckle his pants, pull them down, and ‘moon[ed]’” them.  Selch v. Columbia Management, 2012 IL App (1st) 111434.

Once the mooning was complete, Selch’s bosses didn’t turn the other cheek. 

Instead, his “executive management group” issued him a formal written warning.  Selch signed the warning, which said he could be terminated in the future for violating any company standards.  Selch behaved himself for the next week, until Bank of America’s CEO, Keith Banks, returned from vacation.  When Banks found out about Selch’s display, he took matters into his own hands and fired Selch himself, despite McQuaid’s efforts to save Selch’s job. 

Selch had a severance agreement that entitled him to large payments – unless he was fired for “cause,” defined as “conviction of a felony, engaging in misconduct that injures the Company, performing your duties with gross negligence or any material breach of your fiduciary duties as an employee of the Company.”  Selch argued that this provision contemplated actions causing serious harm to the employer, not the mere harm resulting from a viewing of his hindquarters.  Columbia, meanwhile, argued that the mooning was an injury to the company, because it disrupted the work environment, impugned company leadership, and caused it to fire a productive employee (i.e., Selch – a bit circular, don’t you think?). 

Sadly for Selch, both the Illinois trial and appellate courts in which he pressed his claims lacked a sense of humor about the whole thing (cf. Joe Buck).  They agreed with Columbia, finding the mooning to be “a serious act of misconduct that injure[d] the company.”  Further, the formal written warning was not a contract that entitled Selch to one more chance, because it did not offer or promise him further employment; it merely expressed a “hope” that he wouldn’t misbehave again.