The Two-Million-Dollar Moon

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I believe it was Confucius who said: He who would moon a superior should first consider whether his profit-sharing plan has vested, but whoever said it, those were words of wisdom.

The plaintiff in Selch v. Columbia Management ignored them in 2005, when he learned that a friend and colleague had been fired for refusing to take a pay cut. Plaintiff had worked for the company for about 10 years, and was entitled to a lump-sum payment and two "contingent payments" that would be made over time as part of a profit-sharing plan. The important thing about the contingent payments is that they were contingent on not being terminated for cause. Which brings us to Part I.B.1 of the court's opinion, entitled:


On April 27, 2005, plaintiff was informed that a friend and colleague … had been terminated …. [P]laintiff testified that he was very upset and wanted to tell Sayler and McQuaid [the company COO and CIO respectively] how he and the rest of the team felt about [the] termination. In order to do so, plaintiff opened the door to the conference room in which Sayler and McQuaid were seated, and walked in. Once in the conference room, plaintiff … asked the two men if he had a noncompete agreement with the company. Sayler and McQuaid responded that plaintiff did not, and plaintiff proceeded to unbuckle his pants, pull them down, and "moon" Sayler and McQuaid…. Plaintiff then walked out of the conference room.

The two officers seem to have been mildly stunned by this. "Wow, I don't believe that just happened," one said, and "[t]he meeting then ended with no decision about what to do regarding plaintiff's 'mooning.'" Surprisingly, they decided to give plaintiff a warning letter rather than fire him. But when their boss "returned from vacation to learn of the 'mooning' that had occurred on April 27," he "expressed his surprise that plaintiff had not been terminated on the spot," and decided to fix that error.

Luckily for plaintiff, he did not have a noncompete agreement with the company, so he was not precluded from seeking other work in that field. Unluckily for plaintiff, "[a]s a result of [his] termination, he forfeited his Contingent Payments, which would have vested a few months after his termination."

Oh, I forgot to mention—the Contingent Payments he lost as a result of his impromptu mooning decision were worth about two million dollars.

The legal issue in the resulting lawsuit was whether plaintiff had been fired "for cause." The employment agreement defined "cause" for termination 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." While you could expect mooning to "cause" your termination, the question here is whether it fits within that definition, and it seems to me that plaintiff had a pretty good argument. The only category that could possibly fit (since mooning is not a felony in Illinois) is "engaging in misconduct that injures the company." Mooning your boss may be a really bad idea, but how does it "injure the company"?

Defendants argued it had done so by "impugning the status and credibility of the company's management; disregarding company interests in maintaining an orderly work environment; wasting the company’s resources in addressing the 'mooning' and its aftereffects; and causing the company to terminate a financially valuable employee (plaintiff)." I don't really buy any of that, especially the argument that plaintiff injured the company by "forcing" it to terminate him. Everything else in the list of "for cause" offenses seems pretty serious, so how does mooning fit in? Remember, this was not about whether he could be fired at all—Illinois is an "at-will" state, so employees can be terminated for any non-discriminatory reason. This was about whether a mooning was sufficient "cause" to cost him two million bucks. All the judges agreed that it was:

There is no ambiguity in these facts. The clear interpretation of plaintiff's behavior is that it was insubordinate, disruptive, unruly and abusive. Thus, the behavior caused injury to the company by undercutting the authority of plaintiff’s bosses … and disregarding company policies.… The clear conclusion here is that plaintiff was justly terminated for cause: for engaging in misconduct that injures the company. As such, plaintiff's misconduct, which injured the company, is sufficient to justify his termination for cause.

Seems pretty circular to me. The court cited cases holding that insulting a superior was cause for termination in other contexts, and that's certainly true in a general sense but here "cause" was defined to mean "injuring the company." I just don't see a real injury here.

But you know what else is circular? The moon. And it's hard to avoid the conclusion that these judges were just not too concerned about punishing somebody who was dumb enough to moon his boss. Understandable, I guess, but a million dollars per cheek seems a little over the top.