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Employee Who Mooned Bosses Cannot Prevail on Breach of Contract Claim


Posted on Jan 01, 2016

On Wednesday, August 29, 2012, an Illinois appeals court upheld a finding that an employer did not commit breach of contract when it fired an employee for “mooning” two of the company’s senior executives. The employee, Jason Selch, pulled down his pants and mooned the two men during a meeting in Chicago in 2005. Selch was an employee at Wanger Asset Management when it merged with a subsidiary of Bank of America in 2005. According to reports, Selch was not happy when he learned that a friend of his, Chris O’Dea, had been fired after refusing to accept a lower compensation package following the merger.

When Selch learned of O’Dea’s dismissal, he went to the conference room where the senior executives were meeting. He first asked whether he had a non-compete agreement and was told that he did not. At that point, Selch mooned the men and told one of them, who was based in New York, that he never wanted to see the man in Chicago again.

Of note, Selch was not immediately fired but was instead given a formal warning. Unfortunately for Selch, when the subsidiary’s CEO, Brian Banks, learned of what had transpired, Banks insisted that Selch’s employment be terminated. As a result, Selch lost out on a multi-million dollar bonus that was contingent upon his remaining with the company for just a few months longer. Since the right to the bonus had not yet vested at the time of Selch’s termination, Bank of America was able to keep the money.

Selch filed a lawsuit against Bank of America alleging that his firing amounted to a breach of contract. He argued that the warning he had been issued stated that he could be fired if he misbehaved again in the future. He further argued that since the mooning did not interfere with his job responsibilities, he could not be fired for cause. The court, however, found in favor of Bank of America, stating that the mooning was “insubordinate, disruptive, unruly, and abusive.”

Contact a New York breach of contract lawyer today at (888) 497-3410 for more information about breach of contract and other business litigation matters.

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