After his company was acquired, plaintiff was informed in April of 2005, that a friend and colleague had been terminated because he refused to accept a lower wage in his new position within the new company structure.

In response to this action, plaintiff testified that he was very upset and wanted to tell his bosses how he and the rest of the team felt about his friend’s termination. In order to do so, plaintiff opened the door to the conference room in which his bosses were seated, and walked in. Once in the conference room, plaintiff asked the two men if he had a non-compete agreement with the company. The bosses said that he did not, and plaintiff proceeded to unbuckle his pants, pull them down, and “moon” both men and walked out.

How did this even reach litigation?

Well, the management team initially decided to issue only a formal written warning. The formal warning actually lowered the “for cause” standard contained in the partnership agreement by stating that “you could be terminated if, at any time in the future, you violated any of the company’s standards in any aspect of his job.”  Plaintiff was given and signed the formal warning while his boss explained that the ultimate decision maker might make a different call.

When the chief executive officer of the company returned from vacation, Plaintiff was terminated from employment. Plaintiff lost in excess of $2 million in contingent partner payments when he was terminated.

Eventually, the Illinois Court of Appeals held in August of 2012, that the employee’s warning letter did not prohibit the partnership from terminating him for cause. The formal warning was not a waiver of the company’s right to discipline him for the mooning. It was not a promise of future employment. Selch v. Columbia Management.

The premature formal warning issued to the Plaintiff obviously created more problems than it solved when all decision makers were not consulted or advised of the action. Careful crafting of disciplinary action could have perhaps short circuited a creative plaintiff attorney’s shot at an effort to reverse what seems like common sense discipline.

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