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Trial ordered in employment dispute at Navy’s cybersecurity school

A company that provides cybersecurity training at the Navy’s Joint Cyber Analysis Course in Pensacola will get a trial on its claims that four employees violated an agreement not to seek work with other subcontractors at the school.

The 1st District Court of Appeal reached that conclusion this week, overturning Circuit Judge John Miller of Pensacola.

Miller accepted at face value claims that Epsilon Inc. had initiated job offers to Paul Hutchinson, Kurt Bernard, Jasper Stone, and Michael Flemming.

They were cybserscecurity instructors who’d signed non-solicitation agreements with their employer, Convergent Technologies Inc., or CTI.

Such agreements, similar to non-compete agreements, provide that employees won’t actively seek jobs with their companies’ competitors.

The 1st DCA, in an unsigned opinion, ruled that the record wasn’t clear that Epsilon had reached out to the four instructors. The court noted that Hutchinson had complained about his unhappiness with CTI to an Epsilon employee, and mentioned that co-workers were also unhappy.

That raised a “reasonable inference” that Hutchinson “might have been complaining just a little too loudly about employment woes with CTI in a working environment where everyone involved knew there was more than one subcontractor on the job to hear their protests,” the court said.

“Furthermore, Hutchinson’s round-up of the other three appellees also is subject to a reasonable inference that there might have been a concerted plan to leave CTI for Epsilon.”

Simply interpreting the language in their employment contracts would not settle the questions, the court continued.

“Instead, whether the terms of the non-solicitation agreements were violated here is largely predicated on the inferences to be drawn from the facts of appellees’ behavior prior to, and during, their negotiations with Epsilon,” it said.

“On that point, we hold that the facts contained in the depositions, affidavits, and other papers of record are not so crystallized that nothing remains but questions of law.”

The court criticized Miller for citing an Indiana state court precedent in his ruling, declaring that it’s own precedents governed the case.

“We conclude that whether a defendant’s behavior is proactive presents a question of fact for the trier of fact” — that is, in a bench or jury trial — the court said.

The panel comprised judges Harvey Jay, Scott Makar, and Timothy Osterhaus.

Written By

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

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