United States District Court, S.D. Mississippi, Southern Division
BROWN AND BROWN OF MISSISSIPPI, LLC PLAINTIFF/ COUNTER-DEFENDANT
SHERRIE BAKER DEFENDANT/ COUNTER-PLAINTIFF
MEMORANDUM OPINION AND ORDER CONCERNING THE
PARTIES' MOTIONS FOR SUMMARY JUDGMENT
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
THE COURT are the Motions [60, 62] for Summary
Judgment filed by the plaintiff/counter-defendant Brown and
Brown of Mississippi, LLC (hereafter referred to as
“Brown”) and the Motion  for Summary Judgment
filed by the defendant/counter-plaintiff Sherrie Baker. In
its first Motion , Brown seeks summary judgment as to its
claims against Baker for injunctive relief, violations of the
Mississippi Uniform Trade Secrets Act, and tortious
interference with prospective business relations. In its
second Motion , Brown seeks summary judgment as to
Baker's counterclaims for: defamation/libel/slander,
interference with business relationships, breach of contract,
gender discrimination, age discrimination, retaliation, and
hostile work environment. In her Motion , Baker seeks
summary judgment as to Brown's claims for injunctive
relief, violations of the Mississippi Uniform Trade Secrets
Act, and tortious interference with prospective business
relations. The Motions have been fully briefed. After
reviewing the submissions of the parties, the record in this
matter, and the applicable law, the Court finds that
Brown's Motion for Summary Judgment as to its claims
against Baker should be denied. Baker's Motion for
Summary Judgment is granted as to Brown's claim for
injunctive relief but denied in all other respects.
Brown's Motion for Summary Judgment as to Baker's
counterclaims is granted.
January 1999, Baker began working at Sawyer Foster Insurance,
where she specialized in selling health benefits insurance.
(Baker Resp., Ex. A at 2, ECF No. 76-1). Sawyer Foster
Insurance was purchased by Beecher Carlson in May 2006, and
Baker signed an Employment Agreements that provides:
At all times during Executive's employment and during the
Restricted Period, Executive hereby expressly covenants and
agrees that she will not, on her own behalf or on behalf of
any other person, company, partnership, corporation or other
entity, solicit, divert, or take away Business from any
Customer of Employer for the purpose of providing insurance
brokerage, risk management, or related consulting services
that are competitive with the Employer's Business.
(Id.; Brown Mot., Ex. 1 at §7(f), ECF No.
63-2). The term “Restricted Period” in the
Agreement “means a period of two (2) years following
termination of Executive's employment with the Company,
regardless of the reason for the termination.” (Brown
Mot., Ex. 1 at 6 § 7(a)(i), ECF No. 63-2). The Agreement
further provides “The Company, may, without
Executive's consent, assign this Agreement to any
affiliate or any successor to its business.”
(Id. at § 12).
purchased the agency from Beecher Carlson on or about July 1,
2013. (Baker Resp., Ex. A at 3, ECF No. 76-1). In February
2014, Brown promoted Baker to the position of Profit Center
Leader with a salary of $125, 000 plus bonuses for meeting
profit goals. (Id.) Baker claims that Thomas Sawyer
- one of the agency's former owners who continued to work
at the agency after it was purchased by Beecher Carlson and
Brown - began verbally abusing her and acting hostile toward
her after she was promoted. (Id.) Baker served as
Sawyer's supervisor and she had the authority to
terminate him, but she claims that one of Brown's
regional managers discouraged her from terminating Sawyer.
(Brown Mot., Ex. 46 at 19-34, ECF No. 63-47).
January 26, 2015, Brown's regional manager informed Baker
that she would no longer serve as profit center leader.
(Baker Resp., Ex. A at 3, ECF No. 76-1). Brown's regional
manager testified that the Gulfport, Mississippi office no
longer needed a separate profit center leader because the
Gulfport office was consolidated with its New Orleans office.
(Brown Mot., Ex. 6 at 103, ECF No. 63-7; Brown Mot., Ex. 50
at 23, ECF No. 63-51). After that point, Mark Pennebaker
served as profit center for the New Orleans and Gulfport
offices. (Brown Mot., Ex. 6 at 128, ECF No. 63-7).
she was removed from the profit center leader position,
Baker's salary was $100, 000 with a thirty percent
commission rate on new business. (Brown Mot., Ex. 8 at 2, ECF
No. 63-9). Baker claims that she was excluded from meetings
and communications and she was asked to introduce an agent
newly hired by Brown to her clients. (Baker Resp., Ex. A at
8, ECF No. 76-1).
2015, Baker filed documents with the Secretary of State to
create her own agency, Coast Benefit Professionals, LLC.
(Id. at 8). On June 29, 2015, Baker's assistant
Samantha Gunter Wilson resigned her position with Brown effective
July 10, 2015. (Brown Mot., Ex. 12, ECF No. 63-13). Six days
earlier, Wilson had emailed her contact list - which included
Wilson's personal contacts as well as the contact
information, user names and passwords of some of Brown's
customers - from her Brown email address to her private email
address. (Brown Mot., Ex. 14 at 42, 45, ECF No. 63-15).
Wilson sent additional Brown customer information to her
private email address on July 6, 2015. (Id. at 59).
She sent a customer's contract with Brown to Baker's
private email address on July 7, 2015. (Id. at
66-68). Wilson testified that she sent the contract to Baker
pursuant to Baker's request. (Id.) Wilson
testified that these emails were probably sent because Wilson
and Baker were continuing to provide services to clients on
behalf of Brown and occasionally they worked from home.
(Id. at 71). However, Wilson admitted that these
particular customers became customers of Baker's agency.
(Id. at 59, 69).
6, 2015, Baker wrote a letter to Brown resigning her position
effective July 17, 2015. (Brown Mot., Ex. 15, ECF No. 63-16).
As early as July 10, 2015, Baker had emailed an announcement
concerning her new agency to various individuals. (Brown
Mot., Ex. 14 at 2-4, ECF No. 63-15). On July 13, 2015, Baker
sent an email to a Brown client, but the signature line of
the email referenced Baker's new agency, not Brown.
(Brown Mot., Ex. 16 at 6, ECF No. 63-17). On July 22, 2015,
after Baker's resignation went into effect, a
representative of another Brown client noted in an email that
Baker was going to submit a quote for the customer's
business and that Baker had access to all of the
customer's data. (Id. at 9). Another client
email revealed that Baker was using the same fee structure as
Brown. (Id. at 11). Wilson began working for
Baker's agency in August 2015. (Brown Mot., Ex. 17 at 7,
ECF No. 63-18).
24, 2015, Baker filed a charge for gender and age
discrimination with the Equal Employment Opportunity
Commission's Jackson, Mississippi office. (Brown Mot.,
Ex. 18, ECF No. 19). The basis of the charge was Brown's
alleged demotion of Baker on January 26, 2015. (Brown, Mot.,
Ex. 20, ECF No. 63-21). Brown received notice of the charge
on July 8, 2015. (Brown Mot., Ex. 19, ECF No. 63-20). The
EEOC provided Baker with notice of her right to sue Brown on
October 20, 2015, and instructed her that her lawsuit must be
filed within ninety days of receipt of the notice. (Brown
Mot., Ex. 27, ECF No. 63-28).
24, 2015, Brown sued Baker in the Second Judicial District of
the Chancery Court of Harrison County, Mississippi, alleging
violations of the Mississippi Uniform Trade Secrets Act and
Tortious Interference with Prospective Business Relations.
The Chancery Court awarded summary judgment to Brown
“to the extent that Ms. Baker signed a binding
employment agreement with [Brown].” (Brown Mot., Ex. 32
at 171, ECF No. 63-33; State Court Record at 288-89, ECF No.
November 17, 2015, Baker filed a second charge of
discrimination with the EEOC's Mobile, Alabama office,
alleging constructive discharge, gender discrimination, age
discrimination, retaliation, and hostile work environment.
(Brown Mot., Ex. 29, ECF No. 63-30). She claimed that the
discrimination took place between January 26, 2015, and July
6, 2015. (Id.)
August 11, 2016, Baker filed counterclaims against Brown for
defamation/libel/slander, interference with business
relationships, breach of contract, gender discrimination, age
discrimination, retaliation, and hostile work environment.
(Am. Mot. to Dismiss, Answer & Affirmative Defenses &
Counterclaims, ECF No. 1-1). Brown removed the case to this
Court on the basis of federal question jurisdiction created
by some of the counterclaims.
motion for summary judgment may be filed by any party
asserting that there is no genuine issue of material fact and
that the movant is entitled to prevail as a matter of law on
any claim. Fed.R.Civ.P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and
discovery on file, together with any affidavits, which it
believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Once the movant carries its burden, the
burden shifts to the non-movant to show that summary judgment
should not be granted. Id. at 324-25.
BROWN'S CLAIMS AGAINST BAKER
MISSISSIPPI UNIFORM TRADE SECRETS ACT
Mississippi Uniform Trade Secrets Act (MUTSA) provides:
“Except to the extent that a material and prejudicial
change of position prior to acquiring knowledge or reason to
know of misappropriation renders a monetary recovery
inequitable, a complainant is entitled to recover damages for
misappropriation [of trade secrets].” Miss. Code Ann.
§ 75-26-7(1). If the misappropriation is willful and
malicious, the court may award punitive damages and
attorneys' fees. Miss. Code. Ann. § 75-26-7(2);
Miss. Code Ann. § 75-26-9.
“trade secret” is defined as:
information, including a formula, pattern, compilation,
program, device, method, technique or process, that: (i)
[d]erives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and (ii)