Jarmilia Booker v. Gte.net LLC

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0427P (6th Cir.)
File Name: 03a0427p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JARMILIA BOOKER,
Plaintiff-Appellant,
v.
GTE.NET LLC, et al.,
Defendants-Appellees.
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No. 02-6190
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 02-00009—Joseph M. Hood, District Judge.
Argued: September 30, 2003
Decided and Filed: December 5, 2003
Before: MERRITT, MARTIN, and DAUGHTREY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Willie E. Peale, Jr., PEALE LAW OFFICE,
Frankfort, Kentucky, for Appellant. Kevin D. Finger,
GREENBERG & TRAURIG, Chicago, Illinois, for
Appellees. ON BRIEF: Willie E. Peale, Jr., PEALE LAW
OFFICE, Frankfort, Kentucky, for Appellant. Kevin D.
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1The text of the electronic message stated:
[Verizon customer],
I would just like to take a moment and tell you how
disgusted I am that someone would waste so much time
over INTERNE T ACCESS! You sir are pathetic and I
would greatly appreciate it if you would take me OFF
of your ridiculo us email list! If you are having this
much trouble getting INT ERN ET ACCE SS, then go
through ano ther co mpa ny. This is not a difficult thing
to understand. The whole reason we de-regulate such
things is to give you, the customer, the opportunity for
more selection.
I sympathize with you over your troubles, but come
on [Verizon customer], why don’t you put on your
pampers and ask for your bobba OR cancel the service
altogether! Your repeated emails lambasting people for
doing the job for which they were train ed to do is
Finger, GREENBERG & TRAURIG, Chicago, Illinois, for
Appellees.
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OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Jarmilia Booker
appeals the district court’s decision to dismiss her complaint
with prejudice pursuant to Federal Rule of Civil Procedure
12(b)(6). Concluding that her claims are without merit, we
AFFIRM the district court’s dismissal.
I.
On February 8, 2001, Booker, a long-time employee of the
Office of the Attorney General for the Commonwealth of
Kentucky, received a letter from her supervisor. The letter
demanded an explanation for an electronic message that
Booker apparently authored and sent from a personal account
bearing Booker’s name.1 As the district court noted, the

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No. 02-6190 Booker v. GTE.net LLC, et al. 3
baseless and p etty. You sir are a grumpy, horrible man
who needs to grow up and realize that you are on earth,
not some crazy place where everything works out for
[Verizon custom er] and compa ny!
Frankly, I hope you NEVER get this internet service
and sit on perpetual hold, waiting for a “live” human to
answer the phone.
[Verizon Customer], if you want to waste precious
time spreading libel around about Verizon, which by
the way is illegal, then that is your business. Please
stop se nding me these despicable em ails at once!!
Sincere ly,
Mrs. Booker
electronic message’s tone was “rude and critical of the
recipient.” Apparently the message was transmitted in
reaction to the recipient’s numerous complaints about his
internet service that he had forwarded to–among others–the
Office of the Attorney General for the Commonwealth of
Kentucky
An investigation of the origins of the offensive electronic
message uncovered that a Verizon employee, not Booker,
authored the message. Thus, no disciplinary action was taken
against Booker. Booker, however, claims that she was
traumatized by the entire incident and suffered emotional and
psychological injuries, which prompted her to file a complaint
with the district court. The complaint filed against GTE.net,
doing business as Verizon Internet Solutions, alleged
violations of the Racketeering Influenced and Corrupt
Organizations Act and Washington state statute 19.190.020
and 19.190.030, as well as claims for failure to supervise,
intentional infliction of emotional distress, civil conspiracy
and libel. The district court dismissed all of her claims
pursuant to Federal Rule of Civil Procedure 12(b)(6).
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Booker filed this timely appeal challenging the district
court’s dismissal of her vicarious liability and negligent
supervision claims. On appeal, it is unclear whether Booker
has challenged the district court’s dismissal of her
Racketeering Act and Washington state statutory claims.
Regardless, we find that Booker has waived her right to
appeal the dismissal of these claims because she has failed to
provide any legal argument to demonstrate that the district
court erred in its dismissal of these claims. See Ewolski v.
City of Brunswick, 287 F.3d 492, 516-17 (6th Cir. 2002)
(noting that a failure to provide a legal argument on an issue
in a brief presented to this Court is considered a waiver of
appeal of that issue).
II.
This Court reviews de novo a district court’s dismissal of a
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). See Greenberg v. Life Ins. Co. of Virginia, 177 F.3d
507, 514 (6th Cir. 1999).
A.
Kentucky law recognizes that an employer can be held
liable for the negligent supervision of its employees. See
Smith v. Isaacs, 777 S.W.2d 912 (Ky. 1989). In recognizing
the tort of negligent supervision, Kentucky has adopted the
Restatement (Second) of Agency § 213 which illustrates the
requirements for establishing a claim of negligent
supervision. Id. at 914. As the commentary and illustrations
following the Restatement clarify, an employer may be held
liable for negligent supervision only if he or she knew or had
reason to know of the risk that the employment created. See
RESTATEMENT (SECOND) OF AGENCY § 213 (1958)
(Comment & Illustrations).
In this case, Booker’s amended complaint is devoid of
“either direct or inferential allegations with respect to all
material elements necessary,” Greenberg, 177 F.3d at 515, to

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No. 02-6190 Booker v. GTE.net LLC, et al. 5
recover under the theory of negligent supervision.
Specifically, Booker’s complaint failed to allege that Verizon
knew or should have known that the employee who drafted
the electronic message would act as he or she did. While
Booker alleged that Verizon had a duty to supervise its
employees and that it failed to satisfy this duty, this Court is
not bound to accept bare legal conclusions unsupported by
factual allegations. See In re Sofamore Danek Group, Inc.,
123 F.3d 394, 400 (6th Cir. 1997) (“Nevertheless, our
standard of review requires more than the bare assertion of
legal conclusions. We need not accept as true legal
conclusions or unwarranted factual inferences.”) (internal
citations and quotations omitted). Absent such knowledge,
Verizon cannot be held liable for negligent supervision, and
Booker has failed to state a claim upon which relief can be
granted. Moreover, a plain reading of Booker’s complaint
does not support her assertion that her complaint inherently
alleged knowledge. Thus, accepting all “well-pled allegations
of the complaint” as true, we find no error in the district
court’s dismissal of Booker’s negligent supervision claim.
B.
Booker also challenges the district court’s dismissal of her
vicarious liability claims. Specifically, Booker challenges the
dismissal of her intentional infliction of emotional distress,
civil conspiracy and libel claims, which are all premised upon
Verizon’s vicarious liability for the tortious conduct of its
employees.
Under certain conditions, an employer will be vicariously
liable for the torts of its employee. See Osborne v. Payne, 31
S.W.3d 911 (Ky. 2000). “The critical analysis is whether the
employee or agent was acting within the scope of his
employment at the time of his tortious act.” Id. at 915.
Generally, intentional torts are committed outside the scope
of the employment. However, some intentional conduct is so
closely related to the employment that it is considered within
the scope of employment. The question of whether an
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employee’s conduct is within the scope of employment is a
question of law, and the proper law to apply is the state law
of Kentucky.
This Circuit, after careful review of Kentucky law, has
developed certain guideposts to determine whether conduct is
within the scope of employment. See Coleman v. United
States, 91 F.3d 820 (6th Cir. 1996). The district judge,
coincidently the same judge who decided the district court
decision in Coleman, found the guideposts “an excellent
analytical tool” and, thus, applied them to the instant case.
First, Kentucky courts consider whether “the conduct was
similar to that which the employee was hired to perform.”
Coleman, 91 F.3d at 824. The district court concluded that
Booker had established this element because the Verizon
employee who sent the offensive message was allegedly a
customer affairs representative hired to respond to customer
complaints. While not explicit in the complaint that the
offensive Verizon employee was hired for the purpose of
responding to customer complaints, we find that one may
infer from the complaint an attempt to allege such similar
conduct. Accordingly, we conclude that the unnamed
Verizon employee’s conduct “was reasonably incident to [his
or her] employment.” Coleman, 91 F.3d at 825.
Second, Kentucky courts consider whether “the action
occurred substantially within the authorized spacial and
temporal limits of the employment.” Coleman, 91 F.3d at
824. Again, although the complaint fails to allege specifically
that the offensive conduct occurred on Verizon’s premises
during working hours, we conclude that allegations were
sufficient to support the inference that the employee
committed the conduct “within the authorized spacial and
temporal limits of the employment.” Indeed, the electronic
message’s time stamp indicates that the unnamed employee
sent the message on a Monday at 4:04 p.m. - ostensibly
during working hours. Thus, we agree with the district

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No. 02-6190 Booker v. GTE.net LLC, et al. 7
court’s conclusion that Booker has established this second
factor.
Third, Kentucky courts consider whether “the action was in
furtherance of the employer’s business.” Coleman, 91 F.3d
at 824. Booker argues that the text of the message attempts
to “influence the customer to continue using [Verizon’s]
product,” or to discontinue his complaints, and, therefore, that
it was calculated to advance Verizon’s business. This
argument is unsustainable. The text of the message clearly
suggests that the recipient should discontinue his service with
Verizon. See supra, note 1 (“[W]hy don’t you put on your
pampers and ask for your bobba OR cancel the service
altogether!”); id. (“If you are having this much trouble getting
INTERNET ACCESS, then go through another company.”).
Although this Court is bound to take all well-pled facts as
true, it is not bound to accept unwarranted factual inferences.
See Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th
Cir. 1987). The pleadings taken as a whole, which includes
the text of the electronic message, do not support the
conclusion that the offensive message was intended to benefit
Verizon’s business. See Greenberg, 177 F.3d at 514
(allowing consideration of documents not included in the
complaint, but central to the plaintiff’s claim, to be
considered on a Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss, without converting the motion into a
summary judgment decision).
Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000), is instructive
on this issue. In Osborne, the plaintiff brought charges
against a priest, Osborne, for the tort of outrageous conduct
arising out of an extra-marital affair with the plaintiff’s wife,
and against the diocese under a vicarious liability theory for
the negligent screening, supervision, and training of Osborne.
Id. at 913. In granting summary judgment in favor of the
diocese, the court held that even though Osborne was engaged
in marital counseling, a typical pastoral function, the scope of
the employment clearly did not include adultery. Id. at 915.
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The same argument applies in this case by way of analogy.
Although the unnamed employee was engaged in typical
employment duties–responding to customer complaints–the
employee stepped outside the scope of the employment by
sending a highly offensive response to a customer complaint
that cannot plausibly be interpreted as designed to advance
Verizon’s business goals. Moreover, the fact that the
employee sent the electronic message from a personal
electronic mail account, rather than from the business
account, itself demonstrates that the employee contemplated
that such action would be inappropriate if committed within
the scope of his or her employment.
Furthermore, although Booker argued both in her brief and
at oral argument that the employee’s actions were calculated
to advance the cause of Verizon in pacifying disgruntled
customers, we conclude that such an argument cannot be
sustained. Undoubtedly, Verizon desires to quiet customer
complaints. We cannot agree, however, that it is beneficial to
Verizon’s business to pacify customer complaints through the
methods employed here, i.e., through the implicit threat of
lawsuits and the offensively-worded suggestion that the
customer discontinue his business with Verizon. Thus, we
find that this factor weighs heavily in favor of Verizon.
Fourth, Kentucky courts consider whether “the conduct,
though unauthorized, was expectable in view of the
employee’s duties.” Coleman, 91 F.3d at 824. The district
court concluded that “creating false third-party e-mail
accounts and sending intentionally-offensive e-mails is not
expected from company employees.” We agree and find no
need for further elaboration on this point.
In sum, we find Booker’s vicarious liability claims fatally
flawed. An employer simply cannot be held liable “under the
doctrine of respondeat superior unless the intentional wrongs
of the agent were calculated to advance the cause of the
principal or were appropriate to the normal scope of the
operator’s employment.” Osborne, 31 S.W.3d at 915.

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No. 02-6190 Booker v. GTE.net LLC, et al. 9
Finding no such action here, we conclude that the district
court did not err in dismissing Booker’s vicarious liability
claims.
Accordingly, we AFFIRM the decision of the district court
dismissing Booker’s vicarious liability and negligent
supervision claims.

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