1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0427P (6th C ir.) File Name: 03a04 27p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J ARMIL IA B OOKER ,

Plaintiff- Appellant

,

v.

GTE. NET LL C, et al., Defenda nts-Appe llees. X - - - -
> , - - N No. 02-6190

Appeal from the United States District Court for the E astern D istrict of Kentuck y a t Frankf ort. No. 02-00009—Joseph M. Hood, District Judge. Argued: September 30, 2003
Decided and Filed: December 5, 2003

Befor e: MERRI TT, MARTI

N, and DA

UGHTREY , Circuit Judges.

_________________ COUNSEL

ARGUED: Willie E. Peale, Jr., P EALE LAW OFFI CE, Frankf ort, Kentucky, for

Appellant. Ke vi n D. Finger, GREENBE

RG & T RAURIG, Chicago, I llinois, for Appellee s. ON BRI EF: Wi ll ie E . P eal e, J r., PE ALE LAW OFFICE, Frankf

ort, Ken tu ck y, for Appellant. Kevin D. 2 Booker v . GTE.net L

LC, et al. No. 02-6190

1 The tex t of

the ele ctr onic messa ge st ated:
[Verizon customer], I would just l ike to take a moment and tel l y ou how disgus ted I am that

some one w oul d was te so mu ch t ime

over INTERNE T ACCESS! You sir are p athetic and I

wou ld grea tl y appr ecia te i t i f y ou woul d tak e me OFF of yo ur r idiculo us em ail list! If you are h aving th is much trouble getti ng INT ERN ET ACCE SS, then go throu gh ano ther co mpa ny. Th is is not a dif ficult thing to understand. The whole re ason we de-regu late such things is to give you, t

he customer, the opportu nit y f or more selection. I s ympat

hize wit h you over your troubles, but come
on [Verizon customer], why don ’t you put on y our pampers and ask for your bob ba O R cancel t he servi ce altogether! Yo ur rep eated ema ils lamb asting p eop le for doing the job for whic h they w ere train ed to do is Finger, GREENBERG & TRAURIG , C hicago, Illinois, for Appellee s.

_________________

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 C ivil P rocedure 1 2(b)(6). Concludin

g that he r claims a re withou t m erit, w e AFFI RM the distr

ict cour t’s dismissa

l.

I.

OnFebruary

8, 2001, Booker , a long -time employee of the Office of the Attorney G en er al for the Commonwealth of Ke nt uc ky, received a letter from her super v iso r. The letter demanded

an exp lanation for an electronic message that Booker apparently a

uthored and sent from

a personal account bearing Booker’s name. 1 As the di strict court noted, theNo. 02-6190 Booker v . GTE.net L

LC, et al. 3

baseless and p etty. Yo u sir are a grum py, horribl e man who needs to grow up and realize that you are on earth, not some cr azy pl ace wh ere ev ery thi ng works out for [Ve rizon custom er] an d co mpa ny! Frank ly, I hope you NEVER get thi s int ernet servi ce and sit on perpetual hol d, waiting for a “live ” hum an to answer t he phone. [Veri zon Cus tomer ], i f y ou want to wa ste preci ou s ti me spre ading li bel a round a bout Ver izon, whi ch by the way is illegal, t

hen that is your business. Please stop se nding me the se de spica ble em ails at on ce!!

Sincere ly,

Mrs. Booker electronic message’s tone was “rude a nd critical of the recipient.” Appare

ntl y the messa

ge was transmitte d in
r eaction to the recipient’s numerous complaints abo ut hi s internet ser vice that he had forwarded to–among others–the O ff ice of the Attorney G eneral for the Commonwealth of Ke nt uc ky

Aninvestigation of the o rigin s of the of fensive electronic
messa ge uncovere d t hat a Verizon employee , not Booker, authored the messa

ge. Thu s, no disciplinary action wa s taken agains tBooker . Booker , howeve r, claims th at she was traumatized

by the entire

incident and

suffered emotional and psych ological injuries, which prompted her to file a complaint with the distri ct court . The com plaint fil ed aga

inst GTE.net, doing business a s Veriz on I nternet Solutions, alleged violations of the Racketeering I nfluenced and Corrupt Organizations Act and Washing t on state statute 19.190.020 and 19.190.03 0, as wel l as claim s for failure to supervise, intentional infliction of emotional distress, ci vil conspiracy andlibel. The district court dismissed all of her claim s pursuant to Federal Rule of Civil Procedure 12(b)(6). 4 Booker v . GTE.net L

LC, et al. No. 02-6190

Booker filed this

timely appeal c hall engi ng the district court’s dismissal o f her vic arious l i ability and negligent supervisionclaims. On appeal, it is unclear whether Booker has challen

ged the district c ourt’s di smissal of her Racketeering

Act and Wa shington

state sta tutory claims. Regar dless, we fi nd that Booker has waiv ed her r

ight to appeal the dismiss al of the se claims because she has f ailed to provide any leg al argument to de monstrate that the district court erred i n its dismi ssal 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 ina brief presented to this Court is considered a waive r of appeal of that issue).

II

. This Court reviews de novo a district court’s dismissal of a complaint pu rsua nt to Federal Rule of Civil Procedure 12(b)(6). See Gre enberg v . Life Ins. Co. of Virgin ia , 177 F.3d 507, 514 (6th Cir. 1999).

A. Kentucky law recognizes that an employ er can be held liablefor the negligent supervision of its employees. S ee Smith v. Isaacs , 777 S.W.2d 912 (Ky. 1989). I n recognizing the tort of negligent

sup ervision, Kentucky ha s adopted the Restatement (Second) of

Ag en cy § 213 which illustrates the req uir ements for establishing a claim of neglig ent supervision. Id. at 914. As the commentary and illustrations following the Resta

teme nt clarify

, an employe

r may be held liablefor negligent supervision only if he or she knew or had
reason to know of

the risk that the employment crea ted. See R ESTATEMENT (S ECOND ) OF A GE NCY § 213 (1958) (Comment & Illustrations).

Inthis case , Booker ’s amend ed compla

int is devoi d of “either direct or infere

nti al allega

tions with r

espect t o all material elements necessary ,” Greenbe rg , 177 F.3d

at 515, toNo. 02-6190 Booker v . GTE.net L

LC, et al. 5

recover under the theory

of negligent super

vi sion. Sp ec if ic al ly, Booker’s complaint failed to allege that

Verizon knewor should have known that the employee wh o drafted the electronic message would act as he or sh e did. While Booker alle ged that V erizon h ad a duty to superv

ise its employees and tha

t it failed to satisfy

this duty, this Court is not bo und to accept bare legal conc lusions unsupported b y factual allegations. See In re Sofa m ore Danek Group, Inc. , 123 F.3d 394, 400 (6th Cir. 1997) (“Nevertheless, our standard of review requires more than the bare assertion of legal conclusi ons. We nee d not acc ept as t rue legal conclusi on s or unwarranted factual infere nces.”) (internal citations and quotations omitted). Absent such kno wledg e, Verizoncannot be held liable for neglige nt supervision, and Booker has faile d to state a

claim upon which relief can be gr anted. Moreover, a plain reading of B ooker’s compl ain t does not supp ort her asse rtion that her comp laint inhe

rently alleged knowledge. Thus, accept

in g all “well-pled allegations of the complaint” as true, we find no error in the district court’s dismissal o f Booke

r’s neg ligent s

upervisi on claim.

B.
Booker also challenges the district court’s dismissal of her vicarious liability claims. Specifically , Booker challenges the d ismi ssal of her in

tentiona l infliction of emotional distre ss, civilconspiracy

and libel claims, which

are all premised upon Verizon’s vicarious liab ility for the tortious co nduct of i ts employees.
Under certain condition s, an empl oye

r will be vicariou sly liablefor the torts of

its employee. See Osbornev. Payne , 31 S.W.3d 911 (Ky . 2000). “ The crit ical ana lys is is whether the employee or agent was acting within the scope o f his
em p loyment at the time of his tortious act.” Id. at 915. Ge ne ra ll y, intentiona

l torts ar e committed outside the scope of the emplo yme

nt. Howev er, some

intentional conduct i s so closely related to the emp loy

ment that i

tis considered

within the scope of employme nt. The q

uest ion of whether an 6 Booker v . GTE.net L

LC, et al. No. 02-6190

employee’s

con duc t is within the scope o f employ ment is a question of law, and the proper law to apply is the state law of Kentucky.
This Circuit, a ft er careful review of Ke ntucky law, has developed

certain guideposts to determine whether conduc tis within the scope of employ

ment. See Coleman v. United States , 91 F.3d 820 (6th C ir. 1 996). The district judge, coincide ntly the same judge who deci de d the district court decisionin Coleman , found the guideposts “an excellent analytical tool” a

nd, 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 , 9 1 F.3d at824. The district court concluded that Booker had estab lishe d this element because the Verizon
em pl oye e w ho se nt th e o ff en si ve me ss ag e w as al le ge dl y a customer affairs repre sentative

hired torespond to customer complain ts. While not explicit in the compl ain t that the offensive Verizon employee wa s hire d for the purpose of responding to customer com plaints, we find that one may infer f rom the complaint an attempt to allege such similar conduct. Accord

ingly, we conc lude th at th e unnamed Verizonemploy

ee’s conduct “w as reas onably incident to [his or her] employment.” Coleman , 91 F.3d at 825. Second, Kentucky c ourts consider whethe r “th e action occurred substantially within the authorized spa cial and temporal limits of the employment

. ” Coleman , 91 F.3d at 824. Again, althoug

h the comp laint fai ls to allege specific ally that the offensive conduct occurred on Ve rizon’s premi ses during working hours, we c on clude that allegations were sufficient to support the infere nce th at the employee committed

the conduct “within the aut horized spacial and temporal limi ts o f the emp loy ment.” I ndeed, the elect

ronic message’s time stamp indicates that the unnamed employe e sent the message on a

M onday at 4:04 p.m . - ostens ibly during working hours. Thus , we agree with the districtNo. 02-6190 Booker v . GTE.net L

LC, et al. 7

co urt’s conclusion that Booker has established this secon d factor. Third, Kentucky

courts consider whether “the action wa s in furtherance of the employer ’s business.” Co leman , 91 F.3d at 824. Boo ker arg

ues that the text of the

messag e attempt s to “influence the cu stom er to con tinue usin

g [Verizon’s] product,” or to discontinue his complaints, and, therefore, that it was calc

ulate d to advanc e Verizon ’s busine ss. This argument is unsustainable. The text of the messag e clearly sugge sts that the recipient should discontinue his service with Verizon. See supra , no te 1 ( “[ W] hy d on ’t yo u put on your pampers and ask for y

our b obba OR

cancel the service altogether!”); id. (“I f you are ha ving this much trou

ble getting INTERNET

ACCESS, then go thro ugh another company .”). Althoug h this Court is bound to take all well-pled facts as true, it is not bound

to accept unwarr anted fa ctual inf erence s. See Morgan v. Church’s Fried Chicken , 829 F.2d

10, 12 (6th Cir. 1987). Th e p leadings taken as a whole, which includes the text of the electronic message, do not supp ort the conclusionthat the offensive message wasintended to benef it Verizon’s bu siness. See Gre enberg, 177 F.3d at 514 (allowing co nside ration of documents not included in the complain t, but central to the plaintiff’s claim, to be considered

on a Federal Rule of Civil Procedur e 12( b)(6) motion to dismiss, w

ithout con

verting the moti on int o a summary judgme

nt decision).
Osborne v. Payne , 3 1 S .W .3 d 9 11 (K y. 2000), is instructive
on this issue. In Osborne , the plaintiff brought charges agains ta priest, Osborne , for the tort of outrageous conduct arising out of an extra-marital affair with theplaintiff’s wife, and against the diocese un der avicarious liability theory for the negligent screening , supervision, and training of Osborne. Id. at 913. In g

ranti ng summary

judgment in favor of the diocese, the court

held t hat ev en tho ugh Osborne was engage d inmarital counseling, a ty pical pastoral function, the scope of the employment clear

ly did not includeadultery. Id. at 915. 8 Booker v . GTE.net L

LC, et al. No. 02-6190

The same argument applies in this case by wa y of an al og y. Alth ough the unnamed employe e was engaged in typical employment

duties–responding to customer complaints–the employee stepped outside the scope o f the employment by sending a highly off

ensive response to a customer complaint that cannot plausibly be interprete d as designed to advance Verizon’s business goals. Moreover, t he fact that the employee sent the e lectronic m essage from a personal electro nic mail account, rather t h an from the busines s accoun t, itself demonstrates that the employee c ontemplated that suchaction would be inappropriate if committed within the scope of his or her employ ment. Furthermore, although Booker argue d both in her brief and at oral argument that theemployee’s a ctions were calculated to advanc e the ca

use of Ve

riz on i n pacifying

disgruntled customers, we conc lu de that such an argument cannot be sustained. Undou

btedly , Verizon desires to quiet customer complain ts. We cannot

agree , howeve

r, that it i s benefi cial to Verizon’s business t

o pacify customer complain ts throu gh the methods employed here , i.e. , thro ugh the implicit threat of lawsuitsand the offensively-worded suggestion that the
cu sto mer discontinue his business with Verizon. Thus, we find that this factor weighs heavily in favor of Verizon.

F ou rth, Kentuck

y c ourts con sider whe

ther “th e conduct, thou gh unauthorized, w as exp ectable in view of the employee’s

duties.” Cole man , 91 F .3d at 824. The district court con cl uded that

“crea ting fa lse third- party e-mail
accoun ts and sending intentionally- offensive e-mai ls is not expected from company e

mployees.” We ag

ree an d f ind no need for further elaboration on this point.

Insum, we find Boo ker’s vi carious liability claims fa tally flawed. An employ

er simply cannot be held liab le “under

the doctrine of respondeat superior unless theinten tion al wro ngs o f the agent were calcula

ted to advance the cause of the principal or were

appropr iate to the

normal sc ope of the operator’s employment.” Osborne , 31 S.W.3d at 915.No. 02-6190 Booker v . GTE.net L

LC, et al. 9

Finding no such a

ction her e, we conclude that the dist ric t
co urt did not er

r in dismiss ing Booker’s vi carious liabili t y claims.

Ac co rd in gl y, we AFF IRM the decision of the district court dismissing Book er’ s vicarious liability and negligent supervis ion claims

.