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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.

2 Booker v. GTE.net LLC, et al. No. 02-6190

1

The 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 INTERNET ACCESS! You sir are pathetic and I

would greatly appreciate it if you would take me OFF

of your ridiculous email list! If you are having this

much trouble getting INTERNET ACCESS, then go

through another company. 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 trained to do is

Finger, GREENBERG & TRAURIG, Chicago, Illinois, for

Appellees.

_________________

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
No. 02-6190 Booker v. GTE.net LLC, et al. 3

baseless and petty. 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 customer] and company!

 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 sending me these despicable emails at once!!

 Sincerely,

 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). 

4 Booker v. GTE.net LLC, et al. No. 02-6190

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
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

6 Booker v. GTE.net LLC, et al. No. 02-6190

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
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.

8 Booker v. GTE.net LLC, et al. No. 02-6190

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.
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.