Booker v. GTE.net LLC ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Booker v. GTE.net LLC, et al. No. 02-6190
ELECTRONIC CITATION: 2003 FED App. 0427P (6th Cir.)File Name: 03a0427p.06 Finger, GREENBERG & TRAURIG, Chicago, Illinois, for
Appellees.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT OPINION
_________________ _________________
JARMILIA BOOKER, X BOYCE F. MARTIN, JR., Circuit Judge. Jarmilia Booker
- appeals the district court’s decision to dismiss her complaint
Plaintiff-Appellant, with prejudice pursuant to Federal Rule of Civil Procedure
-
- No. 02-6190 12(b)(6). Concluding that her claims are without merit, we
v. - AFFIRM the district court’s dismissal.
>
, I.
GTE.NET LLC, et al., -
Defendants-Appellees. - On February 8, 2001, Booker, a long-time employee of the
N Office of the Attorney General for the Commonwealth of
Appeal from the United States District Court Kentucky, received a letter from her supervisor. The letter
for the Eastern District of Kentucky at Frankfort. demanded an explanation for an electronic message that
No. 02-00009—Joseph M. Hood, District Judge. Booker apparently authored and sent from a personal account
bearing Booker’s name.1 As the district court noted, the
Argued: September 30, 2003
Decided and Filed: December 5, 2003 1
The text of the electronic message stated:
Before: MERRITT, MARTIN, and DAUGHTREY, Circuit [Verizon customer],
Judges. 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
COUNSEL much trouble getting INT ERN ET ACCE SS, then go
through ano ther co mpa ny. This is not a difficult thing
ARGUED: Willie E. Peale, Jr., PEALE LAW OFFICE, to understand. The whole reason we de-regulate such
Frankfort, Kentucky, for Appellant. Kevin D. Finger, things is to give you, the customer, the opportunity for
more selection.
GREENBERG & TRAURIG, Chicago, Illinois, for I sympathize with you over your troubles, but come
Appellees. ON BRIEF: Willie E. Peale, Jr., PEALE LAW on [Verizon customer], why don’t you put on your
OFFICE, Frankfort, Kentucky, for Appellant. Kevin D. 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
1
No. 02-6190 Booker v. GTE.net LLC, et al. 3 4 Booker v. GTE.net LLC, et al. No. 02-6190
electronic message’s tone was “rude and critical of the Booker filed this timely appeal challenging the district
recipient.” Apparently the message was transmitted in court’s dismissal of her vicarious liability and negligent
reaction to the recipient’s numerous complaints about his supervision claims. On appeal, it is unclear whether Booker
internet service that he had forwarded to–among others–the has challenged the district court’s dismissal of her
Office of the Attorney General for the Commonwealth of Racketeering Act and Washington state statutory claims.
Kentucky Regardless, we find that Booker has waived her right to
appeal the dismissal of these claims because she has failed to
An investigation of the origins of the offensive electronic provide any legal argument to demonstrate that the district
message uncovered that a Verizon employee, not Booker, court erred in its dismissal of these claims. See Ewolski v.
authored the message. Thus, no disciplinary action was taken City of Brunswick, 287 F.3d 492, 516-17 (6th Cir. 2002)
against Booker. Booker, however, claims that she was (noting that a failure to provide a legal argument on an issue
traumatized by the entire incident and suffered emotional and in a brief presented to this Court is considered a waiver of
psychological injuries, which prompted her to file a complaint appeal of that issue).
with the district court. The complaint filed against GTE.net,
doing business as Verizon Internet Solutions, alleged II.
violations of the Racketeering Influenced and Corrupt
Organizations Act and Washington state statute 19.190.020 This Court reviews de novo a district court’s dismissal of a
and 19.190.030, as well as claims for failure to supervise, complaint pursuant to Federal Rule of Civil Procedure
intentional infliction of emotional distress, civil conspiracy 12(b)(6). See Greenberg v. Life Ins. Co. of Virginia, 177 F.3d
and libel. The district court dismissed all of her claims 507, 514 (6th Cir. 1999).
pursuant to Federal Rule of Civil Procedure 12(b)(6).
A.
Kentucky law recognizes that an employer can be held
liable for the negligent supervision of its employees. See
baseless and p etty. You sir are a grumpy, horrible man Smith v. Isaacs, 777 S.W.2d 912 (Ky. 1989). In recognizing
who needs to grow up and realize that you are on earth, the tort of negligent supervision, Kentucky has adopted the
not some crazy place where everything works out for Restatement (Second) of Agency § 213 which illustrates the
[Ve rizon custom er] and compa ny! requirements for establishing a claim of negligent
Frankly, I hope you NEVER get this internet service
and sit on perpetual hold, waiting for a “live” hum an to
supervision. Id. at 914. As the commentary and illustrations
answer the phone. following the Restatement clarify, an employer may be held
[Verizon Customer], if you want to waste precious liable for negligent supervision only if he or she knew or had
time spreading libel around about Verizon, which by reason to know of the risk that the employment created. See
the way is illegal, then that is your business. Please RESTATEMENT (SECOND) OF AGENCY § 213 (1958)
stop se nding me these despicable em ails at once!! (Comment & Illustrations).
Sincere ly,
In this case, Booker’s amended complaint is devoid of
Mrs. Booker “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 6 Booker v. GTE.net LLC, et al. No. 02-6190
recover under the theory of negligent supervision. employee’s conduct is within the scope of employment is a
Specifically, Booker’s complaint failed to allege that Verizon question of law, and the proper law to apply is the state law
knew or should have known that the employee who drafted of Kentucky.
the electronic message would act as he or she did. While
Booker alleged that Verizon had a duty to supervise its This Circuit, after careful review of Kentucky law, has
employees and that it failed to satisfy this duty, this Court is developed certain guideposts to determine whether conduct is
not bound to accept bare legal conclusions unsupported by within the scope of employment. See Coleman v. United
factual allegations. See In re Sofamore Danek Group, Inc., States, 91 F.3d 820 (6th Cir. 1996). The district judge,
123 F.3d 394, 400 (6th Cir. 1997) (“Nevertheless, our coincidently the same judge who decided the district court
standard of review requires more than the bare assertion of decision in Coleman, found the guideposts “an excellent
legal conclusions. We need not accept as true legal analytical tool” and, thus, applied them to the instant case.
conclusions or unwarranted factual inferences.”) (internal
citations and quotations omitted). Absent such knowledge, First, Kentucky courts consider whether “the conduct was
Verizon cannot be held liable for negligent supervision, and similar to that which the employee was hired to perform.”
Booker has failed to state a claim upon which relief can be Coleman, 91 F.3d at 824. The district court concluded that
granted. Moreover, a plain reading of Booker’s complaint Booker had established this element because the Verizon
does not support her assertion that her complaint inherently employee who sent the offensive message was allegedly a
alleged knowledge. Thus, accepting all “well-pled allegations customer affairs representative hired to respond to customer
of the complaint” as true, we find no error in the district complaints. While not explicit in the complaint that the
court’s dismissal of Booker’s negligent supervision claim. offensive Verizon employee was hired for the purpose of
responding to customer complaints, we find that one may
B. infer from the complaint an attempt to allege such similar
conduct. Accordingly, we conclude that the unnamed
Booker also challenges the district court’s dismissal of her Verizon employee’s conduct “was reasonably incident to [his
vicarious liability claims. Specifically, Booker challenges the or her] employment.” Coleman, 91 F.3d at 825.
dismissal of her intentional infliction of emotional distress,
civil conspiracy and libel claims, which are all premised upon Second, Kentucky courts consider whether “the action
Verizon’s vicarious liability for the tortious conduct of its occurred substantially within the authorized spacial and
employees. temporal limits of the employment.” Coleman, 91 F.3d at
824. Again, although the complaint fails to allege specifically
Under certain conditions, an employer will be vicariously that the offensive conduct occurred on Verizon’s premises
liable for the torts of its employee. See Osborne v. Payne, 31 during working hours, we conclude that allegations were
S.W.3d 911 (Ky. 2000). “The critical analysis is whether the sufficient to support the inference that the employee
employee or agent was acting within the scope of his committed the conduct “within the authorized spacial and
employment at the time of his tortious act.” Id. at 915. temporal limits of the employment.” Indeed, the electronic
Generally, intentional torts are committed outside the scope message’s time stamp indicates that the unnamed employee
of the employment. However, some intentional conduct is so sent the message on a Monday at 4:04 p.m. - ostensibly
closely related to the employment that it is considered within during working hours. Thus, we agree with the district
the scope of employment. The question of whether an
No. 02-6190 Booker v. GTE.net LLC, et al. 7 8 Booker v. GTE.net LLC, et al. No. 02-6190
court’s conclusion that Booker has established this second The same argument applies in this case by way of analogy.
factor. Although the unnamed employee was engaged in typical
employment duties–responding to customer complaints–the
Third, Kentucky courts consider whether “the action was in employee stepped outside the scope of the employment by
furtherance of the employer’s business.” Coleman, 91 F.3d sending a highly offensive response to a customer complaint
at 824. Booker argues that the text of the message attempts that cannot plausibly be interpreted as designed to advance
to “influence the customer to continue using [Verizon’s] Verizon’s business goals. Moreover, the fact that the
product,” or to discontinue his complaints, and, therefore, that employee sent the electronic message from a personal
it was calculated to advance Verizon’s business. This electronic mail account, rather than from the business
argument is unsustainable. The text of the message clearly account, itself demonstrates that the employee contemplated
suggests that the recipient should discontinue his service with that such action would be inappropriate if committed within
Verizon. See supra, note 1 (“[W]hy don’t you put on your the scope of his or her employment.
pampers and ask for your bobba OR cancel the service
altogether!”); id. (“If you are having this much trouble getting Furthermore, although Booker argued both in her brief and
INTERNET ACCESS, then go through another company.”). at oral argument that the employee’s actions were calculated
Although this Court is bound to take all well-pled facts as to advance the cause of Verizon in pacifying disgruntled
true, it is not bound to accept unwarranted factual inferences. customers, we conclude that such an argument cannot be
See Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th sustained. Undoubtedly, Verizon desires to quiet customer
Cir. 1987). The pleadings taken as a whole, which includes complaints. We cannot agree, however, that it is beneficial to
the text of the electronic message, do not support the Verizon’s business to pacify customer complaints through the
conclusion that the offensive message was intended to benefit methods employed here, i.e., through the implicit threat of
Verizon’s business. See Greenberg, 177 F.3d at 514 lawsuits and the offensively-worded suggestion that the
(allowing consideration of documents not included in the customer discontinue his business with Verizon. Thus, we
complaint, but central to the plaintiff’s claim, to be find that this factor weighs heavily in favor of Verizon.
considered on a Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss, without converting the motion into a Fourth, Kentucky courts consider whether “the conduct,
summary judgment decision). though unauthorized, was expectable in view of the
employee’s duties.” Coleman, 91 F.3d at 824. The district
Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000), is instructive court concluded that “creating false third-party e-mail
on this issue. In Osborne, the plaintiff brought charges accounts and sending intentionally-offensive e-mails is not
against a priest, Osborne, for the tort of outrageous conduct expected from company employees.” We agree and find no
arising out of an extra-marital affair with the plaintiff’s wife, need for further elaboration on this point.
and against the diocese under a vicarious liability theory for
the negligent screening, supervision, and training of Osborne. In sum, we find Booker’s vicarious liability claims fatally
Id. at 913. In granting summary judgment in favor of the flawed. An employer simply cannot be held liable “under the
diocese, the court held that even though Osborne was engaged doctrine of respondeat superior unless the intentional wrongs
in marital counseling, a typical pastoral function, the scope of of the agent were calculated to advance the cause of the
the employment clearly did not include adultery. Id. at 915. 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.