Booker v. GTE.net LLC

Opinion

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.