                                                                             F I L E D
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                       TENTH CIRCUIT                           APR 18 2000
                                     ____________________
                                                                         PATRICK FISHER
                                                                                   Clerk
 PAMELA L. ANDERSON,

            Plaintiff - Appellant,
                                                              No. 99-1100
 v.                                                       (D.C. No. 98-D-1782)
                                                                (D.Colo.)
 ADAM’S MARK HOTELS AND
 RESORTS, a division of HBE
 Corporation; RICK PISONERO,

            Defendants - Appellees.
                                  ____________________

                                 ORDER AND JUDGMENT*
                                   ____________________

Before MURPHY and McWILLIAMS, Circuit Judges, and ROGERS, Senior District
Judge.**
                       ____________________

       Plaintiff, Pamela Anderson, has sued Adam’s Mark Hotels and Rick Pisonero in this

case which was filed in Colorado state court and removed to federal court by Adam’s Mark.

A default judgment was taken against Pisonero. This appeal stems from rulings in favor of

defendant Adam’s Mark which dismissed the complaint against the defendant hotel and

denied plaintiff the opportunity to amend the complaint to add a new cause of action.


       *
        This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of 10th Cir.R. 36.3.
       **
         The Honorable Richard D. Rogers, Senior United States District Judge for the
District of Kansas, sitting by designation.
       The complaint alleges that plaintiff was employed as a bartender at Adam’s Mark

Hotel in Denver. Her supervisor was a man named Bob Randall. Rick Pisonero, the

defendant who defaulted, was employed by Adam’s Mark as manager of the hotel’s night

club. The complaint does not allege that Pisonero was plaintiff’s supervisor. The complaint

alleges that on April 3, 1998, plaintiff, Pisonero and a group of friends went out after work

for drinks at Duffy’s Restaurant. Plaintiff was concerned, after having a number of drinks,

whether she could drive home safely. Pisonero offered to share his room at Adam’s Mark

with plaintiff. He took plaintiff to his room and sexually assaulted plaintiff. Plaintiff

reported the crime to a Denver hospital the next morning and to Adam’s Mark the following

day. Adam’s Mark then terminated Pisonero’s employment. Prior to the sexual assault,

Adam’s Mark had received at least three reports concerning sexual harassment by Pisonero

while he was employed there. Pisonero had been reprimanded by the company for sexual

harassment and for violating company policy with regard to supervisors attempting to date

employees.

       Plaintiff sued defendant Adam’s Mark for: violating Title VII, 42 U.S.C. § 2000e;

negligent supervision under Colorado law; and outrageous conduct, also under Colorado law.

Plaintiff later attempted to amend the complaint to bring a claim under the Gender Motivated

Violence Act (GMVA), the civil liability provision of the Violence Against Women Act

(VAWA), 42 U.S.C. § 13981.

       The district court granted defendant Adam’s Mark’s motion to dismiss pursuant to


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FED.R.CIV.P. 12(b)(6) essentially because plaintiff did not allege that the sexual assault was

employment-related and because Adam’s Mark’s alleged conduct could not be considered

outrageous.1

       The district court denied plaintiff’s motion to amend the complaint to add a claim

under the GMVA on the grounds that the Act only provides for liability against the actual

perpetrator of the crime.

       A decision to dismiss for failure to state a claim is reviewed de novo. Miller v. Glanz,

948 F.2d 1562, 1565 (10th Cir. 1991).       We review the district court's decision that the

motion to amend plaintiff’s complaint was futile for abuse of discretion. Hom v. Squire, 81


       The district court stated with regard to the Title VII and negligent supervision claims:
       1

                      In the case at hand, the alleged sexual harassment
             occurred outside of Plaintiff’s workplace after work hours.
             Plaintiff does not allege that Pisonaro’s harassment affected the
             “terms or conditions” of her employment. Further, it has not
             been shown that sexual harassment resulted in an abusive
             working environment for Plaintiff . . . .
                      I also reject Plaintiff’s claim that defendant’s breach of
             its duty to adequately supervise its employee, defendant
             Pisonaro, caused damages to the Plaintiff. An employer
             “generally does not have a duty to supervise employees in their
             off-duty time unless the employee is on the employer’s premises
             . . . .” Biel v. Alcott, 876 P.2d 60, 63 (Colo.App. 1993) . . .
             Plaintiff does not allege in her Complaint that any of the
             activities leading up to and including the sexual assault occurred
             during working hours or on the employer’s premises. I further
             find that the “employer’s premises” for purposes of Defendant’s
             duty to supervise cannot extend to Defendant’s hotel rooms
             since Defendant’s representatives cannot freely enter and thus
             adequately supervise Defendant’s employees under such
             conditions.
       App. at 027-028.
                                              3
F.3d 969, 973 (10th Cir.1996).

       Dismissal under Rule 12 (b)(6) is proper “only if it is clear that no relief could be

granted under any set of facts that could be proved consistent with the allegations.” Hishon

v. King & Spaulding, 467 U.S. 69, 73 (1984)(citing Conley v. Gibson, 355 U.S. 41, 45-46

(1957)). “All well-pleaded facts, as distinguished from conclusory allegations, must be taken

as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The court is not allowed

to assume that a plaintiff “can prove facts that it has not alleged or that the defendants have

violated the . . . laws in ways that have not been alleged.” Associated General Contractors

v. California State Council of Carpenters, 459 U.S. 519, 526 (1983)(footnote omitted). Of

course, dismissal is a harsh remedy which should be considered cautiously to promote the

liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp.

v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989).

       Upon careful review, we shall affirm the district court for the reasons which follow..

Title VII

       There is no claim in this case that the alleged sexual assault was an action within the

scope of Pisonero’s employment by Adam’s Mark. But, as the Supreme Court has stated:

“In limited circumstances, agency principles impose liability on employers even where

employees commit torts outside the scope of employment. The principles are set forth in the

much cited § 219(2) of the Restatement [(Second) of Agency]:

       ‘(2) A master is not subject to liability for the torts of his servants acting
       outside the scope of their employment, unless:

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             ‘(a) the master intended the conduct or the consequences, or
             ‘(b) the master was negligent or reckless, or
             ‘(c) the conduct violated a non-delegable duty of the master, or
             ‘(d) the servant purported to act or to speak on behalf of the principal
       and there was reliance upon apparent authority, or he was aided in
       accomplishing the tort by the existence of the agency relation.’”

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 758 (1998).

       Here, plaintiff attempts to state a claim under exception “b,” asserting that defendant

failed to exercise reasonable care “to protect [against] and correct the sexual harassing

behavior of Mr. Pisonero.” But, no facts could be demonstrated consistent with plaintiff’s

other allegations which would prove such negligence.           Pisonero was not plaintiff’s

supervisor. The alleged assault did not occur while plaintiff or Pisonero were at work. Nor

were the events leading up to the assault work-related. Rather, plaintiff and Pisonero were

with friends after work for drinks at a restaurant. There is no allegation that Adam’s Mark

had notice or should have expected that, as an employer or even as an innkeeper, a sexual

assault was going to be committed in one of its rooms by an off-duty employee. The

statement that Adam’s Mark had at least three prior reports of sexual harassment on the job

and had reprimanded Pisonero is inadequate to assert a claim of negligence under these

circumstances.




Negligent supervision

       Citing Biel v. Alcott, 876 P.2d 60, 63 (Colo.App. 1993), the district court found that

                                              5
Adam’s Mark did not have a duty to supervise Pisonero during his off-duty time in a room

where Adam’s Mark could not freely enter. We concur. See Restatement (Second) of Torts

§ 317 (1965)(cited in Biel) (duty of master to prevent servant from causing intentional harm

while acting outside the scope of his employment extends to premises in possession of master

or upon which the servant is privileged to enter only as his servant). Although the room was

part of the Adam’s Mark Hotel, Adam’s Mark did not have complete authority to police the

room and the activities inside, nor was Pisonero privileged to enter the room only as an

employee of Adam’s Mark. Additionally, plaintiff’s complaint does not allege that Adam’s

Mark had reason to know that Pisonero would cause the kind of harm alleged in this case in

the room. Accordingly, there is no claim that Adam’s Mark failed to exercise reasonable

care. For these reasons, we affirm the dismissal of plaintiff’s claim of negligent supervision.

Gender Motivated Violence Act

       The final issue on appeal is whether it was correct to deny plaintiff’s motion to amend

the complaint to raise a claim under the GMVA. The district court held that any such

amendment would be futile because plaintiff did not allege that Adam’s Mark was a “person”

who committed the crime of violence against her.

       GMVA was enacted to protect the civil rights of victims of gender-motivated violence

by establishing a federal civil rights cause of action for victims of such violence. 42 U.S.C.

§ 13981(a). The statute provides for a civil cause of action against “[a] person . . . who

commits a crime of violence motivated by gender. . ." 42 U.S.C. § 13981(c).


                                              6
       The futility of the proposed amendment is based on the same grounds relied upon to

dismiss the previously discussed claims. To be liable, Adam’s Mark must be the “person”

who committed the crime of violence motivated by gender. However, there is nothing in the

complaint on which to base such a finding. There is either no allegation or the facts alleged

are inconsistent with a contention that: Pisonero was acting within the scope of his

employment; that his conduct was intended or directed by Adam’s Mark; that Adam’s Mark

was negligent or reckless in supervising Pisonero; or that Pisonero’s alleged conduct was

even reasonably foreseeable to Adam’s Mark. Consequently, the district court did not abuse

its discretion in denying the motion to amend. See Grace v. Thomason Nissan, 76 F.Supp.2d

1083, 1088-89 (D.Ore. 1999).

       In so ruling, we do not reach Adam’s Mark’s contention that the GMVA is

unconstitutional.

       In conclusion, the order of the district court is affirmed.



                                                   Entered for the Court
                                                   Richard D. Rogers
                                                   District Judge




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