        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.
