Boyd v. United Parcel Service, Inc.

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

HOWARD L. BOYD,

Plaintiff, Case No. 3:24-cv-00651

v. Judge Aleta A. Trauger

Magistrate Judge Alistair E. Newbern

UNITED PARCEL SERVICE, INC., et al.,

Defendants.

To: The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

This civil action arises out of pro se Plaintiff Howard L. Boyd’s employment with

Defendants United Parcel Service, Inc. (UPS) and UPS Manager Robert Vaughan. (Doc. No. 1.)

UPS and Vaughan filed a motion to dismiss Boyd’s complaint under Federal Rules of Civil

Procedure 12(b)(5) and 12(b)(6). (Doc. No. 11.) They argue that dismissal is warranted because

Boyd has not effected proper service of process on Vaughan and that Boyd’s complaint fails to

allege any plausible claims for relief against Vaughan or UPS. (Doc. No. 12.) Boyd filed a response

arguing that he properly served Vaughan and that his complaint adequately alleges defamation

claims against Vaughan and UPS. (Doc. No. 15.) Vaughan states, however, that he “withdraws”

his other claims against the defendants. (Id. at PageID# 64, ¶¶ 3, 4.) The defendants filed a reply

in support of their motion to dismiss. (Doc. No. 16.) For the reasons that follow, the Magistrate

Judge will recommend that the Court grant UPS and Vaughan’s motion and dismiss this action.

I. Background

A. Factual Background1

Boyd worked part-time for UPS at its Whites Creek Hub from 2014 until 2021. (Doc.

No. 1.) He began “as a temporary-seasonal-package handler during the 2014 Christmas Season”

and “was hired as a regular part-time hourly-paid employee” in January 2015. (Id. at PageID# 3,

¶ 10.) UPS promoted Boyd to supervisory positions in which Boyd reported to Vaughan, who was

the center manager. (Doc. No. 1.)

Boyd alleges that, from November 2019 until March 2020, “a UPS hourly-paid female

employee” who “occasionally worked under [Boyd’s] supervision” “attempted to seduce [Boyd],

both in the workplace and away from the workplace, into a sexual relationship.” (Id. at PageID# 4,

¶ 15.) Boyd states that, on “March 29, 2020, while working for [him] on a home renovation project,

the Hourly [female employee] became angry when [Boyd] would not engage her in a sexual

encounter.” (Id.) “[I]n an act of revenge, [she] registered a complaint against [Boyd] with UPS’s

Human Resources Department (‘HR’) . . . .” (Id. at ¶ 16.) Boyd states that there was “no evidence

of harassment that would rise to the level of illegality, let alone sexual harassment,” but HR and

“Vaughan were quick to take action against [Boyd], make demands of [him,] and issue veil[ed]

threats of termination.” (Id. at PageID# 5, ¶ 17.)

Boyd presented HR with “a formal written complaint of sexual harassment against the

Hourly[,]” but “[a]t no point [in] time did [HR], Vaughan[,] or anyone else representing UPS ever

conduct an investigation into [Boyd’s] written complaint.” (Id. at ¶ 18.) Boyd alleges that “no

credence was given to [his] written complaint and [it] was dismissed by [HR] and Vaughan as

1 The facts in this section are drawn from Boyd’s complaint (Doc. No. 1) and accepted as

true for purposes of analyzing the defendants’ dismissal arguments under Rule 12(b)(6). See

Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016).

nonsense” “[b]ecause [Boyd] is male, over the age of 40 and substantially older than the Hourly[.]”

(Id.) Boyd states that, “[i]n late May of 2021, after over one year of scrutiny, harassment[,] and

conditions being placed on his employment, [he] gave a two-week notice to resign from UPS.”

(Id. at ¶ 20.) Boyd “worked his last day at UPS” “[o]n April 9, 2021[.]” (Id.) He states that he “left

o[n] good terms, and with a positive rehire status.” (Id. at PageID# 6, ¶ 20.)

Beginning “[o]n April 7, 2022, [Boyd] represented himself, pro se, in a lawsuit against

UPS for harassment,” alleging that UPS engaged in “repetitive, year-long gender and age

discriminatory behaviors” toward him. (Id. at ¶ 21.) Boyd states that his “lawsuit was dismissed”

“[i]n December of 2022[.]”2 (Id.)

Boyd “work[ed] for another employer” from May 2021 until the “new employer closed

their doors” “[o]n July 31, 2023[.]” (Id. at ¶ 22.) In October 2023, Boyd “received an email from

UPS Careers, inviting him to apply for positions at UPS.” (Id. at ¶ 23.) Boyd “contacted UPS’s

HR department regarding rehires, and [he] was told that [he] ha[d] a positive rehire status.” (Id.)

Boyd applied for an open position at UPS’s Whites Creek hub in late October or early November

of 2023 but, “[o]n or about November 9, 2023, [Boyd] received an email notice from UPS [ ]

informing him that his application was not successful.” (Id. at ¶ 24.) Boyd states that, “[u]pon

inquiry, [he] learned from others at the UPS Whites Creek facility[ ] that Vaughan had blocked

[Boyd’s] rehire by instructi[ng] others not to hire [him], stating that [Vaughan] had placed [Boyd]

on the non-rehire list.” (Id.) On November 10, 2023, Boyd “called UPS’s Talent Acquisition team,

2 See Boyd v. United Parcel Serv., Civ. Action No. 3:22-cv-00422, 2022 WL 17844020,

(M.D. Tenn. Oct. 12, 2022) (recommending dismissal under Federal Rule of Civil

Procedure 12(b)(6) for failure to state claims on which relief can be granted), report and

recommendation adopted, 2022 WL 17836682 (M.D. Tenn. Dec. 21, 2022).

and was informed that [he] had a positive rehire status, and that [he] had not been placed on the

non-rehire list.” (Id. at PageID# 7, ¶ 25.)

Boyd states that, “[o]n or about [ ] November . . . 4, 15[,] and 16, of 2023, [he] again

received email invitations from UPS Careers, and again applied for positions, including positions

at [other] facilities” but, “[e]ach time, [his] application was rejected, and each time [he] learned

that his rejection was because Vaughan had told the hiring manager not to hire [Boyd] because

Vaughan had placed [Boyd] on the non-rehire list.” (Id. at PageID# 7, ¶ 26.) “After each rejection,

[Boyd] contacted UPS’s Talent Acquisition team, and each time [Boyd] was told that he had a

positive rehire status, and was not on the non-rehire list.” (Id. at ¶ 27.) Eventually, “UPS’s Talent

Acquisition Team informed [Boyd] that they would investigate the matter.” (Id. at ¶ 28.) On

“November 29, 2023, [Boyd] was told that in the prior week, he had ‘now’ been placed on the

non-rehire list, by Vaughan, and stated that [Boyd] had been listed as a security risk.” (Id.)

B. Procedural History

Boyd initiated this action on May 28, 2024, by filing a complaint against UPS and

Vaughan. (Doc. No. 1.) Boyd asserts claims of retaliation, harassment, and defamation in violation

of Title VII of the Civil Rights Act of 1964 and Tennessee law. (Id.) He alleges that “UPS is liable”

for Vaughan’s actions because UPS “empowered [Vaughan] to make tangible employment

decisions regarding [its] employees[.]” (Id. at PageID# 8, ¶ 31.) Boyd seeks compensatory and

punitive damages. (Doc. No. 1.) At Boyd’s request, the Clerk of Court issued summonses

addressed to UPS and to Vaughan on the day that Boyd filed his complaint. (Doc. No. 5.) Boyd

returned the summonses as executed on June 10, 2024, declaring that he served UPS and Vaughan

via certified mail and attaching signed return receipts. (Doc. Nos. 6, 7.)

The Court referred this action to the Magistrate Judge to resolve or recommend resolution

of any pretrial motions under 28 U.S.C. § 636(b)(1)(A) and (B). (Doc. No. 8.)

UPS and Vaughan appeared (Doc. No. 9) and, on June 26, 2024, filed a motion to dismiss

Boyd’s complaint under Federal Rule of Civil Procedure 12(b)(5) and 12(b)(6) (Doc. No. 11). The

defendants argue that Boyd’s claims against Vaughan are subject to dismissal under Rule 12(b)(5)

because Boyd’s service on Vaughan was deficient and that Boyd’s claims against Vaughan and

UPS are subject to dismissal under Rule 12(b)(6) because they are insufficiently pleaded. (Doc.

No. 12.)

Boyd filed a response in opposition to UPS and Vaughan’s motion, arguing that “Vaughan

was sufficiently served under [Rule] 4(e)(1)” and that his “claims are articulated well enough that

the [d]efendants’ request for dismissal under [ ] Rule 12(b)(6) should be denied.” (Doc. No. 15,

PageID# 63, 64, ¶¶ 1, 2.) Boyd states that he “withdraws” his retaliation and harassment claims

against the defendants. (Id. at PageID# 64, ¶¶ 3, 4.)

UPS and Vaughan filed a reply. (Doc. No. 16.)

II. Legal Standards

A. Sufficiency of Service Under Rule 12(b)(5)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(5) challenges “the

manner or method of service” of a summons or complaint. Buck Mountain Cmty. Org. v. Tenn.

Valley Auth., 629 F. Supp. 2d 785, 792 n.5 (M.D. Tenn. 2009); see also 5B Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1353 (4th ed. suppl. June 2024) (“A

Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery, the lack of

delivery, or the timeliness of delivery of the summons and complaint.” (footnotes omitted)). “In

deciding a motion to dismiss under Rule 12(b)(5), the court may refer to record evidence in

determining the sufficiency of service[,]” including “uncontroverted affidavits . . . .” Metro. Alloys

Corp. v. State Metals Indus., Inc., 416 F. Supp. 2d 561, 563 (E.D. Mich. 2006); see also Spencer

v. Caracal Int’l, LLC, 516 F. Supp. 3d 755, 758 (M.D. Tenn. 2021) (finding that courts considering

Rule 12(b)(5) motions “‘may look to “record evidence” and “uncontroverted affidavits” in

determining’” sufficiency of service (quoting Chapman v. Lawson, 89 F. Supp. 3d 959, 971 (S.D.

Ohio 2015))). The plaintiff bears the burden to establish that service was proper. Spencer, 516 F.

Supp. 3d at 758; Sawyer v. Lexington-Fayette Urb. Cnty. Gov’t, 18 F. App’x 285, 287 (6th Cir.

2001) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996)).

B. Sufficiency of Claims Under Rule 12(b)(6)

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court

must “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded

factual allegations in the complaint as true, and draw all reasonable inferences in favor of the

plaintiff.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). Federal Rule of

Civil Procedure 8(a)(2) requires only that a complaint contain “a short and plain statement of the

claim[.]” Fed. R. Civ. P. 8(a)(2). However, “[t]he factual allegations in the complaint need to be

sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead

‘sufficient factual matter’ to render the legal claim plausible, i.e., more than merely possible.” Fritz

v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A plaintiff must plead more than “‘labels

and conclusions[,]’” “‘a formulaic recitation of the elements of a cause of action[,]’” or “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (third alteration in original) (quoting

Twombly, 550 U.S. at 555, 557). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

Because Boyd appears pro se, the Court construes his filings “‘liberally’” and holds his

complaint “‘to less stringent standards than formal pleadings drafted by lawyers[.]’” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “However,

this lenient treatment has limits.” Frengler v. Gen. Motors, 482 F. App’x 975, 977 (6th Cir. 2012).

“[C]ourts are not required to conjure up unpleaded allegations or guess at the nature of an

argument.” Brown v. Cracker Barrel Rest., 22 F. App’x 577, 578 (6th Cir. 2001) (citing Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

III. Analysis

Boyd has withdrawn his retaliation and harassment claims. (Doc. No. 15.) The Court will

therefore address UPS and Vaughan’s motion to dismiss only as it relates to service on Vaughan

and Boyd’s defamation claims against UPS and Vaughan.

A. Sufficiency of Service on Vaughn

Federal Rule of Civil Procedure 4(e) provides two methods for serving individuals within

a judicial district of the United States. Fed. R. Civ. P. 4(e). First, service may be accomplished by

“following state law for serving a summons in an action brought in courts of general jurisdiction

in the state where the district court is located or where service is made[.]” Fed. R. Civ. P. 4(e)(1).

Second, service may be made by: (1) “delivering a copy of the summons and of the complaint to

the individual personally”; (2) “leaving a copy of each at the individual’s dwelling or usual place

of abode with someone of suitable age and discretion who resides there”; or (3) “delivering a copy

of each to an agent authorized by appointment or by law to receive service of process.” Fed. R.

Civ. P. 4(e)(2)(A)–(C).

Boyd argues that he satisfied Rule 4(e)(1) by serving Vaughan via certified mail in

compliance with Tennessee Rule of Civil Procedure 4.04(10). (Doc. No. 15.) Tennessee Rule of

Civil Procedure 4.04(10) provides that “[s]ervice by mail of a summons and complaint upon a

defendant may be made by the plaintiff, the plaintiff's attorney or by any person authorized by

statute.” Tenn. R. Civ. P. 4.04(10). However, Tennessee Rule of Civil Procedure 4.03(2) requires

any party attempting service by mail to file with the clerk the original summons, an affidavit from

the person who served the documents, and the return receipt. Tenn. R. Civ. P. 4.03(2). Rule 4.03(2)

further provides that service by mail is only complete “[i]f the return receipt is signed by the

defendant, or by a person designated by Rule 4.04 or by statute.” Tenn. R. Civ. P. 4.03(2). In Hall

v. Haynes, 319 S.W. 3d 564 (2010), the Tennessee Supreme Court explained that “Rule 4.03’s

explicit restriction of whom [sic] may sign the return receipt” generally requires “‘that the return

receipt be signed by the defendant and no one else.’” Id. at 577 (quoting Robert Banks, Jr. & June

F. Entman, Tennessee Civil Procedure § 2–3(v) (2d ed. 2004)); see also id. (discussing Edwards

v. Campbell, No. E2000-01463-COA-R3-CV, 2001 WL 52776 (Tenn. Ct. App. Jan. 23, 2001), in

which service effected by certified mail was not valid under Rule 4.03 even though the wife and

mother of the respective defendants had signed the return receipts because they were not

designated by Rule 4.04 or statute to do so).

Here, Vaughan argues that Boyd did not complete service by mail in accordance with

Tennessee law because the return receipt that Boyd filed “was signed by a non-party, ‘Angie

Vaughan.’” (Doc. No. 12, PageID# 45.) Boyd does not dispute that Vaughn did not personally sign

the return receipt, and the copy of the return receipt in the record bears the signature of “Angie

Vaughan[.]” (Doc. No. 7, PageID# 28.) It is well established under Tennessee law “that a person

with the authority to sign for and receive certified mail does not, without more, qualify as an agent

authorized by appointment to receive service of process on behalf of an individual defendant.”

Hall, 319 S.W. 3d at 581; see also Brown v. CoreCivic, No. 3:22-cv-00547, 2023 WL 3656868, at

*3 (M.D. Tenn. May 25, 2023) (Trauger, J.) (quoting id.). Boyd has not argued that Angie Vaughan

is a “person designated by Rule 4.04 or by statute” to accept service on Vaughan’s behalf. Tenn.

R. Civ. P. 4.03(2). Boyd therefore has not established that he properly served Vaughan.

B. Sufficiency of Boyd’s Defamation Claims Against Vaughan and UPS

To state a claim for defamation under Tennessee law, a “plaintiff must allege that (1) a

party published a statement; (2) with knowledge that the statement was false and defaming to the

other or with reckless disregard for the truth of the statement; or (3) with negligence in failing to

ascertain the truth of the statement.” Mcpherson v. Vignobles Sullivan, LLC, No. 3:20-cv-00384,

2020 WL 7624173, at *2 (M.D. Tenn. Dec. 22, 2020) (citing Sullivan v. Baptist Mem’l Hosp., 995

S.W.2d 569, 571 (Tenn. 1999). “‘Publication’ is a term of art meaning the communication of

defamatory matter to a third person.” Sullivan, 995 S.W.2d at 571.

“In Tennessee, communications among agents of the same corporation made within the

scope and course of their employment relative to duties performed for that corporation are not to

be considered as statements communicated or publicized to third persons.” Mcpherson, 2020 WL

7624173, at *2 (quoting Sikoski v. Eaton Leonard USA, Case No. 3:05-0641, 2005 WL 3079075,

at *1 (M.D. Tenn. Nov. 16, 2005)); see also Siegfried v. Grand Krewe of Sphinx, No. W2002-

02246-COA-R3-CV, 2003 WL 22888908, at *2 (Tenn. Ct. App. Dec. 2, 2003) (“It is well settled

that no publication occurs when only intra-corporate communications exist as evidenced by the

Tennessee Supreme Court stating ‘it is announced that communication between officers and agents

of a corporation . . . is not publication of libelous matter.’” (alteration in original) (quoting

Freeman v. Dayton Scale Co., 19 S.W.2d 255, 257 (Tenn. 1929))). The rationale behind this “rule

is that publication requires ‘the communication of a defamatory matter to a third person’ and

‘communication among agents of the same corporation . . . are not to be considered as statements

communicated or publicized to third persons.’” Siegfried, 2003 WL 22888908, at *2 (quoting

Sullivan, 995 S.W.2d at 572).

Boyd alleges that Vaughan, in his position at UPS, “was, and still is, empowered to make

tangible employment decisions pertaining to employees, . . . includ[ing] the decision to place

former employees on the non-rehire list.” (Doc. No. 1, PageID# 4, ¶ 13.) Boyd states that, from

late-October to mid-November of 2023, Vaughan repeatedly “blocked [Boyd’s] rehire by

instructi[ng] others not to hire [Boyd], stating that he had placed [Boyd] on the non-rehire list.”

(Id. at PageID# 6, ¶ 24.) Specifically, “Vaughan [ ] told the hiring manager not to hire [Boyd] [ ]

because Vaughan had placed [Boyd] on the non-rehire list.” (Id. at PageID# 7, ¶ 26.) Boyd alleges

that Vaughan’s statements were false because “UPS’s Talent Acquisition team” told Boyd “that

he had a positive rehire status, and was not on the non-rehire list” until the week before November

29, 2023. (Id. at ¶ 27.) At that point, the talent acquisition team informed Boyd that “ he had ‘now’

been placed on the non-rehire list, by Vaughan, and . . . had been listed as a security risk.” (Id. at

¶ 28.) Boyd alleges that Vaughan defamed him by “instruct[ing] others not to hire [Boyd], claiming

to have placed [Boyd] on [UPS’s] non-rehire list, when in fact he had not” and by “declar[ing]

[Boyd] a security risk, without any supporting evidence[.]” (Id. at PageID# 10, ¶¶ 42, 45.) Boyd

alleges that “UPS is liable” for Vaughan’s actions because “Vaughan represents UPS” and is

“empowered to make tangible employment decisions regarding [UPS] employees[.]”3 (Id. at

PageID# 8, ¶ 31.)

3 Tennessee law provides that, “[u]nder the doctrine of respondeat superior, an employer

may be liable for acts committed by an employee while acting in the course and scope of his

employment.” Warren v. Warrior Golf Cap., LLC, 126 F. Supp. 3d 988, 996 (E.D. Tenn. 2015)

(citing Tenn. Farmers Mut. Ins. Co. v. Am. Mut. Liab. Ins. Co., 840 S.W.2d 933, 937 (Tenn. Ct.

App. 1992)). “[T]o hold the employer liable, the plaintiff must prove (1) that the person who

caused the injury was an employee, (2) that the employee was on the employer’s business, and

(3) that the employee was acting within the scope of his employment when the injury occurred.”

Id.

These allegations are insufficient to state a claim that Vaughan published a false statement

to third parties. While Boyd has alleged that Vaughan told other UPS employees including hiring

managers that Boyd was on the non-hire list and was a security threat, the Court cannot plausibly

infer from the allegations in the complaint that these statements were communicated outside the

company. Boyd argues that “[p]ublication can, and does, transpire within an organization” and

that, “[w]hen a manager or supervisor knowingly makes a false statement about an employee,

supervisor[,] or another manager to a third-party within an organization, that is a ‘published

statement’.” (Doc. No. 15, PageID# 64-65.) But Boyd has not identified any authority to support

this argument and Tennessee courts disagree.

Accordingly, because Boyd has not sufficiently alleged publication, his defamation claims

against Vaughan and UPS are subject to dismissal under Rule 12(b)(6). See Mcpherson, 2020 WL

7624173, at *3 (citing Woods v. Helmi, 758 S.W.2d 219, 223 (Tenn. Ct. App. 1988)).

IV. Recommendation

For these reasons, the Magistrate Judge RECOMMENDS that UPS and Vaughan’s motion

to dismiss (Doc. No. 11) be GRANTED.

Any party has fourteen days after being served with this Report and Recommendation to

file specific written objections. Failure to file specific objections within fourteen days of receipt

of this Report and Recommendation can constitute a waiver of appeal of the matters decided.

Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).

A party who opposes any objections that are filed may file a response within fourteen days after

being served with the objections. Fed. R. Civ. P. 72(b)(2).

Entered this 3rd day of December, 2024.

Qhichnr noleon

BLE WU

United States Magistrate Judge

11