Gippetti v. United Parcel Service, Case No. 07-00812 (N.D. Cal. August 6, 2008)

This is an age discrimination case, brought by a UPS driver who was fired because of his age, according to plaintiff, or because he was stealing time – sleeping on the job, taking excessive rest breaks, and inaccurately recording meal and rest breaks – according to UPS. Plaintiff sought tachograph records – records that show a vehicle’s speed and the time it is moving – for the route he drove, as well as records for other drivers’ routes, from September 2004 through November 2007. UPS responded that its policy was to retain tachographs for only a limited period of time – 37 days – due to the large volume of data. Plaintiff sought sanctions for spoliation.

Plaintiff argued that the tachographs would have substantiated his contention that younger drivers handled his route in the same manner he did, but were not criticized or fired for “stealing time” when their engines were not running and they had not “clocked out,” and that the destroyed tachographs would have shown that other drivers decoupled or unhooked their trucks at the Santa Cruz terminal the same way plaintiff says he did. Defendant countered that the tachographs show nothing more than whether the truck’s engine is on, and if the truck is moving, how fast it is moving. Thus, there was a fundamental question of relevance.

The court also noted that plaintiff had not presented evidence demonstrating that UPS had been put on notice that the records should have been preserved before being destroyed in accordance with its normal records retention policy. Plaintiff contended that his union representative had requested the tachographs in 2004, but the UPS representative denied any such request had been made. Moreover, plaintiff had not alleged age discrimination during his grievance procedure, thereby failing to put UPS on notice that the records might be relevant.

Magistrate Judge Howard R. Lloyd denied the motion for sanctions.

Read the Gippetti opinion