RICHARD DIBONA v. WAYFAIR LLC (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Plaintiff Richard DiBona commenced an action against the defendant Wayfair LLC (Wayfair), the plaintiff's employer, claiming age discrimination and retaliation. A Superior Court judge awarded partial summary judgment to the defendant, dismissing the plaintiff's retaliation claim. The plaintiff claims that the judge abused her discretion by not factoring the defendant's spoliation of evidence into the summary judgment analysis. We agree, and we vacate so much of the judgment that dismissed the plaintiff's retaliation claim against Wayfair and remand for further consideration of that issue. The remainder of the judgment is affirmed.

Background. We recite the relevant facts, reviewing the evidence available at summary judgment “in the light most favorable to the plaintiff as the party against whom judgment was entered” (citation omitted). See Le Fort Enters. v. Lantern 18, LLC, 491 Mass. 144, 149 (2023).

The defendant hired the plaintiff in September 2019. The plaintiff was 52 years old at that time. In March and April 2020, the plaintiff notified his supervisor that his work would be affected by changes to his caregiving role for his children caused by the COVID-19 pandemic. On April 28, 2020, the plaintiff's supervisor informed him that he would be placed on a Performance Improvement Plan (PIP), and on May 4, 2020, the plaintiff filed an internal complaint of age discrimination.

The plaintiff was not placed on a PIP at that time. Instead, on May 15, 2020, the defendant placed the plaintiff on a Performance Development Plan (PDP) running from May 18, 2020 to June 12, 2020. After the PDP's expiration, the plaintiff was placed on a PIP from June 18 to July 1, 2020, then ultimately terminated on July 2, 2020.

In the interim, plaintiff's counsel sent a demand letter to the defendant on June 5, 2020, threatening litigation over the alleged age discrimination and requesting preservation of relevant communications, including Slack messages.² The Slack messages were not preserved and were subsequently destroyed.

The plaintiff filed this suit on November 19, 2020, alleging age discrimination and retaliation. The defendants moved for summary judgment on both claims on December 13, 2022. The judge granted partial summary judgment to the defendant, dismissing the retaliation claim. The discrimination claim was ultimately resolved by a jury trial and dismissed.³

Discussion. The plaintiff claims that, by not considering the potential impact of spoliated evidence, the judge erred in dismissing his retaliation claim at summary judgment. We review the summary judgment decision de novo for errors of law. Le Fort Enters., 491 Mass. at 149.

A plaintiff claiming retaliation must provide evidence from which a jury could find four elements: “that the employee reasonably and in good faith believed that the employer was engaged in wrongful discrimination, ․ that the employee acted reasonably in response to that belief, ․ that the employer took adverse action against the employee, ․ [and] that the adverse action was a response to the employee's protected activity” (quotations and citations omitted). Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 405 (2016). A plaintiff lacking “direct evidence of a retaliatory motive” can nevertheless establish such a motive via inference -- “for example, ‘where adverse action is taken against a satisfactorily performing employee in the immediate aftermath of the employer's becoming aware of the employee's protected activity.’ ” Psy-Ed Corp. v. Klein, 459 Mass. 697, 706 (2011), citing Mole v. University of Mass., 442 Mass. 582, 592 (2004).

As for spoliation, our doctrine “permits the imposition of sanctions and remedies for the destruction of evidence in civil litigation” and “is based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results.” Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 234 (2003). We review a judge's decision on spoliation for abuse of discretion. Santiago v. Rich Prods. Corp., 92 Mass. App. Ct. 577, 580 (2017), citing Scott v. Garfield, 454 Mass. 790, 798 (2009).

In this case, the defendant moved for summary judgment on the plaintiff's claims. The plaintiff responded by arguing that his ability to prove his claims had been unfairly prejudiced by the defendant's failure to preserve the requested Slack messages concerning the plaintiff and his termination, as those messages may have contained direct evidence of a retaliatory motive. The judge dismissed the retaliation claim on the sole basis that “a jury could not infer a causal link between [the plaintiff's] complaint and his termination.” This was error.

While it is impermissible to infer a causal link based on temporal proximity between a protected activity and an adverse employment action when the “problems with an employee predate any knowledge that the employee has engaged in protected activity,” Mole, 442 Mass. at 594, no inference of a causal link is required when there is direct evidence of such a retaliatory motive. See Klein, 459 Mass. at 706 (causal link can be inferred where plaintiff lacks “direct evidence of a retaliatory motive”). Here, the plaintiff claims that direct evidence might have been available, but for the defendant's spoliation.

The plaintiff provided the judge with unrefuted evidence that he had notified the defendant of impending litigation and the duty to preserve these messages, and the defendant conceded that it did not preserve these messages. See Westover v. Leiserv, Inc., 64 Mass. App. Ct. 109, 113 (2005) (spoliation established by record showing defendant aware of duty to preserve evidence and failed to do so). The judge's decision does not address the issue of spoliation whatsoever. Given the potential for that issue to change the judge's analysis as to the viability of the plaintiff's retaliation claim, this lack of consideration was an abuse of discretion.⁴

We vacate so much of the judgment that dismissed the plaintiff's retaliation claim against Wayfair, and remand the matter for the judge's consideration of the effect of the defendant's spoliation on the summary judgment motion. We hold only that summary judgment was inappropriate without analyzing the effect -- if any -- of the spoliation on the plaintiff's claim. We express no view on the ultimate success of the plaintiff's claim of retaliation. The remainder of the judgment is affirmed.

So ordered.

FOOTNOTES

2.   The complaint alleges that “Slack” is a business communication platform that allows employees to exchange messages and functions as an alternative to e-mail messages.

3.   As noted supra, the judge granted summary judgment to Cheng, and judgment entered dismissing both claims against her. On appeal, the plaintiff seeks reversal of only so much of the judgment that entered on DiBona's retaliation claim against Wayfair.

4.   The plaintiff also asserts that the trial judge erred in excluding evidence that the defendant produced “erroneous versions of the plaintiff's performance evaluation” during discovery. We review evidentiary rulings for an abuse of discretion. Commonwealth v. Gibson, 489 Mass. 37, 45 (2022). It was within the trial judge's discretion to find that such evidence lacked relevance and would “create needless confusion.” See Commonwealth v. Spencer, 465 Mass. 32, 53 (2013) (“[j]ury confusion is a factor properly to be considered in weighing the prejudicial nature of proffered evidence”). We note that this ruling did not contemplate the retaliation claim, which had been dismissed earlier in the proceedings.