The Massachusetts Appeals Court ruled that a judge could not throw out a worker’s retaliation claim on summary judgment without first weighing the employer’s conceded destruction of workplace messages the worker had asked it to preserve. The court sent the claim back for the judge to consider the effect, if any, of that missing evidence. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The employee was hired in September 2019, at age 52. In late April 2020 his supervisor told him he would be placed on a performance improvement plan, and in early May he filed an internal complaint of age discrimination. The employer then put him on a performance development plan, followed by a performance improvement plan, and fired him on July 2, 2020. While he was still employed, his lawyer sent a demand letter threatening litigation and asking the employer to preserve relevant communications, including Slack messages. Those messages were not preserved and were later destroyed.
What the court decided
In DiBona v. Wayfair, LLC, No. 25-P-1166 (Mass. App. Ct. August 4, 2026) (Rule 23.0 decision), the court vacated the part of the judgment that dismissed the retaliation claim against the employer and affirmed the rest.
A retaliation claim has four parts. The employee must show a reasonable, good faith belief that the employer was discriminating, a reasonable response to that belief, an adverse action by the employer, and a link between the two. Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 405 (2016). Massachusetts law makes it unlawful for an employer to fire or otherwise punish someone for opposing discrimination or filing a complaint. G.L. c. 151B, § 4(4).
Without direct evidence of a retaliatory motive, a worker can ask a jury to infer the link, for example when a satisfactorily performing employee is punished right after the employer learns of a complaint. Psy-Ed Corp. v. Klein, 459 Mass. 697, 706-707 (2011). But that inference is not allowed from timing alone when the employer’s problems with the worker began before it knew of the complaint. Mole v. University of Mass., 442 Mass. 582, 594 (2004). The trial judge dismissed the claim on the sole ground that a jury could not infer a causal link between the complaint and the firing.
The Appeals Court said that analysis left something out. No inference is needed if there is direct evidence of motive, and the employee argued the destroyed Slack messages may have held exactly that. Under the spoliation doctrine, a party that negligently or intentionally loses evidence it knows is relevant to coming litigation can be held responsible for the unfair harm that results. Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 234 (2003). Spoliation is shown when a party knew it had a duty to preserve evidence and failed to do so. Westover v. Leiserv, Inc., 64 Mass. App. Ct. 109, 113 (2005).
Here the evidence was unrefuted. The employee had warned the employer of litigation and asked it to keep the messages, and the employer conceded it did not. The judge’s decision never addressed spoliation at all. Because the issue could change the judge’s analysis of whether the claim could go forward, ignoring it was an abuse of discretion. The court expressed no view on whether the retaliation claim will ultimately succeed. A separate age discrimination claim had gone to a jury and was dismissed, and the court left that result in place.
What this means for you
If you think you are being punished at work for complaining about discrimination, the proof is often in the employer’s own files: emails, chat messages, texts and notes between managers. Revealing statements can live in informal channels like Slack or Teams, where messages may be deleted automatically.
This decision shows why a written preservation demand matters. Once the employer knows litigation is likely and has been asked to keep specific records, losing them can carry consequences. Where the destruction is shown and you raise it, a judge deciding whether your case can go forward should consider what effect, if any, the missing evidence has.
It also shows the limits. The court did not award the employee anything or say he would win. It only said the judge had to weigh the destroyed messages before ending the claim. Timing evidence alone may still fall short if the employer can show performance concerns came first, so the earlier you build a record, the better.
What to do now
- Write down dates: when you complained, to whom, and every action your employer took afterward.
- Keep copies of your own performance reviews, praise and any plans you were placed on, using only documents you are allowed to have.
- Ask a lawyer about sending a written preservation demand that names specific record types, such as Slack, Teams, email and text messages.
- Watch the filing deadlines for a discrimination or retaliation complaint, which can be short.
- Do not delete your own messages or records, since the preservation duty applies to both sides.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Deadlines for discrimination and employment claims can be short.
