Wayfair software engineer fired during COVID getting his day in court for age discrimination lawsuit

Boston Globe

04-05-2025

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Huge mass layoffs have generated thousands of age discrimination cases at other tech companies,
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Wayfair said the three firings were justified by poor job performance. 'We firmly deny allegations of ageism and remain confident that the facts will demonstrate we acted both lawfully and fairly,' the company said in a statement to the Globe. 'We do not discriminate on the basis of age or any other characteristic.'
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At Wayfair, former workers have not filed with courts evidence of purposeful or systematic efforts to remove older workers. And Wayfair was founded in 2002, so it did not have as many veteran workers with decades of service as a company like IBM, which has been in business for over a century.
Still, the plaintiffs have turned up some evidence judges have found relevant to age discrimination claims.
According to a filing from DiBona's case, a January 2020 email to his department's manager indicated 'discrepancies in age...within your org which could indicate possible bias.' The email cited an internal analysis of 2020 performance reviews that found that workers over 40 were statistically more likely to receive lower ratings and less likely to be promoted than workers under 40.
Aging stereotypes play a significant role in shaping people's views of future potential and outcomes, which can affect performance reviews, according to David Weiss, who has studied ageism and is head of the developmental psychology division at Martin Luther University Halle-Wittenberg in Germany.
'The underestimation of older adults' potential...could unintentionally bias performance assessments,' he told the Globe.
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Another court filing revealed Wayfair's chief technology officer Jim Miller, in an April 2020 Slack message visible companywide, wrote 'people need role models that look like them – not 55-ish year old white guys."
Wayfair's lawyers have said the review analysis was collected as part an effort to eliminate bias. And Miller's statement was in support of efforts to diversify the workforce. 'We collect and analyze data to quickly identify and address workplace trends, ensuring fairness and accountability at all levels,' the company said in a statement to the Globe.
DiBona's lawyers cited both the internal review data and Miller's statement as the trial started in Superior Court in Boston last week. 'Something unlawful, something deeply unfair happened to Mr. DiBona,' his lawyer, Kathleen O'Toole, told the jury in her opening statement. 'His job performance was not the real reason for his termination. The real reason was his age.'
Wayfair experienced a boom and bust sales cycle during the pandemic and cut more than 4,000 jobs — many in Boston — over the past three years, mostly via mass layoffs.
David Ryan/Globe Staff/Boston Globe
Wayfair's lawyer, Lynn Kappelman, denied that managers at the company discriminated against DiBona, noting he was already 52 when he was hired. 'The same people who hired him fired him,' she told the jury in her opening statement.
Kappelman outlined for the jury what she described as a series of warnings to DiBona that his work needed to improve starting about four months before he was fired. Dibona was put on a formal 'performance improvement plan' on June 18, 2020, but did not show improvement, she said. At that point, his managers 'really have no alternative but to terminate him.'
After the statements, DiBona, wearing an open collar white shirt and a grey sports jacket, testified for more than two hours.
At his first formal performance review in February, 2020, he received a rating of meeting expectations. 'My understanding was that I was doing well and off to a good start,' he testified.
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When the pandemic struck and workers were sent home the next month, DiBona became the primary caregiver for his two young children, who were sent home from school. Although Wayfair's top executives had told managers to give workers leeway with caregiving responsibilities, DiBona said his manager ignored his efforts to make her aware of the added stress and time commitment his kids required.
At the end of April, DiBona said his manager presented him with a two-week 'performance improvement plan,' a documented process to monitor his work that could result in termination. 'I was shocked,' he said. 'It came completely out of the blue. ... I felt I was about to be fired.'
After speaking with a human resources representative, DiBona said, he decided he was being discriminated against due to his age and caregiving responsibilities, and he filed an internal complaint within the company. The performance improvement plan was canceled, but DiBona's manager continued to give him negative feedback.
About a week later, the HR rep told him in an email that she had found 'no direct evidence of bias on the basis of age.'
In June 2020, DiBona hired a lawyer who sent the company a formal complaint of age discrimination known as a demand letter. The company declined the letter's demand to settle with DiBona for $900,000.
Instead, they again put DiBona on a two-week performance plan and fired him at the beginning of July. He
DiBona's supervisor, Alex Cheng, testified in court on Thursday and Friday.
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Cheng denied she had discriminated against DiBona and said she had concerns about his management skills and team leadership even before the pandemic struck.
By June, when she put DiBona on the final performance improvement plan, he had been underperforming as a team manager for eight or nine months, she said. 'That's a long time for a team to be struggling with leadership,' she said on Friday.
And Cheng said she would have granted DiBona specific child-care accommodations, such as hours off during the work day, if he had asked. 'I thought he would approach me directly if he needed something,' she said on Friday.
Aaron Pressman can be reached at