WEBB, JR. v. DAYMARK RECOVERY SERVICES, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHNNIE WEBB, JR., )

)

Plaintiff, )

)

v. ) 1:21cv424

)

DAYMARK RECOVERY SERVICES, )

INC.; and FREEDOM HOUSE )

RECOVERY CENTER, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Before the court is the motion of Defendant Daymark Recovery

Services, Inc. (“Daymark”) for partial summary judgment. (Doc.

130.) Plaintiff Johnnie Webb, Jr., opposes the motion. (Doc.

133.) Webb also moves for reconsideration of the court’s prior

grant of partial summary judgment for co-Defendant Freedom House

Recovery Center, Inc. (“Freedom House”) (Doc. 136), which both

Defendants oppose (Docs. 142, 143). For the reasons set forth

below, Daymark’s motion for partial summary judgment will be

granted and Webb’s motion for reconsideration will be denied.

I. BACKGROUND

The facts, viewed in the light most favorable to the non-

moving party, are set out in the court’s December 20, 2022

memorandum opinion and order granting Freedom House’s motion for

partial summary judgment (Doc. 116) and are repeated here and

supplemented as appropriate based on the current record applicable

to each motion.

Webb worked for Defendant Freedom House, which provides

mental health and addiction services, from 1991 to 1997, and again

from about 2000 until May 2020. (See Doc. 53-2 at 26.) Starting

in 2010, Webb worked additional shifts part-time with Freedom

House’s Mobile Crisis Clinic (“MCC”). (Doc. 53 at 10 (citing Doc.

23 ¶ 48, Doc. 41-6 at 23-24).) Between 2002 and 2018, he received

at least five performance evaluations that were generally

positive, including notes that he was a reliable and consistent

employee. (Doc. 53-4 at 5-20.)

In July 2018, Freedom House and Daymark entered into

affiliation agreements that led to Daymark’s board of directors

becoming the “ruling board” and Freedom House’s board, along with

that of another company, Insight Human Services, remaining as an

“advisory” group. (Doc. 41-10 at 6-7; see Doc. 44-5 at 17-18.)

The three boards retained their “name, mission, region, [and]

independence” but were to report to the Daymark board and

management team. (Doc. 41-10 at 6-7.) Daymark assumed control

over Freedom House’s Mobile Crisis Team (Doc. 56-3 ¶¶ 5-6), which

Daymark refers to as the “Mobile Engagement Team” (Doc. 116 at 3

(citing Doc. 63-2 ¶¶ 3-4)). Daymark’s Director of its Mobile

Crisis Division, Kim Anthony-Byng, interviewed and hired Webb for

a full-time evening position as a Mobile Crisis Clinician, which

was a part of Freedom House’s Mobile Engagement Team, in December

2018. (See Doc. 53-14 at 2; Doc. 56-6.) The Mobile Crisis Team

“provides crisis intervention and prevention to individuals who

request assistance for a crisis related to mental health, substance

abuse, or development disability concerns.” (Doc. 56-3 ¶ 4.)

Freedom House’s client calls were routed through Daymark’s

dispatch center (Doc. 56-3 ¶ 5), and Daymark’s Director of Mobile

Crisis Division oversaw Daymark’s command center and Freedom

House’s Mobile Engagement Team (Doc. 63-2 ¶¶ 3-4). This was to

ensure Freedom House complied with applicable standards. (Doc.

63-2 ¶ 4.) Freedom House’s Mobile Crisis Clinicians reported to

a Freedom House team lead, and the Team Lead reported to Daymark’s

Director of Mobile Crisis Division until January 2020 when Freedom

House’s Clinical Director took over supervision of the MET. (Doc.

116 at 3 (citing Doc. 56-3 ¶ 6; Doc. 44-5 at 27-28.)

Freedom House, through the Mobile Engagement Team Lead, Detra

Baker, sent Webb a letter dated December 26, 2018, offering him a

“full-time, salaried, non-exempt position as a Mobile Crisis

Clinician beginning January 2, 2019.” (Doc. 53-20 at 2.) The

letter stated he would work “Monday through Thursday on the 5:00

p.m. to 8:00 a.m. shift” and he would be put on a “three-month

probation period,” at the end of which “an evaluation of job

performance will be conducted” by his direct supervisor, Baker.

(Id.) The letter advised Webb that he would then “either be given

regular agency status, three additional months of probation[,] or

terminated.” (Id.) Webb signed the offer letter on January 19,

2019. (Id.) In October 2018, before signing the Freedom House

letter, Webb had previously signed a compliance letter regarding

use of his electronic signature “during [his] employment with

DAYMARK Recovery Services.” (Doc. 53-18.) Also, Daymark supplied

him a computer and cell phone (Doc. 41-6 at 32-33), and Anthony-

Byng regularly conducted trainings with him and others (Doc. 44-6

at 48-49).

As a part-time clinician prior to 2019, Webb covered three

counties (Orange, Durham, and Person), but his caseload increased

to covering five counties (Orange, Durham, Person, Caswell, and

Alamance) after becoming a full-time clinician. (Doc. 53-2 at 78-

79; Doc. 53-6 ¶ 17.) As a member of the MCC, Webb was tasked with

responding to “acute mental health breakdowns, drug or alcohol

overdoes, suicidal individuals, or violence or threats to third

parties,” and therefore it was “critical that [Webb] act quickly”

when receiving calls. (Doc. 56-3 ¶ 11.) He was responsible for

“documenting interactions with clients and submitting information

that would permit [Freedom House] to bill insurers for the services

provided.” (Id. ¶ 12.) “MCCs were required to enter notes for

each call into Daymark’s electronic system” and “to complete

clinical assessments, for which [Freedom House] could receive

reimbursement, and to document the client services into Freedom

House’s system, called ‘Alpha’ or ‘Wellsky’.” (Id. ¶¶ 13, 14, 17;

see also Doc. 53-2 at 80-81.) The information gathered in an

assessment is used “to evaluate the individual’s mental state and

determine appropriate services.” (Doc. 56-3 ¶ 15.)

As a part-time MCC member, Webb previously received a “flat

rate [of $50] for [being] on-call” and an hourly rate of $18 when

he responded to a call. (Doc. 44-6 at 28-30.) In his full-time

position, however, his offer letter stated that the “position has

a gross annual salary of $37,440.00” with a “semi-monthly gross

salary” of “$1,560.00,” which “includes a stipend for working the

evening shift.” (Doc. 53-20 at 2.) Webb also worked part-time

shifts on Friday, Saturday, or Sunday. (Doc. 53-2 at 98-99.)

After Webb received his first paycheck as a full-time employee

in early 2019, he believed he was not being paid for all hours he

worked. (Doc. 53-2 at 93; see also Doc. 53 at 15 n.38 (comparing

Doc. 53-8 with Doc. 53-9).) He first spoke with Anthony-Byng about

his pay because she approved his salary. (Doc. 53-2 at 96.) He

then spoke with Ivy Williams, Freedom House’s Director of Human

Resources, but she directed him back to Anthony-Byng because, she

said, “Daymark is who’s paying your salary.” (Doc. 53-2 at 121-

123, 125.) In March 2019, Webb and Anthony-Byng spoke again about

the discrepancies between his timesheets and paycheck. (Doc. 53-

2 at 125-126.) Webb says that Anthony-Byng gave him “a couple of

choices” – he “could leave” or he “could go back to the position

[he] had before as a health care counselor.” (Doc. 53-2 at 126.)

About a week later, Webb met with Williams and Anthony-Byng

together, and Anthony-Byng explained that he was being paid for

the hours of 5:00 p.m. to 3:00 a.m. “and that’s how they were going

to pay [him].” (Doc. 53-2 at 128.) Webb “didn’t have a response”

except that he would continue saving his time sheets. (Id.) Webb,

in addition to his scheduled shifts, took extra shifts and entered

that time into the pay system (known as “PrimePay”) along with the

time he worked for his regular shifts until about July or August

2019. (Doc. 116 at 7.) Webb did not speak to Williams or Anthony-

Byng about his pay between April 2019 and January 2020. (Doc. 53-

2 at 130; see Doc. 41-6 at 64-65 (Webb noting that he spoke to

Anthony-Byng sometime in January 2019, “two weeks later,” and then

“three months after the two week conversation.”).)

In June 2019, Webb received an overall positive performance

evaluation that stated he did not require any change to his job

description; his attendance/punctuality and professional

relationships were “excellent”; his customer support, task

performance, and professional development were “acceptable”; but

his documentation, including sending dispositions at the end of

each shift, “needs improvement.” (Doc. 53-4 at 1-4.) The

dispositions were important because Daymark could not access

Freedom House’s electronic medical records and clinicians needed

to complete dispositions and forward them to dispatch who could

determine how clients had been assisted and which clients needed

further assistance. (See Doc. 41-4 at 60-62.) Around this same

time, Webb was supervised by Byron Brooks, Ph.D., and was required

to attend one-hour weekly individual meetings to develop the skills

necessary to fulfill “12 Core Functions.”1 (Doc. 56-13.)

In July 2019, Webb’s Team Lead changed from Baker to Burkert.

(Doc. 56-3 ¶ 8.) The same month, Webb’s son was seriously injured

after being pushed out of a moving vehicle and remained in a

hospital in Baltimore, Maryland. (Doc. 53-2 at 111-12.) Webb

told Williams he needed eight weeks to stay with his son. (Doc.

53-2 at 116.) Webb was told to go care for his son and that

Williams would take care of his leave. (Doc. 53-2 at 110-116.)

He was, however, never advised of his rights under the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. (Doc. 116 at

9-10 (citing Doc. 53-2 at 188); Doc. 53 at 16 (citing Doc. 44-6 at

123; see Doc. 44-4 at 58-59).) After Webb was with his son for

two weeks, Trish Burkert, Webb’s supervisor at Freedom House, told

him to return to North Carolina to work. (Doc. 53-2 at 117-118.)

Webb admits that these were “extra shifts that [he] signed up for,”

but says he “forgot” about them. (Doc. 53-2 at 118.) He returned

to work for one week before leaving again for Maryland to stay

1 Anthony-Byng, as Daymark’s Mobile Engagement Director, signed Webb’s

June 2019 evaluation noting his issues with documentation. (Doc. 53-4

at 3-4.) In 2019, the Freedom House Mobile Crisis Clinicians reported

to a Team Lead, who was employed by Freedom House, and the Team Lead

reported to Anthony-Byng. (Doc. 56-3 ¶¶ 6-8.)

with his son. (See Doc. 53-2 at 118-20.) In total, Webb took

five weeks of non-continuous leave from work. (See Doc. 53-2 at

118-20; see Doc. 44-6 at 123-24.) When Webb first returned to

work around August 2020, no one acted negatively toward him and no

one “did anything different” toward him. (Doc. 53-2 at 120-121.)

In October 2019, a team lead for Daymark informed Burkert,

Webb’s team lead at Freedom House, that dispatchers were

complaining to her about Webb’s attitude when he received a call

for Person Memorial Hospital, noting that he would suck his teeth,

take deep breaths, and make long sighs, among other things. (Doc.

116 at 10-11 (citing Doc. 56-9).) When Webb responded to the call,

he failed to update the hospital with his arrival time. (Doc. 56-

9.)

The following day, Burkert completed an “Employee

Disciplinary Action Form” for Webb and noted that he had an

“attitude with dispatch operators, asking who else is available to

take calls” instead of him; that he did not return phone calls,

texts, or emails with team leads; that he used poor communication

with the program director and team lead; and that his late work

made other clinicians’ work late. (Doc. 53-23 at 3-4).) Webb

acknowledges having had a meeting in September or October 2019

with Anthony-Byng and a Team Lead to discuss an issue with a

dispatcher who repeatedly called him when he was attending to a

client at an elementary school and he recalls signing “a piece of

paper.” (Doc. 41-6 at 67-69.) At his deposition, Webb also

acknowledged that he spoke to Burkert once “concerning calls coming

into the crisis unit” when “they said I was talking back, being

vocal to dispatchers.” (Doc. 53-2 at 192-93.) Though Webb admits

that it is his signature on the disciplinary form (Doc. 53-2 at

148), he states that he does not “remember that paper” (id.) and

surmises that perhaps one of the Defendants attached his signature

to the document (id. at 149), although he does not offer any

evidence of this allegation. Webb denies having conversations

with anyone regarding the problems enumerated in the October 2019

form (see Doc. 53-2 at 144-45) but concedes having had “one

conversation about the e-mail system being down” and speaking with

Burkert about “her having to resend e-mails to you to get a

response” (Doc. 53-2 at 146). He also acknowledges that he was

“instructed to return all phone calls, texts, and e-mails to the

team lead program director and dispatch within 24 hours.” (See

Doc. 53-2 at 147-48.) Overall, though, he testified that no one

ever had a conversation with him about any of the issues identified

in the disciplinary action. (Doc. 41-6 at 69 (agreeing that no

one from Daymark had disciplined him); Doc. 53-2 at 143-149, 192-

193.)

Throughout October 2019, Burkert continued to have problems

with Webb’s dilatory communication and notified Williams and

Anthony-Byng. (Doc. 56-10.)

In mid-January 2020, Burkert inquired about Dr. Brooks’

clinical supervision of Webb. (Doc. 53-28 at 4.) She learned

that Dr. Brooks had not seen Webb in months. (Id. at 3-4.) Dr.

Brooks’ impression of his supervision of Webb was “that it was in

prep for CSAC” and he “saw it as a favor for the previous MET

supervisor.” (Id. at 2-3.) After learning this, Anthony-Byng

supported a write-up of Webb, as did Williams, but Williams also

explained that Webb’s responsibility to follow up with Dr. Brooks

may not have been made clear to him. Nevertheless, she noted that

they had “gone through this several times and Johnnie has been

here long enough to know that he needs to receive supervision which

has been documented on agency forms.” (Doc. 53-28 at 2-3; Doc.

56-14.)

A few days after those discussions, on January 16, Burkert

emailed Webb to schedule a meeting to start his clinical

supervision “ASAP” because “it is a state requirement.” (Doc. 56-

15.) A few days later, she emailed Webb (a second time) about

months’ old care reviews that he had yet to complete and send to

Khara Saunders. (Doc. 57-2.)

On January 22, Burkert sent another email to Webb copying

Griffin-Dolciney (Freedom House's Clinical Director who would soon

take over the MET), Anthony-Byng, and Williams:

Johnnie,

I have not received a response from you about

supervision. I do not want to have to write you up, but

if I do not get a response to the questions I posed in

the email below AND if you do not connect with me about

setting up weekly supervision, I will not hesitate to do

so.

It is my understanding from Ivy that you are fully

aware that you need supervision. Every day that goes by

with you not doing supervision is another day that puts

MET at risk if we get audited. As it stands, it has

already been too long that you’ve been without

supervision, so we are already at risk. I have asked

more than once for you to meet with me about this. The

first time you were supposed to call me after your

doctor’s appointment (the day of the staff meeting) and

I never heard back from you, and the second time you

asked to reschedule because your doctor wanted you to go

home and rest, but then you never followed up with me;

I also texted you on the 17th asking you to please

respond to this email.

Johnnie, I need your response to this email,

answering all of the questions I posed, and letting me

know what time you can meet with me tomorrow afternoon

to talk about starting supervision. If I do not receive

a complete response from you by the end of tonight’s

shift, I will move forward with disciplinary action.

And, know that part of your supervision with me is going

to be talking about communicating via email and

workplace professionalism.

(Doc. 56-15 at 1.)

That same day, Anthony-Byng sent an email to Burkert,

Williams, and Griffin-Dolciney expressing her concerns about Webb:

Trish, Thank you for your email. Ivy and Heather,

Johnnie has continued to be a problem over the last

several months. It feels like we beg him to do his job

and to work as he is supposed to. I have emailed him at

least 5 times or so over last few months, encouraging

him to stop putting needs no follow up on dispositions

for clients who could use some follow up, but he never

changes what he does, continuing to put needs no follow

up as if my words mean nothing. I know it is a process,

but just wanted you to know that he is just not

appropriate for this level of service in my opinion. He

lacks the sense of urgency that you need to do crisis

work. I took Johnnie off of this email.

(Doc. 57-3 at 1.) As an example, Williams testified, residents

from a Durham housing project were displaced to local hotels, and

Alliance, the managed care organization for Durham, requested MCCs

to come onsite and speak with residents to offer mental health

services and assistance. (Doc. 44-6 at 129-130.) Burkert, Webb,

and other clinicians responded. (Id.) All except Webb returned

having made referrals for follow-up. (Id.; Doc. 56-3 ¶ 24.)

Williams, Burkert, Anthony-Byng, and Griffin-Dolciney

continued discussing Webb’s performance on January 22, 2020.

Williams wrote that she and Burkert “met with [Webb] a few months

back when she was about to write him up for failing to respond to

her emails, he swore that he would be more diligent.” (Doc. 62-4

at 2.) She found Webb’s behavior to exhibit “Negligence, Failure

to Follow Instructions [Written and Oral], and Insubordination.”

(Id.) Burkert replied that she “wrote [Webb] up” previously about

his issues and that she believed Webb should be terminated if it

was correct that he had only two weeks of supervisions forms from

May 2019 to January 2020. (Id.)

Dr. Brooks told Griffin-Dolciney and Williams that Webb had

called numerous times to cancel or reschedule saying he was busy

or tired, and, until Webb “popped in” after he returned from

Maryland to say he wanted to restart their sessions (which they

did not do), Dr. Brooks thought Webb was no longer with Freedom

House. (Doc. 62-4; Doc. 56-14.) On January 28, Burkert emailed

Webb again about the need to begin his clinical supervision and

warned him that if he did not address the issue that week, she

would remove him from the schedule until he was “re-engaged in

supervision.” (Doc. 53-24 at 3.) Webb testified that he recalled

missing supervisory meetings only when he was in Maryland with his

son, although he could not say that he went to all of his clinical

supervision meetings in 2020. (Doc. 53-2 at 152-53.)

On January 30, Burkert once again emailed her MET staff,

including Webb, about email responsiveness, their responsibility

for maintaining both email accounts, their accountability for the

information being sent, and to alert her if there were technology

issues so she could address them. (Doc. 53-25.) In addition,

Burkert reminded the staff of their job responsibilities and

deadlines. (Doc. 53-25.)

On January 30, Burkert also completed another “Employee

Disciplinary Action Form” as well as a “Performance Improvement

Plan” for Webb. (Doc. 53-23 at 6-7.) The form states that Webb

failed to return emails, as directed in the October 2019 form;

missed 26 of 52 sessions for 2019 and did not communicate with his

team lead about restarting supervision in 2020; and did not meet

the minimum productivity requirement for January because he only

completed three client assessments for the month. (Doc. 53-23 at

6.) Webb admits his signature on the document (Doc. 53-2 at 149-

50) but does not recall signing it, saying that he would know if

he had done so (id. at 150-51). Webb concedes, however, that he

had a conversation in or around January 2020 about “failing to

respond to e-mail communications as previously addressed in the

October 2019 discipline.” (See Doc. 53-2 at 150-51.) He also

admits missing “some” of his required clinician appointments, as

noted on the disciplinary form, but does not recall missing twenty-

six. (Id. at 152.) Further, he states that even though his

Daymark e-mail was always “fine,” he did not recall receiving two

emails from Burkert regarding his supervision and argues that he

did not receive them because he “do[es]n’t work that time of the

day.” (See Doc. 53-2 at 158-161.) Webb challenges the information

on the January 30, 2020 form as inaccurate. (See Doc. 53-2 at

150-56.)

Also sometime in January 2020, Webb asked Williams and Keith

Haynie, the Outpatient Program Director for Freedom House, for

information on how to obtain copies of his timesheets. (Doc. 53-

2 at 136-37.) Williams provided copies of timesheets, but instead

of his PrimePay timesheets (reflecting the hours Webb recorded in

the computer), these timesheets were labeled “Freedom House” and

did not include the same information as his PrimePay timesheets.

Williams nevertheless told Webb that was “the paperwork that

Freedom House had.” (See Doc. 53-2 at 130-134.) Webb also spoke

with Williams about his timesheets sometime in February 2020. (Id.

at 135.) According to Webb, Williams told him that he would need

to create an account in PrimePay to pull records for himself.

(Doc. 53-2 at 135-36.)2 He then asked LeWandra Edwards, Freedom

House’s HR Assistant, for his timesheets, and she provided them

for January 1, 2019, through February 2020. (Doc. 53-2 at 139.)

Williams testified that Webb did not complain to her about not

being paid what he thought he was owed, and Williams does not

recall anyone ever mentioning to her that Webb complained about

his salary. (Doc. 44-6 at 140-144.)

Burkert shadowed Webb throughout February 2020, and his

productivity improved. (See Doc. 57-4.) At some point in February

2020, Anthony-Byng left her role as Director of Daymark’s Mobile

Crisis Division, although she remained employed by Daymark. (Doc.

63-2 ¶¶ 2-3, 12.)

On April 2, however, Burkert emailed Webb about continued

problems, noting, among other things: "ongoing issue[s] with [his]

2 Webb’s briefing has other characterizations that ultimately rely on

inadmissible evidence. For example, Webb cites Haynie’s declaration,

which purports to relay Williams’ conversation with Webb with

characterizations that Webb’s request was met with “pushback,” that

Williams was “unhelpful,” and that “HR had a very ‘how dare you challenge

us’ reputation.” (Doc. 53-5 ¶¶ 23, 24.) This is all inadmissible

hearsay, is speculative, and lacks foundation. Indeed, much of Haynie’s

declaration contains hearsay. (E.g., id. ¶ 25 (“It is my understanding

that Johnnie again requested his time records from HR . . . .”).) Webb

also relies on Everett’s declaration for the statement that “[t]o my

recollection, she [Williams] gave him [Webb] a hard time about his

complaint.” (Doc. 53-6 ¶ 22.) Again, there is no foundation for Everett

having personal knowledge of this otherwise hearsay statement.

communication;" his "recently [having] been on probation in part

for not checking [his email];” their working together extensively

to resolve his phone complications so he could receive emails; and

her reminder that he recently signed a policy that he agreed to

check his emails three times per shift but because he has "not

been reading [his] emails, [he] was now days behind everyone else

in making follow-up calls, which has resulted in mobile crisis

losing money." (Doc. 53-27 at 2; Doc. 57-6 (same).) In this same

email, Burkert told Webb that “by continuing to act against the

plan that we set out in your last write-up, your job is at risk of

being terminated.” (Id.)

On April 3, Burkert sent another email to Webb in which she

warned: “I need a response from you for EVERY email I send out,

regardless as to whether I ask for one or not” and cautioned him

that “[a]ny email that I do not get a response to will end with

you being written up again.” (Doc. 57-7 at 1.) Burkert noted her

concern that Webb was not “fully aware of what’s being asked of

the team right now.” (Id.) She concluded with the admonition, “I

will not fight to keep you employed if you continue to shirk your

responsibilities. This is truly unacceptable and cannot continue

to happen without very significant consequences.” (Id.)3

3 Burkert also noted that because of the pandemic, they were conducting

patient evaluations over the phone and over telehealth, and she directed

Webb to review his old emails and set-up a program called “Doxy Clinic.”

(Doc. 57-7 at 1.)

By May, Burkert drafted another Employee Disciplinary Action

Form in support of terminating Webb for failure to respond to all

emails, poor response time for crises, and failure to assess a

client over the phone who could not participate in telehealth, and

she sent it to Williams and Heather Griffin-Dolciney,4 a clinical

director with Freedom House. (See Docs. 57-8, 57-16, 44-5 at 13.)

Williams corresponded with Cathy Shoaf, Daymark’s Director of

Human Resources, about Webb’s past disciplinary forms for her

review. (Doc. 62-5.)

On May 6, 2020, Burkert exchanged emails with Webb, outlining

his twelve outstanding “care reviews” and requested that he respond

to her, Williams, and Griffin-Dolciney with an explanation. (Doc.

57-9.) Burkert also noted that she had “sent several emails” about

completing assessments and that she and Webb spoke in March about

completing care reviews in certain circumstances. (Id.) Further,

another worker, Khara Saunders, could not complete requisite

reports for the state of North Carolina because Webb did not

complete his work timely. (Id.) Williams advised Burkert and

Griffin-Dolciney on May 8 that they needed to do a “90-day

Performance Improvement [Plan] identifying up to three essential

4 Griffin-Dolciney states she had limited interactions with Webb while

he was employed by the MCC but did know him. (Doc. 44-5 at 26.) While

she never directly supervised Webb, Griffin-Dolciney supervised his last

supervisor, Burkert, sometime in 2020 when Anthony-Byng was no longer

Burkert’s supervisor. (Doc. 44-5 at 27-28.) Griffin-Dolciney does not

recall hearing of Webb’s alleged wage complaints. (Id. at 28.)

functions that must be done in a specific fashion and timeframe.”

(Doc. 57-10.) She concluded that “[f]ailure to do them as outlined

will result in his termination.” (Id.)

On May 20, Burkert sent an email to Williams and Griffin-

Dolciney with an attached productivity sheet that detailed Webb’s

poor performance in April, and she requested a meeting to discuss

Webb’s removal out of fear of that Webb was jeopardizing her

professional license. (Doc. 57-11.) In relevant part, she wrote:

Johnnie is not competent to be in this position. He is

finding ways to get around having to take calls and in

doing so, is endangering the most at-risk client

population we serve. . . . My take: financially, he is

not even coming close to covering his own salary; his

professional irresponsibility and incompetence adds

considerably and consistently to my professional duties;

in evading 18 out of 19 calls, he is clearly showing an

inability to do the work; he failed to complete any

clinical documentation in the electronic health record

for 19 out of 20 calls; and, he lied in a client's

clinical record about his arrival time, not by a few

minutes but by an entire hour. I am requesting a

conversation with both of you to discuss Johnnie’s

immediate removal from MET, as I no longer feel capable

of supervising him without significant risk of

jeopardizing my own license.

(Id. at 1-2.)

Burkert emailed Webb about the lack of documentation for 19

of 20 calls in April. (Doc. 56-3 at 16.) For his part, Webb

disputed this characterization of his work and said he was “very

good at what [he] did, [he] answered each and every call that [he]

received,” and he was “[v]ery confident” the data would show that

those 19 people “declined an assessment.” (Doc. 53-2 at 163-167.)

Griffin-Dolciney approved of Burkert’s reaching out to the

clients from whom Webb had taken calls in April, and it was

determined that he falsified documentation in Daymark’s electronic

system per the reports of some of the clients and/or their family

members. (Doc. 56-3 ¶ 38; Doc. 62-6.) Having reviewed Burkert’s

notes from her calls, Griffin-Dolciney told Burkert and Williams,

“[I]t seems he left vulnerable clients without needed support and

potentially damaged the good name of the team by doing this.”

(Doc. 62-6 at 2.) She recommended considering a complaint to the

appropriate certification body because of his unethical behavior.

(Doc. 62-6 at 3.)

Burkert again expressed to Griffin-Dolciney and Williams that

she did not want Webb on her team because “[h]e represents a known

risk, and [she] [would] not continue to have him work under [her]

license. It is far easier . . . to cover his shifts than continue

to work as hard as [she had] been working to document his many

professional failings.” (Doc. 62-6 at 4.)

On May 26, 2020, Shoaf sent an email to Williams in which she

outlined Webb’s write-ups, failures to respond to supervisors,

poor productivity performance, and her concerns about “poor client

care.” (Doc. 62-7 at 2.) Shoaf wrote that the “recommendation of

the direct supervisor and Regional Director is termination,”

noting that “[t]his would be supported by agency procedure as it

does not require specific disciplinary process.” (Id.) Shoaf

contacted Anthony-Byng at Daymark, who at one time had supervised

a Freedom House team, who confirmed many of the problems with Webb.

(Doc. 57-13 at 1.) While Shoaf noted that she was concerned about

Webb’s “tenure, race, age and fact that [the] employee’s

documentation issue has not been specifically address (sic) at

least not in writing with [a] plan of correction put in place” and

that Webb’s performance improved when he was directly supervised,

she concluded that “when direct accountability stopped, he went

back to his old habits.” (Id.)

That same day, Shoaf emailed Duncan Sumpter (interim Freedom

House Director) and Jay Miller (interim Freedom House CEO) as

follows:

We have an employee, Johnnie Webb, who has been

with Freedom House since 12/2000 and worked in MET

(mobile crisis) since 2018. This employee was written

up in October and again in January for basically not

following through with appointments, responding to

supervisor, returning calls etc. Documentation was not

a main issue addressed in these write ups. Johnnie

continues to have issues and since April has failed to

do assessments on approximately 20 clients even though

he knows protocol is to do assessments on at least 75%

of client calls. He received training on all protocols.

This is poor client care and could certainly create

liability issues due to lack of documentation.

The recommendation of the direct supervisor and

Regional Director is termination. This can be supported

by agency procedure as it does not require specific

disciplinary process (see pages 20-21 of Personnel

Policies attached). Also, I spoke with Kim Anthony-

Byng, Daymark employee who was over FH MET team for about

1 year. Kim confirms all the same issues that current

supervisor is seeing. Kim said that she had to stay on

top of him all the time to get him to go out to see

clients and that she had problems with his failure to do

assessments. Kim states that it was his normal process

not to do assessments and he always had excuse as to why

he did not do one. I do need to point out that employee’s

supervisor worked directly with him for about 30 days

and employee did his job including assessments. However,

when direct accountability stopped, he went back to his

old habits.

I have some concern of potential issues for the

agency due to employee’s tenure, race, age and fact that

employee’s documentation issue has not been addressed in

writing with plan of correction put in place; but, I

think the potential liability for client care outweighs

risk to agency. Therefore, I agree with termination

recommendation. . . .

(Doc. 41-11 at 2-3.)

Miller responded that he had spoken with Sumpter and they

agreed on termination because of the “potential liability to client

care and the agency.” (Doc. 41-11 at 2.) Shortly thereafter,

Shoaf emailed Williams that Webb was to be terminated and outlined

the steps to do so, including informing Griffin-Dolciney and

Burkert. (Id.) Webb’s employment was terminated that same day.

(Doc. 116 at 21; Doc. 53.)

While Webb alleges that he was retaliated against, he

testified in his deposition that he never spoke with Shoaf or

“anyone in Daymark’s human resources department.” (Doc. 41-6 at

66-67.) Moreover, he said, “No one from Daymark ever disciplined

me.” (Id. at 67.)

After his termination, Webb filed a charge against Defendants

with the North Carolina Department of Labor for failure to pay

wages and for retaliation and, after no action, received a right-

to-sue letter. (Doc. 19 ¶ 101.) Thereafter, he filed this lawsuit

alleging violations of various federal and state laws. (See

generally, Doc. 19.)

In his amended complaint, Webb alleges the following claims.

Counts One and Two allege that both Defendants violated the FMLA

and North Carolina Wage and Hour Act by failing to pay correct

wages, including overtime. (Doc. 19 ¶¶ 103-133.) Count Three

alleges that both Defendants violated the FMLA by interfering with

and not informing Webb of his FMLA rights. (Id. at ¶¶ 134-147.)

Count Four alleges that both Defendants violated the FMLA by

retaliating against Webb for attempting to exercise his FMLA

rights. (Id. ¶¶ 148-153.) Webb alleges that he was wrongfully

discharged (id. ¶ 150) and that Defendants retaliated against him

prior to termination by “harassing [him] for taking limited leave

to help care for his son in the hospital [and] chastising [him]

that Defendants need [him] to return to work” (id. ¶ 151). Count

Five alleges that both Defendants violated the Fair Labor Standards

Act by terminating him after he inquired about and reported

Defendants’ compensation practices. (Id. ¶¶ 154-160.) Count Six

alleges that Freedom House violated North Carolina’s Retaliatory

Employment Discrimination Act, N.C. Gen. Stat. § 95-24 et seq., by

treating Webb in a hostile manner and terminating him after he

inquired into Freedom House’s pay practices. (Id. ¶¶ 161-171.)

Finally, Count Seven alleges that Freedom House violated North

Carolina public policy by terminating Webb. (Id. ¶¶ 172-179.)

On June 6, 2022, Webb moved for summary judgment against both

Defendants on all claims (Doc. 52), and Freedom House moved for

summary judgment against Webb (Doc. 54). Daymark did not move for

summary judgment.

On December 20, 2022, Judge N. Carlton Tilley, Jr., issued a

36-page memorandum opinion and order denying Webb’s motion for

summary judgment as to all claims but granting Freedom House’s

motion for summary judgment as to Webb’s claims of FLSA

retaliation, FMLA retaliation, REDA violations, and wrongful

discharge. (Doc. 116 at 36.) The court found that even if Webb

could make out a prima facie case for retaliation, he proffered

insufficient evidence from which a jury could reasonably find that

Freedom House’s proffered explanation for his termination was

pretextual. (Id. at 31-32.) The court noted that Webb was

notified continuously about his performance issues as early as

June 2019 and that they were numerous and prolonged. (Id.)

The remaining claims against Freedom House and Daymark were

thus set for trial during the January 2023 civil term of court,

and the case was re-assigned to the undersigned who was to preside

over that trial term. (Doc. 84.) A final pretrial conference was

held on January 3, 2023, at which time the court inquired as to

whether the retaliation claims against Daymark should survive

given the court’s summary judgment decision as to Webb's parallel

claims against Freedom House. Following discussion with counsel,

the court re-opened the deadline for Daymark to move for summary

judgment. (Doc. 132 at 13-14.)

Daymark now moves for partial summary judgment as to the

retaliation claims against it (Doc. 130), and Webb moves for

reconsideration of Judge Tilley’s grant of the partial summary

judgment in favor of Freedom House based on purported newly-

discovered evidence (Doc. 136).

II. ANALYSIS

Webb’s motion for reconsideration5 will be considered first,

followed by Daymark’s motion for summary judgment.

A. Motion for Reconsideration

“Where a district court issues an interlocutory order such as

one for partial summary judgment ‘that adjudicates fewer than all

of the claims,’ the court retains discretion to revise such order

‘at any time before the entry of a judgment adjudicating all the

claims.’” Carlson v. Boston Scientific Corporation, 856 F.3d 320,

325 (4th Cir. 2017) (citing Fed. R. Civ. P. 54(b)). However, when

compared to final judgments pursuant to Federal Rule of Civil

Procedure 59(e), the approach for Rule 54(b) “involves broader

5 Webb initially moved for reconsideration on January 24, 2023 (Doc. 134)

but filed an “Emergency AMENDED Motion for Reconsideration” (Doc. 136)

thereafter, which the court considers.

flexibility to revise interlocutory orders before final judgment

as the litigation develops and new facts or arguments come to

light.” Id. (citing Am. Canoe Ass’n v. Murphy Farms, Inc., 326

F.3d 505, 514-15 (4th Cir. 2003); Cobell v. Jewell, 802 F.3d 12,

25-26 (D.C. Cir. 2015)).

The Fourth Circuit, as have other circuits, cautions that

when one judge enters an order, a reviewing judge “should be

hesitant to overrule the earlier determination.” Id. (citing

Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1460 n.24 (5th

Cir. 1992)). Revisions of interlocutory rulings pursuant to Rule

54(b) should be construed similarly to the “law of the case”

doctrine. Carlson, 856 F.3d at 325. Under the law of the case

doctrine, “‘when a court decides upon a rule of law, that decision

should continue to govern the same issues in subsequent stages in

the same case.’” Id. (collecting cases.) To that end, there are

generally three limited circumstances under which a court may

revise interlocutory orders: (1) new evidence not previously

available, (2) a change in applicable law, or (3) clear error that

results in “manifest injustice.” See id. “‘A motion to reconsider

is not a license to . . . present new evidence’ that was previously

available to the movant.” Carrero v. Farrelly, 310 F. Supp. 3d

581, 584 (D. Md. 2018) (citations omitted).

Here, Webb’s motion for reconsideration rests on a contention

that he has discovered new evidence not previously available to

him that would change the outcome of the case. (Doc. 137 at 12.)

A party moving for reconsideration on the basis of newly discovered

evidence must show the following:

(1) the evidence is newly discovered since the judgment

was entered; (2) due diligence on the part of the movant

to discover the new evidence has been exercised; (3) the

evidence is not merely cumulative or impeaching; (4) the

evidence is material; and (5) the evidence is such that

is likely to produce a new outcome if the case were

retried.

Slavin v. Imperial Parking, Civ. Case No.: PWG-16-2511, 2018 WL

337758, *4 (D. Md. Jan. 9, 2018) (quoting Boryan v. United States,

884 F.2d 767, 771 (4th Cir. 1989) (other citations omitted)).

Webb proffers two forms of evidence that he contends are newly

discovered and support his motion for reconsideration. (Doc. 137

at 13-14.) First, he offers declarations from Michael Bridges,

Christy Jay, and Renita Harris. (Id. at 14; Docs. 133-2, 133-3,

133-5.) Second, he offers evidence of prior litigation and

investigations against Freedom House and Daymark involving persons

other than himself. (Doc. 137 at 13-14; Docs. 133-7, 133-8, 133-

9, 133-10.)

As to the witness declarations, Jay’s declaration states that

she began working for Freedom House in 2014 and was eventually

offered a full-time position on the Mobile Engagement Team. (Doc.

133-3 ¶ 1.) She discusses the “merger” of Freedom House and

Daymark, her salary negotiations leading up to her job with the

MCC, and her history with the company. (Id. ¶¶ 2-11.) She contends

that after the combination with Daymark, job duties became more

onerous and confusing, and at times she was concerned that Daymark

asked her to violate HIPAA regulations. (See id. ¶¶ 12-19.) She

also contends that since Webb filed this lawsuit, Freedom House

and Daymark have made changes regarding pay classifications,

supplemental pay notifications, and payment for overtime. (See

id. ¶¶ 30-31.) She states her belief that Webb’s lawsuit “made

Daymark and Freedom House realize they were violating the law” and

that it is her “duty to provide information regarding [her]

employment with Defendants, if it in anyway, [sic] assists Johnnie

[Webb] recover what he is entitled to under the law.” (Id. ¶ 34.)

Importantly, Jay states that she was a coworker of Webb’s, that

Webb made complaints about his wages, and that Webb was “extremely

committed” to his job, a fact she claims to know because she has

previously read Webb’s assessments. (Id. ¶¶ 35, 38.)

Harris’ declaration is much of the same. Harris states that

she worked with Webb at the MCC and that after the Defendants’

affiliation, workflow became confusing and documentation policies

changed. (Doc. 133-5 ¶¶ 1-18.) Further, she states that Webb was

“an extremely thorough clinician” whom she never “knew any client

to complain about” and was a reliable coworker who was regularly

available. (Id. ¶¶ 30, 31.) Harris recalls Webb complaining to

her and other MCC members about his pay. (Id. ¶¶ 32-33.) According

to Harris, she eventually went to the “Department of Labor”6 about

pay issues but declined to follow up out of concern for her job if

she reported either Freedom House or Daymark. (Id. ¶¶ 34-35.)

She was “surprised” to hear that Webb had been terminated, and she

offers her belief that Webb was terminated because of his

complaints regarding unpaid wages. (Id. ¶¶ 38-41.)

Bridges states in his declaration that he was a supervisor at

Freedom House from 2013 to 2018. (Doc. 133-2 ¶ 1.) He supervised

Webb when he worked in the MCC in 2017, was impressed with him,

and found him to be “thorough, committed, empathetic and diligent.”

(See generally, id.)

Webb contends that the declarations contain newly discovered

information since the judgment was entered because he filed them

on January 24, 2023, “several weeks after the Court’s December 20,

2022” decision. (Doc. 137 at 14.) This evidence was unavailable,

Webb contends, because Jay and Harris were reluctant to testify

previously out of fear of retaliation. (Doc. 137 at 16-17; Doc.

145 at 7.) Webb argues that such “fears of reprisal [are] a valid

reason for why evidence was not discovered previously.” (Doc. 137

at 15-17; Doc. 145 at 7 (citing Weathers v. Univ. of North Carolina

at Chapel Hill, No. 1:12cv1059, 2014 WL 198216, at *3 (M.D.N.C.

Jan. 15, 2014); Maylie v. Nat’l Passenger R. Corp., CIV. No. 81-

6 It is unclear whether she means the state or federal agency.

1964, 1989 WL 153948, at *3-4 (E.D. Penn. Dec. 14, 1989)).) In

support, Webb cites Harris’ declaration where she states that she

was concerned about losing her job if she complained about

Defendants’ pay practices and that she “personally decided to reach

out to the Department of Labor in the past because she was

concerned about the compensation practices.” (Doc. 137 at 18

(citing Doc. 133-5 ¶¶ 34-36).) Webb argues Bridges’ declaration

is new evidence because “Defendants also failed to discover

Bridges’ testimony prior to the Court’s summary judgment order.”

(Doc. 145 at 8.)

Freedom House responds that the declarations are not newly

discovered because Webb identified Jay and Harris in his initial

discovery disclosures at the outset of the lawsuit pursuant to

Federal Rule of Civil Procedure 26(a)(1). (Doc. 143 at 9.)

Freedom House further notes that Harris’ declaration acknowledges

that she approached Webb’s counsel well before the court’s summary

judgment ruling, putting Webb on notice of her potential testimony.

(Id. at 10 (citing Doc. 133-5 ¶ 36).) In addition, Freedom House

notes, Webb stated in his March 2022 deposition that Jay was “more

than willing to testify.” (Doc. 143 at 9.) Further, Freedom House

points out that Jay’s declaration fails to state when in December

2022 he spoke to Plaintiff’s counsel. (Doc. 143 at 9.) With

respect to Bridges’ declaration, Freedom House argues that there

is no evidence as to when Bridges contacted or was contacted by

Webb and, therefore, his declaration cannot support a finding it

was newly discovered. (Doc. 143 at 11.) In short, Freedom House

maintains that none of the declarations warrants reconsideration

of the December 20, 2022 Order.

Webb replies that Jay’s testimony was discovered in the last

week of December 2022 and that it prompted further discussion with

Harris, notwithstanding that Harris’ declaration states she had

previously reached out to Plaintiff’s counsel. (Doc. 145 at 6-

7.) Webb also re-asserts Jay’s and Harris’s stated fears of

retaliation as bases for finding their testimony newly discovered.

(Doc. 145 at 7.)

Webb’s contention that the testimony of these witnesses is

newly discovered is unpersuasive. Webb knew of Jay and Harris as

early as November 21, 2021, seven months before Freedom House moved

for partial summary judgment (Doc. 54) and more than a year before

Judge Tilley granted partial summary judgment. Further, Webb’s

characterization of the caselaw is misguided, if not misleading.

Weathers did not find that “fears of reprisal” constituted a valid

reason for not submitting evidence in that case. Rather, this

court merely noted the plaintiff’s argument claiming that fears of

retaliation should justify consideration of the purported new

evidence before declining to find grounds to consider the evidence.

Weathers v. Univ. of North Carolina at Chapel Hill, No. 1:12cv1059,

2014 WL 198216, at * 3 (M.D.N.C. 2014). In Maylie, the plaintiff

sued his employer pursuant to the Federal Employer’s Liability Act

after he slipped and injured his back at work. Maylie, 1989 WL

153948, at *1. After the jury found for the defendant, Maylie

moved for a new trial on the ground that an agent of the defendant

used “coercive tactics to discourage employees from testifying.”

Id. The court understandably noted its concern with witnesses’

fears of retaliation if they testified, finding that the employer’s

“intimidation and constraint” at the workplace prevented a full

and fair presentation of evidence at trial. Id. at *2-3. There

was testimony from employees that a supervisor harassed employees,

carried a gun on his person, and unreasonably refused to allow

employees to return to work. Id. at *9. Here, in contrast, Webb

points only to the declarants’ self-professed general concerns of

retaliation. Absent is any evidence or claim that Freedom House

or Daymark threatened, much less fostered an atmosphere of,

intimidation and constraint that prevented either declarant from

voicing her concerns. Their desire not to become involved in a

lawsuit out of a subjective concern for retaliation, absent

evidence to suggest that a defendant has intimidated or constrained

them, as in Maylie, is insufficient on this record, especially

where Webb’s counsel disclosed both of their names as persons with

discoverable information at the outset of the litigation.

As for Bridges’ declaration, Webb does not even attempt to

respond to Freedom House’s contention that there is no evidence

that Webb could not have spoken to Bridges during the discovery

period. (See Doc. 145 at 8.) The court, therefore, finds that

Webb fails to meet his burden to show that Bridges’s declaration

constitutes newly discovered evidence, either.7

As to Jay and Harris, it is also important that neither ever

supervised Webb, and thus they lack personal knowledge to assess

his work record. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280

(4th Cir. 2000) (noting that the opinions of employees and co-

workers as to an employee’s work quality are “close to irrelevant”

in questions of pretext). As for Bridges, he admits that he worked

with Webb in 2017 and left Freedom House in 2018. (Doc. 133-2

¶¶ 1, 13.) Though he states that Webb received positive reviews

while they worked together (id. ¶¶ 13-15), the court has already

found that merely because Webb previously met expectations does

not mean that his employer’s later determination that he fell below

expectations is nefarious (Doc. 116 at 30-31 (citing Hill v. Belk

Stores, No. 3:06-CV-398, 2009 WL 2426314, at *4 (W.D.N.C. Aug. 5,

2009))).

Second, Webb relies on what he claims is newly discovered

court filings of alleged previous civil violations by Freedom House

7 Webb’s assertion that Bridges’s declaration constitutes new evidence

because the Defendant “also failed to discover Bridges’[s] testimony

prior to the Court’s summary judgment order” (Doc. 145 at 8) is

meritless. Whether Defendants knew of Bridges is irrelevant to whether

Webb should have known of him and obtained his testimony.

and Daymark. (Doc. 137 at 6-7; Docs. 133-7, 133-8, 133-9, 133-

10.) It is newly discovered, he argues, because he requested it

during discovery but it was not produced by Defendants. (Doc. 137

at 16 (citing Schultz v. Butcher, 24 F.3d 626, 630-31 (4th Cir.

1994)).) Webb points to his request for production of documents

number 15, which reads as follows:

Produce copies of all correspondence and other documents

sent to or received from the U.S. Department of Labor,

N.C. Department of Labor, or any other governmental

bodies, concerning any investigation of Defendant

related to Plaintiff’s claims.

(Doc. 37-4 at 29.) Freedom House responded, “Defendant will

produce documents responsive to this request.” (Id.) Webb

contends that “neither defendant produced any documents in

response to the same.” (Doc. 137 at 19.)8 Webb now argues that

“Previous investigations and lawsuits involving Defendants’ past

pay and FMLA practices are unquestionably related to Plaintiff’s

claims” whether or not they involve Webb. (Doc. 145 at 13 (citing

Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153, 155-56 (8th Cir.

1990)).) Webb bolsters his contention by arguing that it was

Harris’ new declaration testimony that “alerted Plaintiff’s

counsel of prior litigation against Defendants.” (Doc. 137 at

8 Freedom House contests this, stating that it “ultimately produced

responsive documents to this request, including documents contained

within the NCDOL’s file pertaining to [Webb’s] administrative REDA

Complaint.” (Doc. 143 at 6.) Whatever may have been produced is not

in the record. The docket does not reflect that Webb ever moved to

compel a response.

14.) He claims he thereafter acted with “due diligence” to obtain

the evidence. (Id. at 14-16.) Apparently, he requested the

information from the United States and North Carolina Departments

of Labor but did not receive responses until after the court had

advised on its ruling on summary judgment. (Id. at 19; see Docs.

137-1, 137-2.)

Freedom House responds that Webb’s requests for production

only sought investigations related to “Plaintiff’s claims.” (Doc.

143 at 5.) Thus, because previous litigation involved other

employees, it was outside the scope of the request. (Id.)

Additionally, Freedom House argues that Webb knew of these prior

lawsuits against it, because Webb referred to them in his

deposition in this case and discussed his involvement in one of

the lawsuits. (Id. at 5.) Further, Freedom House points out, in

response to another of Webb’s discovery requests about the effects

of previous litigation on Freedom House’s internal policies and

practices, it listed Joyce Harper as a company representative

familiar with that topic; however, Webb declined to question Harper

about any prior lawsuits or investigations during her deposition.

(Doc. 143 at 5-6 (citing Doc. 44-4).) Freedom House also points

out that Harris’ declaration only mentions a prior Department of

Labor investigation against Freedom House (id. at 6 (citing Doc.

133-5 ¶ 33)) and that, in any event, all court records were

publicly accessible at any time (id. at 5-7 (citing Doc. 133-10)).

Webb replies that while he testified about one lawsuit that

originated “over 15 years ago,” he did not testify about other

complaints he now submits; therefore, he did not know about these

other lawsuits. (Doc. 145 at 14; Doc. 145 n.12.) Further, he

contends, he did not need to seek documents from the various

departments requesting previous litigation information because he

relied on Defendants’ “certified responses.” (Doc. 145 at 14.)

In other words, Webb argues, Freedom House’s failure to produce

the documents rendered them not previously available to him such

that they should be considered newly discovered. (Doc. 145 at 14

(citing Knox Energy, LLC v. Gasco Drilling, Inc., 258 F. Supp. 3d

709, 732 (W.D. Va. 2017); Schultz v. Butcher, 24 F.3d 626, 630-31

(4th Cir. 1994)).) As to Harper, Webb surmises that she would

lack personal knowledge of prior lawsuits or investigations

because she worked for Freedom House after they took place. (Doc.

145 at 15.)

Webb’s arguments are wholly unpersuasive. The prior

litigation does not constitute newly discovered evidence. Webb

was aware of prior litigation, as he concedes in his deposition.

(Doc. 145 n.12 (citing Doc. 143-2).) Moreover, his request for

production of documents does not encompass what he now seeks to

offer, as the litigation and investigations he seeks to offer do

not relate to “Plaintiff’s claims” but to claims of others. (Doc.

37-4.) The lawsuits, moreover, were publicly available. Webb

could have located those documents at any time. As for the

investigations, Plaintiff’s counsel did not send its Freedom of

Information Act requests to the Department of Labor until December

5, 2022 (Docs. 137-1, 137-2), which was well after Freedom House’s

motion for partial summary judgment had been submitted to the court

and days after Judge Tilley had orally informed the parties of his

decision on the summary judgment motions (Doc. 96 (noting that

Webb’s summary judgment would be denied in full and Freedom House’s

would be granted in part).) While it is unclear when Harris spoke

with Plaintiff’s counsel about prior litigation, Harris’

declaration was signed on January 23, 2023, well after discovery

closed. (Doc. 133-5 at 13.) In short, the only reason Webb failed

to have this information earlier is his lack of due diligence.

Thus, the court records and investigations involving individuals

other than Webb are not newly discovered.9

As the court finds that Webb has failed to demonstrate that

he has newly discovered evidence that would alter the outcome of

Judge Tilley’s ruling, the court finds that he has failed to meet

his burden of establishing grounds to reconsider the court’s

December 20, 2022 grant of partial summary judgment to Freedom

House, and his motion to reconsider will be denied.

9 Even were the court to consider the declarations and litigation history,

they would not alter the court’s partial summary judgment decision for

the reasons explained in the court’s analysis of Daymark’s motion for

summary judgment.

B. Daymark’s Motion for Partial Summary Judgment

The court turns next to Daymark’s motion for partial summary

judgment on Webb’s claims for retaliation pursuant to the FSLA and

the FMLA.10 (Doc. 130 at 1.) Because the court re-opened the

period for filing this motion, the new evidence submitted by Webb

that the court did not consider on his motion for reconsideration

can be considered. As discussed below, the court will grant

Daymark’s motion for summary judgment.

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A genuine issue of material fact exists ‘if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party.’” Basnight v. Diamond Developers, Inc., 146 F.

Supp. 2d 754, 760 (M.D.N.C. 2001) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining a motion

for summary judgment, the court views the “evidence in the light

most favorable to the non-moving party, according that party the

benefit of all reasonable inferences.” Id. Summary judgment

should be denied “unless the entire record shows a right to

judgment with such clarity as to leave no room for controversy and

establishes affirmatively that the adverse party cannot prevail

10 Unlike his claims against Freedom House, Webb did not assert a REDA

or public policy claim against Daymark.

under any circumstances.” Guessford v. Pa. Nat’l Mut. Cas. Ins.

Co., 983 F. Supp. 2d 652, 659 (M.D.N.C. 2013) (quoting Campbell v.

Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)).

While the movant bears the initial burden of demonstrating

the absence of a genuine dispute of material fact, once that burden

has been met, the non-moving party must demonstrate the existence

of a genuine dispute of material fact. Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87

(1986); Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d

514, 521 (4th Cir. 2003). A mere scintilla of evidence is

insufficient to avoid summary judgment. Anderson, 477 U.S. at

252; Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (“[T]he

nonmoving party must rely on more than conclusory allegations,

mere speculation, the building of one inference upon another, or

the mere existence of a scintilla of evidence.”); see also Felty

v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)

(noting that there is an affirmative duty for “the trial judge to

prevent ‘factually unsupported claims and defenses’ from

proceeding to trial” (citation omitted)). Instead, the nonmoving

party must convince the court that, upon the record taken as a

whole, a rational trier of fact could find for the nonmoving party.

Anderson, 477 U.S. at 248–49. Trial is unnecessary if “the facts

are undisputed, or if disputed, the dispute is of no consequence

to the dispositive question.” Mitchell v. Data General Corp., 12

F.3d 1310, 1315–16 (4th Cir. 1993).

The FLSA and FMLA prohibit an employer from discharging or

otherwise discriminating against an employee because the employee

opposes an unlawful practice under the FLSA or FMLA. 29 U.S.C.

§ 215(a)(3) (FLSA); 29 U.S.C. § 2615(a)(2) (FMLA); see also Darveau

v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008) (quoting

Mitchell v. Robert de Mario Jewelry, Inc., 361 U.S. 288, 292

(1960)) (“The provision therefore effectuates enforcement of the

[FLSA’s] substantive provisions by removing ‘fear of economic

retaliation’ so that employees need not ‘quietly . . . accept

substandard conditions.’”).

Webb relies on the burden-shifting approach to establish his

FLSA and FMLA retaliation claims. See Waag v. Sotera Defense

Solutions, Inc., 857 F.3d 179, 191-92 (4th Cir. 2017) (noting the

elements for a prima facie retaliation claim under the FMLA are

that the plaintiff engaged in protected activity, the employer

took adverse action against him, and that the adverse action was

causally connected to the plaintiff’s protected activity). This

mirrors the burden shifting framework for Title VII cases as set

out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id.

(applying the McDonnell Douglas framework in FMLA case) (citing

Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 304 (4th

Cir. 2016) (same))). Accordingly, he must show that he suffered

an adverse employment action that is causally connected to

protected activity, and, if Daymark offers a non-discriminatory

explanation for the adverse employment action, that Daymark’s

reasons are pretextual. See Darveau v. Detecon, Inc., 515 F.3d

334, 340 (4th Cir. 2008) (FSLA claim); Yashenko v. Harrah’s NC

Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006) (FMLA claim).

Webb simply argues that there must be a “causal connection”

between a plaintiff’s complaints and retaliatory action.11 (Doc.

133 at 23.) While termination is clearly an adverse employment

action, for a retaliation claim the court also considers any

employer action that could reasonably be viewed by the employee to

discourage protected activity. Strothers v. City of Laurel,

11 The Supreme Court held that for Title VII employment retaliation claims

a plaintiff must show retaliatory animus was a but-for cause of the

adverse employment action. University of Texas Southwestern Medical

Center v. Nassar, 570 U.S. 338, 339 (2013). In evaluating Nassar against

the existing McDonnell Douglas framework, the Fourth Circuit has noted

that, “A plaintiff who establishes a prima facie case of retaliation

bears the ‘ultimate burden of persuading the court that [he] has been

the victim of intentional [retaliation].” Foster v. University of

Maryland-Eastern Shore, 787 F.3d 243, 252 (4th Cir. 2015) (citations

omitted). To carry this burden, “a plaintiff must establish ‘both that

the [employer’s] reason was false and that [retaliation] was the real

reason for the challenged conduct.’” Id. (citations omitted). Further,

the Fourth Circuit held that “the McDonnell Douglas framework has long

demanded proof at the pretext stage that retaliation was a but-for cause

of a challenged adverse employment action. Nassar does not alter th[at]

legal standard.” Id. In Foster, the court reaffirmed that a prima facie

case for retaliation requires a plaintiff to show that “he engaged in

protected activity, that [the employer] took adverse action against him,

and that a causal relationship existed between the protected activity

and the adverse employment activity.” Id. at 253 (citations omitted).

The Fourth Circuit has applied this standard in termination and

retaliation contexts such as “hiring, granting leave, promoting,

compensating, or discharging.” Page v. Bolger, 645 F.2d 227, 233 (4th

Cir. 1981); see Foster, 787 F.3d at 253.

Maryland, 895 F.3d 317, 327 (4th Cir. 2018) (noting in Title VII

context that “retaliatory actions do have to be ‘materially

adverse’ – such that they ‘might have dissuaded a reasonable

worker’ from engaging in protected activity”) (citing Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006))).

An employer’s proffered explanation is pretextual when it “is

unworthy of credence to the extent that it . . . permit[s] the

trier of fact to infer the ultimate fact of intentional

discrimination.” Dugan v. Albemarle Cnty. Sch. Bd., 293 F.3d 716,

723 (4th Cir. 2002). For example, “a factfinder may infer that an

employer’s post-hoc rationale is not a legitimate explanation for

an adverse employment decision.” Smith v. CSRA, 12 F.4th 396, 421

(4th Cir. 2021) (citing EEOC v. Sears Roebuck & Co., 243 F.3d 846,

853 (4th Cir. 2001)). Similarly, a factfinder may find pretext

when there are inconsistent justifications and a “total lack of

documentary evidence” of poor performance. Jacobs v. N.C. Admin.

Office of Cts., 780 F.3d 562, 575 (4th Cir. 2015). See also Haynes

v. Waste Connections, Inc., 922 F.3d 219, 225-26 (4th Cir. 2019)

(recognizing that “an employer is certainly permitted to expand on

its original reason for a termination” but evidence of “substantial

changes” “permits an inference of pretext”); Sears Roebuck & Co.,

243 F.3d at 852-53 (finding that the employer’s offer of “different

justifications at different times for” the adverse employment

action “is, in and of itself, probative of pretext”). On the other

hand, a “plaintiff cannot seek to expose [a non-discriminatory]

rationale as pretextual by focusing on minor discrepancies that do

not cast doubt on the explanation’s validity, or by raising points

that are wholly irrelevant to it.” Holland v. Washington Homes,

Inc., 487 F.3d 208, 216 (4th Cir. 2007) (noting that “[t]he former

would not create a ‘genuine’ dispute, and the latter would fail to

be ‘material’”).

Daymark contends that Webb cannot show causation between his

alleged wage complaints and his termination because of the lengthy

lapse of time between his complaints and his termination. (Doc.

131 at 9-10 (citations omitted).) Further, Daymark argues, Webb

failed to show that the decisionmakers involved in his termination

knew of his wage complaints. (Id. at 10.) Even if Webb could

make out a prima facie case for retaliation, Daymark contends, he

fails at the pretext stage. Daymark contends that Webb “must

establish both that the employer’s reason was false and that

retaliation was the real reason for the challenged conduct.” (Doc.

131 at 11 (citing Fry v. Rand Constr. Corp., 964 F.3d 239, 246

(4th Cir. 2020) (citations omitted)).) “And establishing that

retaliation was the real reason is functionally equivalent to

showing that [Webb] would have not been terminated but for [his]

employer’s retaliatory animus.” (Id.) The court already found,

it argues, that “Webb was continuously notified of his performance

issues as early as . . . 2019” and Webb’s termination was not

“post-hoc.” (Id. at 10-11 (citing Doc. 116 at 31).) For the same

reasons Webb’s retaliation claims fail against Freedom House,

Daymark argues, his retaliation claims against it similarly fail.

(Id. at 13-14.)

Webb’s contentions fail. It is doubtful Webb meets his prima

facie case burden. In his current motion he raises many of his

arguments from his initial motion for summary judgment; namely,

that he began making wage complaints to Daymark as early as January

2019. (Doc. 133 at 11 (citing Doc. 53-2 at 121-22).) After he

made inquiries in early 2019, he contends, Daymark began taking

adverse actions against him, including telling him that he was not

complying with his job description. (Id. at 12-13.) By October

2019, Webb maintains he began suffering “disparate treatment”

because of his wage complaints. (Id. at 15.) He claims he was

disciplined multiple times and was singled out, with this disparate

treatment culminating in his May 2020 termination. (Id. at 15-

19.) As to Daymark, he argues that his claims are “separate and

district [sic] from his claims against Freedom House.” (Id. at

20.)

Webb’s failure to complain about his pay from March 2019 until

January 2020 belies his argument that his October 17, 2019 write-

up was retaliatory, as nearly six months elapsed since his last

alleged complaint. (Doc. 53-2 at 130.) See King v. Rumsfeld, 328

F.3d 145, 151 n.5 (4th Cir. 2003) (noting in the Title VII context

that plaintiff’s firing two months and two weeks after his receipt

of the EEO complaint was “sufficiently long so as to weaken

significantly the inference of causation between the two events”);

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d

474, 501 (4th Cir. 2005) (“A lengthy time lapse between the

[defendant’s] becoming aware of the protected activity and the

alleged adverse action negates any inference that a causal

connection exists between the two.”) (citation and some

alterations omitted)); Hamada v. Boeing Co., Civ. A. No. 2:19-

02777-DCN-MGB2021 WL 4596598, * 10 (D.S.C. Apr. 23, 2021) (noting

in the FMLA context that “temporal proximity alone may support a

reasonable inference of retaliatory causation if the relationship

is “very close” but that two months is ‘sufficiently long so as to

weaken significantly the inference of causation’”), report and

recommendation adopted by, 2021 WL 4398456 (D.S.C. Sept. 27, 2021)

(noting that “a court may find causation when one or two months

have passed between the protected activity and the retaliatory

act, but ‘only where there are additional facts to establish the

causal connection’”) (citations omitted)). See also Sowers v.

Bassett Furniture Industries, Inc., Civ. A. No. 4:19cv00039, 2021

WL 276169, *4 (W.D. Va. Jan. 27, 2021) (noting that a period of

approximately 10 to 11 months between the protected activity and

the adverse employment action cuts against finding any causal

connection between the two events in the FMLA context). Cf. Hines

v. Blue Cross & Blue Shield of N. Carolina, No. 1:19-cv-754, 2020

WL 3452155, at *4 (M.D.N.C. June 24, 2020) (finding, in the FMLA

retaliation context, the court has previously held that a plaintiff

satisfies the third element of a retaliation claim by alleging a

gap of approximately two months)).

Even if Webb could meet his prima facie case, Daymark has

proffered extensive non-discriminatory reasons for its discipline

resulting in his discharge – namely, Webb’s continuing poor

performance problems detailed extensively by Freedom House and

Daymark. As the court previously found as to Freedom House’s

motion for partial summary judgment (Doc. 116 at 22-32), Webb was

continuously notified of his performance issues as early as June

2019 (Doc. 116 at 31). Indeed, he was admonished, repeatedly,

about his performance deficiencies, including poor communication,

attitude problems, late work, failure to perform required

assessments, evasion of calls, and more. For example, his June

probationary evaluation noted that Webb "needs improvement" on

documentation. (Doc. 53-4 at 2-4; see Doc. 57-13 at 1.) On

October 17, 2019, Burkert wrote that she spoke with Webb after

hearing complaints from others about Webb’s “attitude” and

frustration with him. (Doc. 56-9.) Webb admits that he spoke

with Anthony-Byng “concerning [Webb] talking to one of the ladies

at the call center” and “signing a piece of paper,” but denies

signing the October 2019 Employee Disciplinary Action Form. (Doc.

41-6 at 68-70.) The October 17, 2019 Employee Disciplinary Action

Form outlined the “ongoing issues with . . . dispatch; having

attitude with dispatch operators, [including] asking who else is

available to take calls, complaining about the distance, [etc.].”12

(Doc. 53-23 at 3.) The October 17 form also states that Webb did

not return phone calls, texts, and emails to the team lead and

work was being sent late, which made other clinician’s work

untimely. (Id.) These problems continued through spring of 2020,

as outlined above in detail.

Yet Webb argues that because “Daymark’s purported reason for

the termination is far narrower than Freedom House’s,” Daymark’s

reasons for terminating Webb “were certainly pretextual.” (Doc.

133 at 21.) To support this contention, Webb cites to the

declarations and litigation history discussed in connection with

his motion for reconsideration. (Docs. 133-2, 133-3, 133-5, 133-

7, 133-8, 133-9, 133-10.) But Daymark’s reasons were largely, if

not fully, based on Freedom House’s supervision problems with Webb,

which this court has already found to be adequate to support his

discipline.

Webb continues to maintain that, contrary to Daymark’s

arguments, his performance was more than adequate; for instance,

his “June [2019] probationary evaluation affirmed [he] was ‘very

12 This is one of the forms that Webb acknowledges bears his signature

but he contends he did not sign. (See Doc. 53-2 at 148.)

pleasant and easy to communicate with and got along well with the

dispatchers[.]’” (Doc. 153 at 15 (citing Doc. 53-4 at 15.) And

according to Webb, it was only after his wage complaints that he

began receiving disparate treatment. (See Doc. 133 at 15 (citing

Doc. 53-4 at 4).) His references to his positive job performance

reviews, however, is selective. Even though his June performance

had positive notations, the fact that he had positive reviews prior

to his new position in 2019, as this court previously noted, does

not establish that his employer’s complaints about his performance

was pretextual. (Doc. 116 at 30-31 (citing Hill v. Belk Stores

Servs., Inc., No. 3:06-CV-398, 209 WL 2426315, at *4 (W.D.N.C.

Aug. 5, 2009).)

Further, Webb argues that he was being written up for things

not in his job description. For instance, he contends that

“[n]owhere in the job description[]” was he required to “return

calls immediately[]”; rather, he claims, he was “instructed to

return calls to management twice per day.” (Doc. 133 at 15.)

However, to support his argument he cites to a 2016 addendum to

his offer letter for his previous part-time position rather than

to his December 2018 offer letter. (Doc. 133 at 15 (citing Doc.

53-10); see Doc. 53-20.) Accordingly, his reliance on the 2016

offer letter is clearly misplaced. And while in his deposition he

testified that he had only one conversation about returning emails,

calls, or texts during his employment, and it was about the email

system being down once (Doc. 53-2 at 145-46), he does admit that

in one of his disciplinary action forms he was “instructed to

return all phone calls, texts, and emails to the team lead, program

director, and dispatch within 24 hours” even though he states he

has no recollection either seeing or signing the form. (Id. at

147-50.)13 He also admits he was notified as early as October 2019

of the need to improve his communication (Doc. 53-2 at 146-50);

his January 2020 disciplinary action form noted the requirement

that he return “ALL phone calls, texts and emails to Team Lead

and/or Program Director within 24 hours” (Doc. 53-23 at 6-7); and,

he was reminded again about communication issues on April 2, 2020

(Doc. 53-27). His January 2020 disciplinary form similarly noted

his failure to respond to all email communications (as noted in

the October 17, 2019 form), lack of holding clinical supervision

meetings, and his poor productivity standards. (Doc. 53-23 at 6-

7.) In an effort to distance himself from the disciplinary forms,

Webb contends, in contradictory fashion, that he never saw the

forms until briefly before his deposition (Doc. 53-2 at 148) but

that the January write-up was retaliation for his having complained

about his pay (even though the only record evidence is that in

13 Webb states in his memorandum that he was the only one who engaged in

protected activities and who was disciplined. (Doc. 133 at 15-16.)

However, he again cites to inadmissible hearsay to support these

contentions, including Haynie and Jay’s declarations. Further, while

Webb surmises that "Daymark was determined to terminate [him] for his

repeated wage complaints," his only citation is to previous Department

of Labor investigations of Defendants concerning different employees.

January/February 2020 he requested copies of his timesheets (Doc.

133 at 18)). Disciplinary form aside, Shoaf notes many of these

issues set out in the January 2020 write-up, such as poor

communication, in her recommendation for termination in May. (Doc.

41-11 at 2-3.)

Webb further claims that Daymark’s role in his termination

supports his retaliation claim. (Doc. 133 at 27.) He notes that

Williams (of Freedom House) recommended that he be placed on a

performance improvement plan before termination but that Daymark

decided to terminate him instead. (Doc. 133 at 29 (citing Doc.

57-10 (showing that Williams suggested a “90-day Performance

Improvement” to Burkert and Griffin-Dolciney)).) But this email

came on May 8, 2020, and was sent only to other Freedom House

employees – Burkert and Griffin-Dolciney. (Doc. 57-10 at 1.) On

May 20, 2020, Williams forwarded to Shoaf (of Daymark) emails from

Burkert (of Freedom House) outlining Webb’s performance issues and

Burkert’s opinion that he “is not competent to be in this position”

and that “financially, he is not even coming close to covering his

own salary.” (Doc. 53-29 at 3.) Importantly, Williams’ email to

Shoaf came after Burkert had already highlighted reasons she

believed Webb needed “immediate removal from MET, as [Burkert] no

longer [felt] capable of supervising him without significant risk

of jeopardizing [her] own license.” (Id.)

Similarly, Webb points to the fact that Shoaf had to approve

his termination (Doc. 133 at 30 (citing Doc. 44-6 at 146; Doc. 44-

5 at 45)), and he argues that she “knew of [his] need for protected

leave and thereafter conspired to retroactively generate

pretextual reasons for termination” (Doc. 133 at 31). There is no

basis in the record for this contention. Webb never asked for

FMLA leave, and no one at Daymark ever discussed it. (See Doc.

44-6 at 123-24; see also Doc. 53-2 at 116-118.) Indeed, the record

appears silent on any consideration of Webb’s FMLA rights

throughout his tenure. (See also Doc. 116 (finding the same).)

Webb argues that Shoaf was “lobbying to terminate [him]” and

“acknowledged the lack of written documentation surrounding the

alleged performance issues” in Shoaf’s May 26, 2020 email. (Doc.

133 at 29 (citing Doc. 41-11).) In the email, however, Shoaf told

Miller (Freedom House’s CEO) and Sumpter (a Freedom House

consultant) that she “agree[d] with [the] termination

recommendation,” which appears to have initially come from Burkert

or Williams of Freedom House, and, in the alternative, said “if we

do not terminate; [sic] then, employee would be put on final

corrective action with [a] very specific plan of improvement and

understanding that if [the] plan is violated at any time it would

lead to termination.” (Doc. 41-11 at 3; Doc. 41-5 at 50.) Shoaf

stated her concern that the “potential liability for client care

outweighs risk to [the] agency” and recommended “as a consultant,

to proceed . . . with terminating Mr. Webb.” (Doc. 41-11 at 3;

Doc. 41-5 at 64; see Doc. 55 ¶ 61.) Further, Shoaf wrote that

Webb was on administrative leave, that “we need to make a decision

quickly,” and that Miller or Sumpter should let her or Williams

know if any other information was needed. (Doc. 41-11 at 3.)

Miller responded that he spoke with Sumpter and that they agreed

on termination because of the “potential liability to client care

and the agency.” (Id. at 2.) Shoaf then directed Williams to

inform Griffin-Dolciney and Burkert to move forward with

termination and explain the reasons supporting termination. (Id.)

Webb represents that “Shoaf admitted to knowing about

[Webb]’s wage complaints (through Williams), and her recollection

on the timing of when she heard about the complaints was far from

clear.” (Doc. 133 at 23 (citing Doc. 41-5 at 90-91).) Webb cites

this as a genuine dispute of material fact about whether Daymark

knew he engaged in alleged “protected activity” during January and

February 2020. (Doc. 133 at 23.) This is a misrepresentation of

the record. In fact, Shoaf testified that while she did not know

the specific date Williams informed her of Webb’s pay complaints,

“it would have been after Freedom House had . . . terminated Mr.

Webb,” adding, “at no time was I involved in anything dealing with

his pay and wages.” (Doc. 41-5 at 91-92 (emphasis added).) Webb

offers no evidence to the contrary.

True, Shoaf notes that she discussed Webb’s performance with

Anthony-Byng (Doc. 41-11), though the latter had left her role as

Daymark’s Director of the Mobile Crisis Division in February 2020,

three months prior to Webb’s termination (Doc. 63-2 ¶ 3). Webb

argues that after conferring with Anthony-Byng, “Shoaf

acknowledge[d] there was an insufficient basis to terminate [him],

but nonetheless, Webb needed to be terminated anyway and

documentation issues would be the pretext used.” (Doc. 133 at 18-

19, 21 (citing Doc. 41-11).) This contention also finds no support

in the record. Shoaf wrote that although she is concerned because

of Webb’s “tenure, race, age and [the] fact that employee’s

documentation issue has not been addressed in writing,” she

nevertheless believed that the “potential liability for client

care outweighs the risk to agency.” (Doc. 41-11 at 3.) Shoaf

further noted that “[t]he recommendation of the direct supervisor

and Regional Director is termination” and that “[t]his can be

supported by agency procedure as it does not require specific

disciplinary processes.” (Id. (emphasis added).) Moreover, Shoaf

wrote, “[Webb] was written up in October and again in January for

basically not following through with appointments, responding to

supervisor [sic], returning calls[,] etc.” (Doc. 41-11 at 2.)

She found that “[Webb] continues to have issues and since April

has failed to do assessments on approximately 20 clients . . . .”

(Id.) While she did note that “[d]ocumentation was not a main

issue addressed in these write ups,” (id.), it does not show that

her recommendation to fire him was pretextual merely because Webb

had not previously been written-up on one specific issue when a

litany of other problems, about which Webb had been notified

repeatedly, were present. The record is devoid of any indication

that Anthony-Byng informed Shoaf about any alleged wage complaints

(see Doc. 41-11 (noting several deficiencies in Webb’s employment

performance but not discussing any wage concerns)); indeed, by

this time, Webb’s discussion with Anthony-Byng about his wages and

timesheets was more than a year old.

For the reasons noted previously by Judge Tilley in granting

Freedom House’s motion for partial summary judgment, Webb’s self-

serving testimony and that of his co-workers does not create a

dispute of material fact. (Doc. 116 at 31-32.) The new

declarations similarly do not fill the void. As noted, Bridges no

longer supervised Webb when Webb’s employment troubles began.

(Doc. 133-2 ¶¶ 1, 13.) Similarly, neither Jay nor Harris

supervised Webb, so their comments as to his job performance cannot

support a claim of pretext. See Hawkins, 203 F.3d at 280 (noting

co-workers’ opinions of an employee’s work quality are “close to

irrelevant” in questions of pretext). As to each of the newly

offered declarations, moreover, Webb relies on inadmissible

hearsay about what each declarant claims Webb was told by Freedom

House and Daymark, when none of them has any personal knowledge of

those discussions.

Finally, none of the prior litigation history submitted by

Webb (Docs. 133-7, 133-8, 133-9, 133-10) suffices, alone or in

combination with the other record evidence, to support a jury

conclusion that Daymark retaliated against Webb in connection with

his employment.14 The analysis of the court’s prior summary

judgment ruling applies equally here. (See Doc. 116 at 21 to 36.)

As this court’s December 20, 2022 decision found, even if Webb

could show a prima facie case of retaliation, he has not shown

sufficient evidence from which a reasonable jury could find

pretext. (Doc. 116 at 30.) He was continuously notified of

performance issues, even during periods in which he admits he did

not complain about his wages, and his performance was assessed by

Daymark and Freedom House to jeopardize professional licenses.

(Id. at 30-31.) While Webb may disagree with the characterizations

of his performance, this disagreement “does not prove that [the

decision] to fire Webb for continued poor performance placing the

agency and its clients at risk was ‘dishonest or not the real

reason for his termination.’” (Doc. 116 at 31-32 (quoting Laing

v. Fed. Express Corp., 703 F.3d 713, 722 (4th Cir. 2013)) (“[I]n

attempting to defend the conduct that led to her termination, all

Laing has proven is the unexceptional fact that she disagrees with

the outcome of FedEx’s investigation.”).) It is the perception

14 Webb proffers only one Department of Labor investigation, which was a

“self-audit” after which the department recommended that the file be

closed with no penalty assessed. (Doc. 133-10 at 5, 7.)

of the decision maker which is relevant, not “the self-assessment

of the plaintiff.” (Id. (citing Hawkins v. PepsiCo., Inc., 203

F.3d 274, 280 (4th Cir. 2000)).)

In sum, none of the additional evidence provided by Webb

creates a genuine dispute of material fact. Therefore, Daymark’s

motion for partial summary judgment as to Webb’s retaliation claims

will be granted.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Webb’s “Emergency AMENDED Motion

for Reconsideration” (Doc. 136) is DENIED;

IT IS FURTHER ORDERED that Defendant Daymark’s Motion for

Partial Summary Judgment (Doc. 130) is GRANTED and Webb’s claims

against Daymark of FMLA retaliation (Count 4) and FLSA retaliation

(Count 5) are DISMISSED.

/s/ Thomas D. Schroeder

United States District Judge

May 2, 2023