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

> District Court, M.D. North Carolina · May 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10254305

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** May 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254305

## How later opinions describe it (automated extraction)

- 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”
- noting that there is an affirmative duty for “the trial judge to prevent ‘factually unsupported claims and defenses’ from proceeding to trial” (citation omitted)
- noting that the opinions of employees and co- workers as to an employee’s work quality are “close to irrelevant” in questions of pretext

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254305. Public record. Not legal advice.