Mercedes Reese V CCSD

2:23-cv-00475-DCN Date Filed 02/03/23 Entry Number 1 Page 1 of 28
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Mercedes Pinckney Reese, ) Case No.: 2:23-cv-00475-DCN

)
Plaintiff, )
) SECTION 1983 COMPLAINT
vs. ) AND ADDITIONAL STATE CAUSES
) OF ACTION FOR BREACH OF
Charleston County School District Board ) CONTRACT
and Donald Kennedy, Sr., in his official and ) (Jury Trial Demanded)
individual capacities,
)
Defendants. )
)
Plaintiff Mercedes Pinckney Reese, by way of this Complaint, would respectfully show
unto this Honorable Court the following:
Parties, Jurisdiction, and Venue
1. Plaintiff is a citizen and resident of Dorchester County, South Carolina. At all times
relevant to this Complaint, Plaintiff was a state employee, employed by Defendant Charleston
County School District (“CCSD Board”) as Staff Attorney.
2. Upon information and belief, Defendant Donald Kennedy, Sr. is a citizen and
resident of Charleston County, South Carolina.
3. At all times relevant to this Complaint, Defendant Kennedy was Interim
Superintendent and/or Superintendent of CCSD Board.
4. Defendant Kennedy is being sued in his individual capacity for actions taken under
color of state law.
5. CCSD Board is a State educational institution, with authority to sue and be sued in
its name, conducting business in Charleston County.
1
6. CCSD Board appointed Defendant Kennedy as Interim Superintendent in January
2022 and Defendant Kennedy reports to CCSD Board.
7. CCSD Board entered into an employment contract with Plaintiff to serve as Staff
Attorney on May 28, 2021.
8. This Court has subject matter jurisdiction over this action pursuant to 28 USC §§
1331 and 1343 for deprivation of constitutional rights under 42 U.S.C. § 1983.
9. This Court has in personam jurisdiction over Defendants.
10. Venue is proper in this jurisdiction pursuant to 28 U.S.C. § 1391 because
Defendants reside in or do business in this judicial district and division and the unlawful actions
giving rise to Plaintiff’s claims were committed, at least in part, within this judicial district and
division.
11. This Court has supplemental jurisdiction over the state law claims against Defendant
CCSD Board in this action.
FACTS
Plaintiff’s Educational and Work Backgrounds
12. Plaintiff graduated from the College of Charleston in December of 2007.
13. Plaintiff obtained her law degree from North Carolina Central University of Law
in May of 2011 and was on the Dean’s List.
14. Plaintiff obtained a Master of Laws degree from St. Thomas University School of
Law in May of 2012.
15. Plaintiff has practiced family and criminal law in a private law firm in North
Carolina, served as a Truancy Court Judge at a middle school; worked as a public defender;
and was assistant general counsel at the College of Charleston, before becoming general
2
counsel at South Carolina State University and an associate general counsel at the United
States Air Force Academy in Colorado.
16. Plaintiff moved back to Charleston in July 2021 to accept the position of Staff
Attorney (or General Counsel as the position was often referred to) at Defendant CCSD.
Plaintiff’s Employment Contract
17. Plaintiff and CCSD Board entered into an employment contract dated May 28,
2021.
18. The employment contract stated Plaintiff was to begin working on July 1, 2021 as
Staff Attorney.
19. Plaintiff’s employment contract extended through June 30, 2024.
20. The parties to the employment contract were Plaintiff and Defendant CCSD.
21. Defendant Kennedy was not a party to Plaintiff’s employment contract.
22. Plaintiff’s employment contract stated, “Staff Attorney shall plan, organize,
direct, and control professional legal counsel representation and legal services for the
Superintendent and the District.”
23. Although Defendant Kennedy was not a party to Plaintiff’s employment contract,
he did have limited authority to discharge her, but her contract stated “any decision by the
Superintendent to discharge the Staff Attorney for cause shall be reviewable by the Board.”
Plaintiff’s Job Description
24. Plaintiff’s job description stated she was the staff attorney working in the general
counsel department.
25. When Plaintiff was hired, she was the only attorney working in the general
counsel office.
3
26. The terms “general counsel” and “staff attorney” have historically been used
interchangeably by district employees and members of CCSD Board.
27. In fact, in his last Board meeting on November 14, 2022, former CCSD Board
Chair Reverend Dr. Eric L. Mack publicly thanked Plaintiff for her work as “general counsel”
after Defendant Kennedy had already announced to the Board he had hired two (2) new co-
general counsel from an outside law firm weeks earlier.
28. Per Plaintiff’s job description, Plaintiff’s job duties were to “plan, organize,
direct, and control professional legal counsel representation and legal services for the
Superintendent and the District.”
29. Plaintiff’s primary job duties listed in her job description included, among other
things:
a. advising the Superintendent, Board of Trustees, and staff on all legal matters;
preparing and rendering legal opinions to the Superintendent, Board, and staff;
b. coordinating the handling of all litigation involving the school district;
c. advising the school district on matters of insurance, contracts and actions required to
comply with the law; working cooperatively in negotiating contracts which affect the
school district;
d. and performing all other duties as assigned by the Superintendent.
30. Plaintiff was considered and acted as CCSD’s general counsel until such time as
Defendant Kennedy named new interim co-general counsel.
CCSD’s Policy Relating to Legal Services
31. In December of 1975, CCSD adopted a policy, that was revised in January of
2014, and is currently being amended, titled “BDG Staff Attorney/Outside Legal Counsel.”
4
32. This Policy states in part, “the administration may retain one or more persons as
outside counsel to provide legal services for the Charleston County School District.”
33. As Superintendent, Defendant Kennedy is a part of CCSD’s administration.
34. Throughout Plaintiff’s employment, Policy BDG Staff Attorney/Outside Legal
Counsel read as follows: “[T]he board hereby authorizes the creation and maintenance of the
position of general counsel. The general counsel’s contract shall be approved by the board and
they shall represent and advise the board and administration on legal matters involving the
business of the district.”
35. As stated above, although Plaintiff’s title in her contract and per her job
description was “Staff Attorney,” when Plaintiff was hired there was no other attorney employed
in-house and her job duties were the same as those of a general counsel in Policy BDG Staff
Attorney/Outside Legal Counsel.
36. In fact, the sign on Plaintiff’s door and office suite entrance throughout her
employment with CCSD indicated she was the general counsel, not the staff attorney.
37. CCSD Board has recently acknowledged there was a problem regarding
Defendant Kennedy’s use of outside attorneys by passing a first reading of a policy amendment
regarding legal services after Plaintiff was terminated to “establish the basic structure for the
board’s need for and relationship with legal counselors, including General Counsel.”
38. This first reading of a policy amendment, occurring after Plaintiff’s termination,
confirmed general counsel have no “authority to hire or fire CCSD staff or to authorize any
payments by the District unless given specific authority by the superintendent or the Board with
regard to settlement of disputes.”
5
Plaintiff’s Job Performance
39. Plaintiff’s employment contract stated “[t]he Superintendent and/or her designee
shall evaluate the performance of the Staff Attorney annually.”
40. Defendant Kennedy never evaluated Plaintiff’s performance although he
repeatedly assured her that her job performance was not an issue.
41. Plaintiff never received any formal evaluations or any written reprimands from
Defendant Kennedy during the approximate one (1) year he was Superintendent during her
employment.
42. The only conversation Plaintiff ever had with Defendant Superintendent regarding
her performance was on July 25, 2022 when he told her CCSD Board, not he, was concerned that
she lacked K-12 experience.
43. Plaintiff was surprised and concerned by Defendant Kennedy’s statement.
44. Plaintiff explained to Defendant Kennedy that she believed she had been hired
based in part on her past employment as a college’s general counsel and she had never been told
K-12 experience was necessary for her role as the CCSD’s attorney.
45. Plaintiff explained to Defendant Kennedy that her two (2) predecessors had no
prior educational in-house counsel experience prior to their tenures at CCSD, whereas she did.
46. Defendant Kennedy’s inference was that the Board was discussing her work
experience and had questions about her job performance.
47. Plaintiff asked Defendant Kennedy if she could address the K-12 experience issue
with the Board, and she never received a response from Defendant Kennedy.
48. On information and belief, Defendant Kennedy had been previously asked by a
Board Member not to take any action regarding Plaintiff’s K-12 experience.
6
49. During this same July 25, 2022 meeting with Defendant Kennedy, Defendant
Kennedy told Plaintiff Defendant Kennedy was going to have a peer review conducted regarding
her department by local attorneys who were not employees of CCSD.
50. Plaintiff was familiar with peer reviews being done in academic settings, but she
had never heard of lawyers being the subject of a peer review.
51. Plaintiff had previously requested more staffing for her office and when
Defendant Kennedy assured her that the peer review was a tool that could be used to identify
staffing needs and process improvements of her office, and assured her the peer review had
nothing to do with job performance, she believed him.
52. Plaintiff’s job performance had never been previously questioned or criticized in
any manner by Defendant Kennedy.
53. As Staff Attorney, Plaintiff attended national COSA (Council of School
Attorneys) trainings/seminars and attended and participated in State COSA and SCSBA trainings
and panel presentations.
54. During Plaintiff’s employment, she received many accolades from board
members, colleagues, district staff (including the former CCSD Superintendent Gerrita
Postlewait), and the community regarding her job performance.
55. Specifically, CCSD Board Chair Reverend Dr. Eric L. Mack told her he wasn’t
sure how she juggled everything; he told Plaintiff he thought she needed additional staff and
thanked her for her work during his last Board meeting, referring to her as the general counsel.
56. One Cabinet Member told Plaintiff they would put her up against any one prior
legal counsel they had worked with over the years.
7
57. Several other Cabinet Members told Plaintiff how great they thought she was and
that they enjoyed working with her.
58. CCSD Chief Human Resource Officer Bill Briggman told Plaintiff she kept him
in the loop on HR legal matters the most of any legal counsel he had worked with, and he
appreciated it.
59. A senior administrator told the CCSD Board that she and Plaintiff worked great
together.
60. Since Plaintiff’s termination, she has heard from multiple attorneys, two (2)
former supervisors, and regular citizens praising her integrity and her work at CCSD.
61. Defendant Kennedy never told Plaintiff he had any concerns about her job
performance until he handed her a termination letter.
Pretextual Peer Review
62. After Defendant Kennedy notified Plaintiff on July 25, 2002 that he was having
a peer review of her office conducted, Plaintiff learned no other CCSD department was having
a peer review performed.
63. Plaintiff knew from her experience as a college in-house counsel what peer
reviews were and how they were used.
64. Plaintiff knew that generally, during a peer review, trained external evaluators
review and make recommendations regarding how a department is organized, the reporting
structure within a department, the alignment of functions, staffing and management levels and
steps that could be taken to achieve greater operational efficiency and help the department meet
its strategic mission according to a specific set of standards.
8
65. Plaintiff was surprised and confused as to why her department was being singled
out for a peer review as the legal department consisted only of herself and three direct reports.
66. Also, at the time she was told about the peer review, Plaintiff was aware of gross
regulatory and legal problems in the Finance Department raised by a third party that had
occurred for several years while Defendant Kennedy was Chief Financial Officer and continued
while he was Superintendent.
67. Plaintiff believed if any department would benefit from a peer review, the
Finance Department would be a department that would benefit from a peer review.
68. Further, Plaintiff was aware that several employees and community members
had complained to CCSD and Defendant Kennedy about major concerns and problems
regarding reporting grievances to Human Resources and Employee Relations, and that
department was not being peer reviewed.
69. When Plaintiff asked Defendant Kennedy more questions about the planned peer
review, Defendant Kennedy told Plaintiff the peer review would be similar to those conducted
in school districts across the country by the Council of the Great City Schools.
70. Plaintiff asked Defendant Kennedy if a written document would result from the
peer review and Defendant Kennedy told Plaintiff he did not know.
71. Defendant Kennedy also told Plaintiff if there was a written document, the
document would remain confidential and Defendant Kennedy would only share the results of
the peer review with Plaintiff, and no one else.
72. Defendant Kennedy’s statement made no sense to Plaintiff, as she knew peer
reviews performed by the Council of the Great City Schools were public documents and
explained by “An Organizational Review of the Jefferson County Public Schools” performed
9
by the Council of the Great City Schools, they were intended to be “the foundation for
improving the effectiveness of many school urban school systems nationally… or form the
basis for identifying ‘best practices’ for other urban school systems to replicate.”
73. Plaintiff learned afterwards that Defendant Kennedy served as a volunteer peer
review consultant for the Council of the Great City Schools, so he should have known how the
peer review process worked; specifically, he should have known that that a written report was
usually prepared and made public.
74. Michael Bobby, a former interim CCSD Superintendent, is a peer reviewer for
the Council of the Great City Schools and he still lives in Charleston, so there were experienced
peer reviewers available if Defendants had actually intended to perform a Council of the Great
City Schools peer review.
75. Plaintiff began to suspect the peer review was a ruse to allow someone to find
fault with her legal department or her job performance.
76. Defendant Kennedy assured Plaintiff the peer review was not punitive and it had
nothing at all to do with her job performance.
77. Defendant Kennedy also told Plaintiff there was no need to involve any CCSD
Human Resource personnel in the peer review.
78. Three (3) attorneys from an outside law firm participated in the peer review.
79. Plaintiff had never met or spoken to any of the attorneys before the review.
80. One of the attorneys participated in the peer review by phone from
Pennsylvania.
10
81. Plaintiff was surprised by the questions posed to her as it was clear none of these
attorneys had ever worked as in-house counsel in an educational setting, and it was also clear
that what was occurring was not really a peer review.
82. Plaintiff was asked multiple questions about the role of the Staff Attorney and it
became clear to Plaintiff that these attorneys did not understand Plaintiff’s job.
83. Plaintiff was asked many questions about her performance but there was no
attempt to understand the staffing needs of her department.
84. The attorney conducting the peer review told Plaintiff she was conducting an
“investigation” and asked Plaintiff if she felt she had the support of her supervisor (Defendant
Kennedy).
85. Plaintiff responded she did not feel she had Defendant Kennedy’s support as she
had just been told she was under investigation; Plaintiff said she would never allow the
employees she supervised to be treated this way.
86. After the alleged peer review occurred, Plaintiff sent Defendant Kennedy an
email complaining about the peer review meeting stating that she had been requested to
provide documents that did not exist and the attorneys repeatedly referred to the peer review
meeting as an “investigation” and “audit.”
87. Plaintiff told Defendant Kennedy in this same email that one of the attorneys
told her Defendant Kennedy was anxiously awaiting their report.
88. Plaintiff told Defendant Kennedy that the attorneys went over her job
description line by line, asked what time she arrived at work, what time she left, was she
married when she accepted the job as Staff Attorney, did she have any children when she
11
started working at CCSD, and told her they were glad one of her reports had “Americanized”
his name.
89. Plaintiff told Defendant Kennedy the meeting felt nothing like a peer review and
during all the times she had worked in an in-house legal position, she had never had anyone
question her work ethic, work hours, integrity or professionalism.
90. Defendant Kennedy responded that he would confirm with the attorney that
what was being conducted was a “Council of the Great City Schools’ type peer review” and
tell the attorney not to refer to the peer review as an investigation.
91. In a subsequent conversation with Defendant Kennedy in early August, Plaintiff
told Defendant Kennedy she was concerned that the attorney conducting the alleged peer
review was requiring Plaintiff’s direct reports to talk to CCSD’s HR Department after
Defendant Kennedy had already told Plaintiff that HR Department personnel did not need to
be involved in the peer review.
92. Plaintiff told Defendant Kennedy the peer review did not feel collaborative as
the attorney was in the building talking to Plaintiff’s staff without Plaintiff’s knowledge.
93. On September 19, 2022, Plaintiff asked Defendant Kennedy about the status of
the peer review and was told that one of the attorneys was traveling and he expected to hear
something the next week.
94. For months afterwards, and until Plaintiff’s termination, Defendant Kennedy
repeatedly refused to respond to Plaintiff’s requests to learn the results of this alleged peer
review.
12
Defendant Kennedy’s Appointment of Additional Lawyers
95. Pursuant to her employment contract and her job description, Plaintiff, not the
Superintendent, was in charge of organizing, directing, and controlling professional legal
counsel representation and legal services for the Superintendent and the District.
96. However, pursuant to CCSD Policy “BDG Staff Attorney/Outside Legal
Services,” administration could also retain outside counsel.
97. Pursuant to this CCSD Policy “BDG Staff Attorney/Outside Legal Services,”
“The general counsel’s contract shall be approved by the board and they shall represent and
advise the board and administration on legal matters involving the business of the district.”
98. Plaintiff’s employment contract and her job description both state Plaintiff “shall
plan, organize, direct, and control professional legal counsel representation and legal services for
the Superintendent and the District.”
99. On October 11, 2022, Plaintiff sent Defendant Kennedy a particularly detailed
memorandum which contained her legal updates.
100. Plaintiff requested feedback from Defendant Kennedy on several issues, noted
concerns about revising policies and unsigned contracts, asked how the Superintendent wanted to
respond to Board member questions, noted constituent board issues that needed to be addressed,
requested feedback on approval levels for non-procurement matters, and provided information
regarding the status of current litigation.
101. Plaintiff also again expressed her concerns about not knowing anything about the
results of the peer review.
102. Plaintiff received no response from Defendant Kennedy to her October 11, 2022
memorandum.
13
103. Instead, on October 14, 2022, Defendant Kennedy told Plaintiff he was
appointing two outside attorneys as interim co-general counsel (two of whom were the same
attorneys who had conducted the alleged peer review a few months earlier), and that Plaintiff
would now report to them.
104. Plaintiff complained that she felt this change was performance-based, but
Defendant Kennedy assured her this change had nothing to do with her performance, he was
just used to working with a team of in-house lawyers who all handle different matters.
105. On information and belief, Defendant Kennedy was relying on language in
Policy BDG Staff Attorney/Outside Legal Services to hire these outside attorneys, but he
referred to them as “general counsel.”
106. Two (2) hours after notifying Plaintiff of the new appointments, Defendant
Kennedy issued a press release regarding his appointment of new attorneys.
107. Plaintiff told Defendant Kennedy the press release regarding the appointment of
the new interim co-general counsel had caused her embarrassment and shame, and she did not
understand what was happening.
108. Plaintiff verbally asked Defendant Kennedy for clarity several times as to why
the new appointments had been made and what role these new attorneys would play regarding
the provision of legal services.
109. Plaintiff had previously placed monetary limitations on what outside counsel
could be paid - between $150 and $245 dollars per hour depending on years of experience.
110. A CCSD employee contacted Plaintiff to tell her the new outside counsel wanted
to charge $450 and $550 as the hourly rate for their work.
14
111. Plaintiff questioned these high legal fees after confirming the South Carolina
School Boards Insurance Trust (SCSBIT) usually only paid $150-$200 per hour.
112. When Plaintiff learned of the hourly rates new outside counsel wanted to charge,
she contacted Defendant Kennedy by email about the issue.
113. Plaintiff also complained verbally and in writing to Defendant Kennedy that the
new outside counsel had started taking cases away from outside attorneys Plaintiff had already
hired.
114. Plaintiff also told Defendant Kennedy verbally that the new outside counsel were
cancelling appointments on her calendar without her knowledge.
115. On October 18, 2022, Plaintiff sent Defendant Kennedy an email explaining her
concerns about the chaos his appointment of additional counsel was causing.
116. Plaintiff reported in this email the new outside counsel were directing Plaintiff’s
paralegal’s work; instructing Plaintiff’s legal counsel not to include Plaintiff on email
communications with them; re-scheduling and cancelling meetings Plaintiff had already
scheduled; telling Plaintiff’s paralegal to limit her communication with Plaintiff and to provide
Plaintiff’s calendar to them; and requiring Plaintiff’s paralegal to send them all new questions,
EEOC claims and other new legal matters.
117. The new co-general counsel talked to vendors without Plaintiff’s knowledge, as
well as to attorneys Plaintiff had already assigned to handle cases.
118. No one at CCSD had ever indicated to Plaintiff there was any dissatisfaction
with any of the work done by the outside attorneys Plaintiff had already hired to handle
various cases.
15
119. Legal services were in disarray as CCSD staff did not know who to ask for legal
help and conflicting legal opinions were being provided.
120. On October 20, 2022, Plaintiff asked Defendant Kennedy if naming the new co-
general counsel was an attempt to force her from her job.
121. On October 25, 2022, Plaintiff emailed her staff and told them that she had been
directed by Defendant Kennedy to meet with the newly appointed counsel to review all pending
matters she and her staff had been working on.
122. When Plaintiff told her staff they would continue reporting to her, Plaintiff’s
paralegal responded that she was going to follow the new attorneys’ directions.
123. Despite Plaintiff’s objections, the new co-general counsel continued to take the
position they could assign outside counsel, rather than Plaintiff.
124. Plaintiff contacted other government agencies for guidance as she started to
become concerned about possible state procurement regulation violations.
125. Plaintiff was concerned that she had no control over the actions of the outside
attorneys and state procurement regulations (19-445.2010 and 19-445.2127) were no longer
being followed by CCSD.
126. Specifically, Regulation 19-445.2010 addresses the disclosure of procurement
information for state entities does not permit non-state employees “to perform any role in
discussions, negotiations, evaluation, or the source selection decision ….”.
127. Regulation 19-445.2010 applies when state entities seek competitive bids or
proposals to provide services, including legal services.
16
128. Regulation 19-445.2127 addresses organizational conflicts of interest and
requires state entities to be cognizant of not giving one business an unfair competitive
advantage.
129. Private businesses can assist public bodies in carrying out their duties and
functions only if the public body maintains control and supervision over the private entities.
130. Defendant Kennedy’s act of hiring private co-general counsel to perform
Plaintiff’s job duties, resulted in Plaintiff, as a public employee, having no supervision or
control over the actions of counsel who worked for a private law firm.
131. At the end of October 2022, Plaintiff learned from her paralegal that disciplinary
outcome letters her office had prepared were not ready to be mailed because they had been sent to
the interim co-general counsel for edits.
132. On October 27, 2022, Plaintiff again reported to Defendant Kennedy that his
appointment of new general counsel was causing chaos.
133. Plaintiff told Defendant Kennedy the new counsel were requiring her paralegal to
terminate outside counsel, which was completely inappropriate and unprofessional.
134. Plaintiff told Defendant Kennedy the new attorneys were often unavailable and
unresponsive, citing one matter that had been going on for over a month in which an involved
party was upset and CCSD staff was confused.
135. When Plaintiff told Defendant Kennedy the new interim co-general counsel
notified two (2) of Plaintiff’s employees that their reporting structure was being worked on, he
responded that he had not had any conversations with co-general counsel about changing the
reporting structure in the legal department.
17
136. On November 10, 2022, Plaintiff emailed her staff about a recent meeting she had
with Defendant Kennedy and she confirmed to her staff they still reported to her, noting that the
outside attorneys were non-CCSD employees so they could not direct the actions of CCSD
employees.
137. On November 13, 2022, Plaintiff emailed Defendant Kennedy regarding a FOIA
request that involved voluminous documents and the need to move forward with hiring local
attorneys to handle this request as Plaintiff was still unaware of the intent and role the outside
attorneys were supposed to play regarding addressing the current workload, including this FOIA
response.
138. Defendant Kennedy never responded to Plaintiff’s November 13, 2022 email.
139. By early November 2022, outside lawyers were confused and calling Plaintiff to
tell her they were getting calls from the interim co-general counsel taking them off cases Plaintiff
had assigned to them and that they were already handling.
140. On Thursday November 24, 2022, as Plaintiff remained concerned that state
procurement rules were being broken and pending legal matters were not being handling and/or
adversely affected by the confusion caused by the appointment of the new counsel, Plaintiff sent a
confidential memo to Defendant Kennedy and CCSD Board setting forth several serious matters
of public concern.
141. Plaintiff wanted her confidential memorandum to be acted upon and not made
public.
142. Someone at CCSD Board provided the memorandum to the press.
143. CCSD Board reported to the press that Plaintiff’s statements in the memorandum
were "inaccurate" and "unfounded," inferring Plaintiff was a liar.
18
Plaintiff’s Termination based on False Allegations of Poor Job Performance
144. On Tuesday November 28, 2022, Defendant Kennedy sent Plaintiff an email
telling her to come to his office to discuss Plaintiff’s memorandum that was sent to the Board
on November 24, 2022.
145. Beverly Varnado, with CCSD Board’s Employee Relations department, was
present.
146. Defendant Kennedy did not discuss Plaintiff’s November 24, 2022
memorandum at this meeting.
147. However, it was clear Plaintiff’s termination was the result of her memorandum a
few days earlier to CCSD Board and Defendant Kennedy in which reported of matters of serious
public concern.
148. Defendant Kennedy told Plaintiff she could either resign and receive a small
severance, or he would terminate her for cause.
149. Defendant Kennedy did not offer to pay Plaintiff the remaining value of her
contract.
150. Defendant Kennedy read from a termination letter that had been prepared before
the meeting.
151. None of the stated reasons for Plaintiff’s termination in the letter had ever been
discussed with Plaintiff.
152. Defendant Kennedy read from the letter, telling Plaintiff the reasons for her
termination for cause were: 1) the results of the peer review performed months earlier, which
Plaintiff had never seen or been told about; 2) student discipline letters from Plaintiff’s office,
which wording Defendant Kennedy evidently disliked but had never mentioned to her
19
previously; 3) Plaintiff’s appointment of outside counsel who practice from other South
Carolina cities to handle litigation; and 4) the fact that Plaintiff, as CCSD’s attorney, had
accepted subpoenas on behalf of CCSD employees.
153. These reasons were pretext.
154. The student discipline outcome letters Plaintiff’s office sent merely reflected
decisions already made by CCSD’s Board, which decisions Plaintiff had no authority to alter.
155. Further, the job of timely sending letters to parents regarding the date and time of
expulsion hearings was the responsibility of another CCSD department, not CCSD’s legal
department.
156. Plaintiff was in effect being disciplined for a job that was not, and never had
been, a CCSD legal department job.
157. As CCSD’s attorney, Plaintiff had authority to accept subpoenas and avoid the
disruption of having the servers repeatedly coming to the various school sites across the
District.
158. In fact, Plaintiff’s job description required her to “coordinate[s] the handling of
all litigation involving the school district.”
159. It was Plaintiff’s professional opinion that the physical location of outside counsel
who specialized in education law was irrelevant if they do good work, work with other school
districts around the state, and have competitive legal fees.
160. Further, the attorneys referenced from Columbia in her termination letter had been
working for CCSD for a number of years prior to Plaintiff’s hire.
161. CCSD had historically often sought advice from outside counsel in other cities
who specialized in education law.
20
162. Plaintiff’s employment contract only allowed a termination for cause for the
following reasons: conduct seriously prejudicial to the District, unprofessional conduct, gross
neglect of duty or gross inefficiency.
163. There were no allegations in the letter, or made by Defendant Kennedy during
the termination meeting, that Plaintiff was being terminated for conduct seriously prejudicial to
the District, unprofessional conduct, gross neglect of duty or gross inefficiency.
164. But for Plaintiff’s report of serious matters of public concern to CCSD Board
and Defendant Kennedy, Plaintiff would not have been terminated.
165. The pretextual termination letter was an attempt to hide the real reason for
Plaintiff’s termination, her speech regarding matters of serious public concern.
166. There is no public record of CCSD Board reviewing Defendant Kennedy’s
decision to terminate Plaintiff before he acted to terminate her on November 29, 2022.
167. Defendant Kennedy terminated Plaintiff on the same day that seven (7) newly
elected Board members of the current eight (8) member CCSD Board were attending new Board
Member orientation.
168. On December 7, 2022. Plaintiff requested an appeal of her termination by
Defendant Kennedy to CCSD’s Board.
169. On December 13, 2022 Plaintiff was informed CCSD was in the process of
retaining a hearing officer for her appeal.
170. On December 18, 2022, a hearing officer was identified and agreed upon, and a
hearing was scheduled for January 18, 2023.
171. On January 6, 2023, Plaintiff was told that there was no legal authority for any
appeal, and the hearing was cancelled.
21
172. Plaintiff repeated her request for voluntary mediation prior to initiating litigation,
which was, as it previously had been, summarily denied.
173. On information and belief, Plaintiff has exhausted her administrative remedies, if
any ever existed.
FOR A FIRST CAUSE OF ACTION

(First Amendment Retaliation, Protected Speech - 42 U.S.C. §1983
against Defendant Kennedy in his official and individual capacities)
174. Plaintiff repeats and realleges each and every allegation of the preceding
paragraphs as if restated verbatim.
175. Protected speech under the United States First Amendment includes speech that
deals with matters of public concern relating to any matter of political, social, or other concern to
the community, or when there is a subject of general interest and of value and concern to the
public.
176. When private persons are making decisions regarding the expenditure of public
money and directing the work of public employees and vendors, it is a matter of serious public
concern to the citizens and residents of South Carolina.
177. Plaintiff repeatedly complained verbally and by email to Defendant Kennedy that
outside attorneys, who were not CCSD employees, were directing District personnel and
resources, choosing vendors on behalf of Defendant CCSD, and directing the work of other
CCSD outside vendors, including CCSD Board’s insurance company.
178. Plaintiff exercised her First Amendment right of free speech guaranteed under the
United States Constitution by reporting violations of CCSD Board’s policies and state
procurement law in a November 24, 2022 memorandum addressed to Defendant Kennedy and
the CCSD Board.
22
179. Plaintiff had the right to report what she reasonably believed were violations of
CCSD policies and state regulations to the Board.
180. Defendant Kennedy unlawfully retaliated against Plaintiff for exercising her right
of free speech regarding the actions Defendant Kennedy had taken pursuant to CCSD’s Policy
BDG Staff Attorney/Outside Counsel by telling her to come to his office to discuss her
November 24, 2022 memorandum and then terminating her.
181. Upon information and belief, CCSD Board reviewed Defendant Kennedy’s
decision to terminate Plaintiff after Plaintiff had already been terminated.
182. Plaintiff’s statements in her memorandum were made in her capacity as a licensed
attorney and due to a personal obligation she felt to speak about what she reasonably believed to
be misconduct.
183. Sending the November 24, 2022 Plaintiff’s memorandum to the CCSD Board was
not part of Plaintiff’s official duties, and Plaintiff would not have been derelict in her job duties
had she failed to send the memorandum.
184. Plaintiff’s actions of criticizing the misconduct described herein constitute
protected free speech under the Constitution of the United States.
185. None of Plaintiff’s speech on matters of public concern as described herein
caused any actual or potential disruption to the functioning of CCSD’s legal department; nor did
such speech cause any actual or potential interference with the delivery of services by the legal
department.
186. Defendant exceeded any authority granted to him by CCSD Board and its policies
to terminate Plaintiff.
23
187. Any reasonable superintendent in Defendant Kennedy’s position would know
employees should not be terminated for reporting serious matters of public concern.
188. But for Plaintiff’s complaints to CCSD Board and Defendant Kennedy about his
appointment of outside counsel under the BDG Staff Attorney/Outside Counsel Policy, Plaintiff
would not have been terminated.
189. Plaintiff’s interest in First Amendment expression outweighs any interest in
Defendant Kennedy hiring of additional legal counsel.
190. Defendant Kennedy, acting under color of law, deprived Plaintiff of her free
speech rights, which are guaranteed by the Constitution of the United States, in violation of 42
U.S.C. § 1983.
191. As a direct and proximate result of Defendant Kennedy’s violations of Plaintiff’s
constitutionally protected rights of free speech, Plaintiff has suffered, and continues to suffer,
injuries, including lost wages, lost earning capacity, job search expenses, and emotional stress.
192. Plaintiff’s sudden termination, coupled with false statements regarding her job
performance made against her in a termination letter, has made it impossible for Plaintiff to
timely find new employment especially during her third trimester of pregnancy when she no
longer has any protected leave under FMLA.
193. Defendant Kennedy’s termination of Plaintiff for exercising her free speech, as set
forth above, was taken intentionally, willfully, wantonly, recklessly, maliciously and with utter
disregard for the federally protected rights of the Plaintiff and, therefore, Plaintiff is entitled to
recover punitive damages from Defendant Kennedy.
194. As a result of the above, Plaintiff is entitled to damages in the form of actual and
consequential damages, back pay, lost employment benefits, expenses associate with finding
24
other work, as well as damages for emotional distress, inconvenience, embarrassment and
humiliation, loss to professional standing, and punitive damages sufficient to deter others from
engaging in such unlawful action in the future against Defendant Kennedy in his individual
capacity in an amount to be determined by a jury; prospective injunctive relief against Defendant
Kennedy in his official capacity; pre and post judgment interest as allowed by law; attorney fees
and costs; and such other legal and equitable damages as this Court may order.
FOR A SECOND CAUSE OF ACTION

(Breach of Contract Against Defendant CCSD Board)
196. Plaintiff and CCSD Board entered into a binding contract (attached hereto as
Exhibit A.)
197. Plaintiff’s employment contract with CCSD Board stated, “It is understood that
this contract is governed by an express covenant of good faith and fair dealing.”
198. CCSD Board breached the covenant of good faith and fair dealing in Plaintiff’s
employment contract by allowing Defendant Kennedy to misrepresent and then rely on an
alleged peer review in order to justify Plaintiff’s termination and replace her with two other
lawyers, the same two (2) lawyers who supposedly conducted the alleged peer review.
199. CCSD Board breached the covenant of good faith and fair dealing in Plaintiff’s
employment contract by allowing Defendant Kennedy to terminate Plaintiff allegedly for cause
although he failed to perform an annual evaluation of her performance followed by a written
summary and failed to provide Plaintiff the right to respond in writing, as required by her
contract.
25
200. CCSD Board breached Plaintiff’s contract by failing to allow Plaintiff to “plan,
organize, direct, and control professional legal counsel representation and legal services for the
Superintendent and the District” as it had agreed was Plaintiff’s job in Plaintiff’s employment
contract.
201. CCSD Board breached Plaintiff’s contract by allowing Defendant Kennedy to
assign Plaintiff’s contracted job duties to other attorneys.
202. CCSD Board breached Plaintiff’s employment contract by allowing Defendant
Kennedy to mischaracterize Plaintiff’s discharge as a termination for cause after he had offered
to accept her resignation, after he had repeatedly told Plaintiff he was satisfied with her job
performance, and when none of the reasons supporting a discharge for cause in Plaintiff’s
employment contract were mentioned by Defendant Kennedy’s in Plaintiff’s termination letter.
203. CCSD Board breached Plaintiff’s contract by failing to review Defendant
Kennedy’s decision to terminate Plaintiff prior to Defendant Kennedy terminating Plaintiff.
204. CCSD Board breached Plaintiff’s contract by offering to pay her only 16.6% of the
remaining value of her contract when she was terminated.
205. CCSD Board’s breach caused Plaintiff to incur damages. Plaintiff seeks actual and
consequential damages resulting from CCSD Board’s breach of her employment contract and
attorney fees per S.C. Code § 15-77-300.
FOR A THIRD CAUSE OF ACTION

(Breach of Contract Accompanied By A Fraudulent Act Against Defendant CCSD)
207. CCSD Board is responsible for the acts of its Superintendent taken within the scope
of his authority.
26
208. CCSD Board had a fraudulent intent relating to the breach of Plaintiff’s contract
as evidenced by the fabricated pretextual reasons used to justify Plaintiff’s termination.
209. CCSD Board acted fraudulently when it approved the breach of Plaintiff’s
contract after the breach had occurred.
210. Specifically, CCSD Board’s actions towards Plaintiff were characterized by
dishonesty in fact and unfair dealing as evidenced by the following:
a. Allowing Defendant Kennedy to conduct a pretextual peer review of Plaintiff’s
department which was afterwards used to justify her termination, even though
Defendant Kennedy had repeatedly assured Plaintiff the peer review had nothing to
do with her job performance, the peer review would be used to assess staffing needs
in her department, he had been told by a Board member not to act on the K-12 issue,
and the peer review would remain confidential;
b. Allowing Defendant Kennedy to hire private outside attorneys to review Plaintiff’s
job performance when her employment contract required her to do so;
c. Allowing Defendant Kennedy to hire private outside attorneys to perform the job
duties in Plaintiff’s employment contract and job description that she was required to
perform;
d. Allowing Defendant Kennedy to authorize private outside attorneys to direct and
control legal work Plaintiff was contractually responsible for performing under her
employment contract; and
e. Allowing Defendant Kennedy to terminate Plaintiff based on false allegations of
poor job performance that were false and never mentioned to Plaintiff until the day
she was terminated.
27
211. As a result of these fraudulent acts accompanying the breach of Plaintiff’s
contract, and others that may become known through discovery, Plaintiff has suffered and seeks
damages in the form of lost back and future wages, lost income and benefits, damages for
embarrassment and humiliation, and further seeks costs of this action, including attorney fees
pursuant to S.C. Code §15-77-300.
WHEREFORE, Plaintiff seeks actual, consequential, and special damages against CCSD
Board; actual and consequential and punitive damages against Defendant Kennedy in his
individual capacity; injunctive relief against Defendant Kennedy in his official capacity; pre and
post judgment interest as allowed by law; attorney fees and costs; and such other legal and
equitable damages as this Court may order.
Respectfully submitted,
BLOODGOOD & SANDERS, LLC
s/Nancy Bloodgood
Nancy Bloodgood, Fed. Bar No.: 5208
242 Mathis Ferry Road, Suite 201
Mt. Pleasant, SC 29464
Telephone: (843) 972-0313
Email: nbloodgood@bloodgoodsanders.com
Attorneys for Plaintiff
Charleston, South Carolina
Date: February 3, 2023
28
2:23-cv-00475-DCN Date Filed 02/03/23 Entry Number 1-1 Page 1 of 5

Mercedes Reese V CCSD

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Mercedes Reese V CCSD

Uploaded by

Copyright:

Available Formats

2:23-cv-00475-DCN Date Filed 02/03/23 Entry Number 1 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT

Mercedes Pinckney Reese, ) Case No.: 2:23-cv-00475-DCN

unto this Honorable Court the following:

Parties, Jurisdiction, and Venue

County School District (“CCSD Board”) as Staff Attorney.

resident of Charleston County, South Carolina.

3. At all times relevant to this Complaint, Defendant Kennedy was Interim

Superintendent and/or Superintendent of CCSD Board.

color of state law.

its name, conducting business in Charleston County.

6. CCSD Board appointed Defendant Kennedy as Interim Superintendent in January

2022 and Defendant Kennedy reports to CCSD Board.

Attorney on May 28, 2021.

9. This Court has in personam jurisdiction over Defendants.

10. Venue is proper in this jurisdiction pursuant to 28 U.S.C. § 1391 because

CCSD Board in this action.

Plaintiff’s Educational and Work Backgrounds

12. Plaintiff graduated from the College of Charleston in December of 2007.

in May of 2011 and was on the Dean’s List.

Law in May of 2012.

States Air Force Academy in Colorado.

Plaintiff’s Employment Contract

19. Plaintiff’s employment contract extended through June 30, 2024.

21. Defendant Kennedy was not a party to Plaintiff’s employment contract.

Superintendent and the District.”

Plaintiff’s Job Description

interchangeably by district employees and members of CCSD Board.

general counsel from an outside law firm weeks earlier.

Superintendent and the District.”

b. coordinating the handling of all litigation involving the school district;

d. and performing all other duties as assigned by the Superintendent.

Defendant Kennedy named new interim co-general counsel.

CCSD’s Policy Relating to Legal Services

33. As Superintendent, Defendant Kennedy is a part of CCSD’s administration.

34. Throughout Plaintiff’s employment, Policy BDG Staff Attorney/Outside Legal

business of the district.”

Attorney/Outside Legal Counsel.

regard to settlement of disputes.”

Plaintiff’s Job Performance

shall evaluate the performance of the Staff Attorney annually.”

40. Defendant Kennedy never evaluated Plaintiff’s performance although he

she lacked K-12 experience.

43. Plaintiff was surprised and concerned by Defendant Kennedy’s statement.

experience and had questions about her job performance.

her department by local attorneys who were not employees of CCSD.

had never heard of lawyers being the subject of a peer review.

nothing to do with job performance, she believed him.

any manner by Defendant Kennedy.

53. As Staff Attorney, Plaintiff attended national COSA (Council of School

and panel presentations.

Postlewait), and the community regarding her job performance.

legal counsel they had worked with over the years.

that they enjoyed working with her.

performance until he handed her a termination letter.

Pretextual Peer Review

a peer review performed.

reviews were and how they were used.

its strategic mission according to a specific set of standards.

while he was Superintendent.

department was not being peer reviewed.

the peer review with Plaintiff, and no one else.

usually prepared and made public.