Pinders v. Agency Educ

7ermont Superior Court
Filed 11/13/25
Chittenden tUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 25-CV-02058
175 Main Street
Burlington VT 05401
802-863-3467
.vermontjudiciary.org

Gage Pinders,
Plaintiff

DECISION ON MOTION

Vermont Agency of Education,
Defendant

RULING ON MOTION TO DISMISS

This case arises out of the unintentional disclosure of information from Plaintiff Gage
Pinders' educational records by Defendant Vermont Agency of Education (the "Agency") in
response to a public records request. In his Amended Complaint, Mr. Pinders asserts that the
Agency's actions caused him harm and that the Agency is liable to him for negligence, negligent
invasion of privacy, and negligent infliction of emotional distress and reputational harm. The
Agency has moved to dismiss the complaint pursuant to Rule 12(b)(1) of the Vermont Rules of
Civil Procedure, asserting that the Court lacks subject matter jurisdiction based on sovereign
immunity, and Rule 12(b)(6), arguing the complaint fails to state a claim for which relief can be
granted. For the reasons discussed below, the Agency's motion to dismiss is GRANTED.

Factual Background

In his Amended Complaint, Mr. Pinders alleges that the Agency inadvertently disclosed
sensitive, disability-related information to a member of the public, which made its way to a
member of the media. Am. Compl. ff 1, 3.1-3.2. A formal complaint was submitted to the
United States Department of Education's Student Privacy Policy Office ("SPPO") in June 2024,
and a representative from that office informed Mr. Pinders' mother that the complaint was
substantiated as a violation of the Family Educational Rights and Privacy Act ("FERPA"). Jd.
q 3.3; Ex. B (letter to Mr. Pinders' mother from SPPO substantiating complaint). In April 2025,
a formal notice of claim was served on the Vermont Attorney General's Office pursuant to the
Vermont Tort Claims Act. /d. 13.6. The Attorney General's Office acknowledged the
disclosure but denied Mr. Pinders any financial compensation, stating that no remedy was
available. Id. 13.7. This action followed.

Discussion

"Motions to dismiss for lack of subject-matter jurisdiction and for failure to state a claim
under Vermont Rules of Civil Procedure 12(b)(1) and (6) may not be granted unless it appears
beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.”
Wool v. Office of Prof’l Regulation, 2020 VT 44, ¶ 8, 212 Vt. 305 (quotation omitted). Courts
assume a plaintiff’s factual assertions are true for purposes a Rule 12(b)(6) the motion. Id. A
motion under Rule 12(b)(1) differs from a motion under Rule 12(b)(6) “in that ‘the former
determines whether the plaintiff has a right to be in the particular court and the latter is an
adjudication as to whether a cognizable legal claim has been stated.’” Housing Our Seniors in
Vt. Inc. v. Agency of Comm. & Cmty. Dev., 2024 VT 12, ¶ 9, 219 Vt. 80 (quoting 5B Charles
Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civil § 1350 (3d ed. 2023)).

I. Sovereign Immunity.

Lawsuits against the State are barred unless the State waives its sovereign immunity.
Earle v. State, 2006 VT 92, ¶ 9, 180 Vt. 284 (citing Estate of Gage v. State, 2005 VT 78, ¶ 4, 178
Vt. 212); see State v. Stocker, 2021 VT 71, ¶ 22, 215 Vt. 432 (“The State can only be held liable
for damages when it has expressly waived sovereign immunity.” (citing Sutton v. Vt. Reg’l Ctr.,
2019 VT 71A, ¶ 35, 212 Vt. 612)). The Vermont Tort Claims Act (“VTCA”) provides, in
relevant part, as follows:

The State of Vermont shall be liable for injury to persons or property or loss of
life caused by the negligent or wrongful act or omission of an employee of the
State while acting within the scope of employment, under the same
circumstances, in the same manner, and to the same extent as a private person
would be liable to the claimant . . . .

12 V.S.A. § 5601(a).

As the VTCA makes clear, the State can only be held liable for the negligent acts of its
employees if a similar cause of action could be asserted against a private person. See, e.g.,
Stocker, 2021 VT 71, ¶ 22 (“The State has thus waived immunity only to the extent a plaintiff’s
cause of action is comparable to a recognized cause of action against a private person.”
(quotation omitted)); Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 485, 622 A.2d 495, 498 (1993)
(noting that the “waiver [of sovereign immunity] is primarily directed at the ordinary common-
law torts” (quotation omitted)). “By maintaining a link to private causes of action, this approach
serves to prevent the government’s waiver of sovereign immunity from encompassing purely
‘governmental’ functions. Its effect, therefore, is to waive immunity from recognized causes of
action and was not to visit the Government with novel and unprecedented liabilities.” Denis Bail
Bonds, 159 Vt. at 485-86 (quotation omitted). “Under this ‘private analog’ analysis,
governmental liability may arise only if a plaintiff’s cause of action is comparable to a cause of
action against a private citizen and his allegations, taken as true, will satisfy the necessary
elements of that comparable state cause of action.’” Id. at 486 (quotation omitted)). To
determine whether the State has waived its sovereign immunity, then, the Court must determine
both whether Mr. Pinders’ factual allegations “satisfy the necessary elements of a recognized
cause of action” and whether his claims could be maintained against a private person. Kane v.
Lamothe, 2007 VT 91, ¶¶ 6-7, 182 Vt. 241.

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I. Negligence (Count I).

To assert a claim of negligence, Mr. Pinders must show that the Agency owed him a legal
duty, that the Agency breached that duty, and that he suffered actual damages as a proximate
result of that breach. Kane, 2007 VT 91, ¶ 7. As the Kane Court recognized, “in most cases of
negligence against the State, the decisive element is duty.” Id. Here, Pinders purports to base
his negligence claim on the Agency’s alleged violation of FERPA, IDEA, and 16 V.S.A. § 164.
See Am. Compl. ¶ 4.2 (alleging that the Agency “owed a clear and legally recognized duty of
care to [him] to maintain and preserve the confidentiality of personally identifiable information
(PII), including sensitive disability-related information, pursuant to federal statutes such as
(FERPA) and the Individual with Disabilities Education Act (IDEA), which impose
confidentiality obligations on educational agencies, as well as Vermont state law”). However,
none of these statutes imposes an actionable duty on the Agency that is owed to students such as
Mr. Pinders.

As an initial matter, Pinders concedes that the statutes he relies on do not provide him
with a private right of action against the Agency. For example, remedies for violating FERPA’s
requirements belong to the Secretary of Education and include withholding funds, issuing a
complaint to compel compliance, and seeking a recovery of funds. 20 U.S.C.A. § 1234c. The
statute does not authorize a private right of action by students against educational agencies or
institutions subject to FERPA based on alleged violations of its requirements. See Gonzaga
Univ. v. Doe, 536 U.S. 273, 287 (2002) (“[T]here is no question that FERPA’s nondisclosure
provisions fail to confer enforceable rights. . . . Unlike the individually focused terminology of
Titles VI and IX . . ., FERPA’s provisions speak only to the Secretary of Education . . . . This
focus is two steps removed from the interests of individual students and parents and clearly does
not confer the sort of ‘individual entitlement’ that is enforceable under § 1983.” (citations
omitted)). The Secretary of Education also has regulatory and enforcement authority under
IDEA, and that statute does not provide students with a private cause of action to enforce the
Act’s substantive provisions. Cty. of Westchester v. New York, 286 F.3d 150, 153 (2d Cir. 2002).
Likewise, the Vermont statute Pinders cites, 16 V.S.A. § 164, does not authorize a student to sue
the Agency for any particular grievance. See Montague v. Hundred Acre Homestead, LLC, 2019
VT 16, ¶ 22, 209 Vt. 514 (“This second claim of negligence fails because the safety statute and
regulations cited by Montague do not support a private action for damages by Montague against
Hundred Acre.”); Andrew v. State, 165 Vt. 252, 260, 682 A.2d 1387, 1392 (1996) (rejecting
plaintiff’s claim for negligent enforcement of safety standards against State because no private
analog existed and claim would “visit the government with novel and unprecedented liabilities”
(quotation omitted)).

Further, the Court cannot discern from the statutory language any intent to create a duty
that would be owed to private individuals, as opposed to the relevant governmental regulatory
bodies. Thus, FERPA creates a duty of compliance by agencies and institutions towards the
federal government, but it does not impose any such duty owed to private individuals. See 20
U.S.C.A. § 1232g(b) (stating that funds will not be made available to education agencies or
institutions that have policies or practices that permit release of student education records,
without obtaining written consent, with exceptions that do not apply here). IDEA requires state
agencies that receive financial assistance to establish and maintain particular procedures to

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ensure procedural safeguards are provided to children with disabilities and their parents. See 20
U.S.C.A. § 1415. As with FERPA, educational agencies that receive funds under IDEA are
answerable to the Secretary of Education, who has monitoring and enforcement rights, not to
individual students or their parents, who do not. Id. §§ 1416-17. Finally, 16 V.S.A. § 164
describes the State Board of Education’s general powers and duties, and requires that the Board
report annually to the Governor and the General Assembly on its progress developing education
policy for the State. See 16 V.S.A. § 164(21). The statute does not address any duty the Board
owes to students. 1

In sum, because Mr. Pinders has failed to show that the Agency owed him any duty under
the federal and Vermont statutes he cites, he cannot establish the elements of his negligence
claim. See Kane, 2007 VT 91, ¶ 7 (“Before determining whether a private analog exists, we
must first determine whether the factual allegations satisfy the necessary elements of a
recognized cause of action.”). Therefore, the Agency’s Rule 12(b)(6) motion to dismiss Count I
is granted.

III. Negligent Invasion of Privacy (Count II).

Count II of the Amended Complaint seeks to assert a claim for negligent invasion of
privacy. Pinders is correct that Vermont recognizes the tort of invasion of privacy, and therefore
a private analog for this claim could exist. However, as the Vermont Supreme Court has
explained, “[i]nvasion of privacy is a substantial, intentional intrusion upon the solitude or
seclusion of another, or upon his private affairs or concerns, which would be highly offensive to
a reasonable person.” Harris v. Carbonneau, 165 Vt. 433, 439, 685 A.2d 296, 300 (1996)
(citations omitted). Thus, invasion of privacy is an intentional tort that requires the allegation of
a deliberate violation. See id. (holding that plaintiff’s “pleadings did not support a theory of
invasion of privacy” where no intentional conduct was alleged); see also Kilburn v. Simmon,
2025 VT 32, ¶ 28, 342 A.3d 887 (invasion of privacy is intentional tort); Pion v. Bean, 2003 VT
79, ¶ 35, 176 Vt. 1 (“To establish an invasion of privacy, defendants needed to show that
plaintiffs intentionally interfered with their interest in solitude or seclusion . . . .” (citation
omitted)). Here, Pinders has sued the Agency for negligent invasion of his privacy and he
acknowledges that the disclosure of his confidential information was inadvertent and
unintentional. See Am. Compl. ¶ 3.2 (stating that the “Agency described the disclosure as
‘inadvertent’ but under Vermont law negligence is established without the requirement of
intent”). Accordingly, Pinders has failed to state a claim for invasion of privacy, and Count II
must be dismissed. 2

1
Pinders’ reliance on the Public Records Act, which exempts certain records from public
inspection, but does not create any duty owed to persons whose information may be in such
records, is similarly misplaced. See 1 V.S.A. § 317(c)(11).
2
Contrary to Pinders’ assertion, the Court’s decision in Lawson v. Halpern-Reiss, 2019 VT 38,
210 Vt. 224, did not recognize the general tort of negligent disclosure of confidential
information. Opp. at 6. Rather, following a detailed discussion of the historical and policy
considerations supporting the development of a common-law remedy, “the Court “join[ed] the
consensus of jurisdictions recognizing a common-law private right of action for damages arising
from a medical provider's unauthorized disclosure of information obtained during treatment,”

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IV. Negligent Infliction of Emotional Distress and Reputational Harm (Count III).

Mr. Pinders also seeks to assert a claim for negligent infliction of emotional distress and
“reputational harm.” Pinders is again correct that Vermont recognizes a cause of action for
negligent infliction of emotional distress. However, such a claim is restricted to situations where
the claimant faced physical harm:

To establish a claim for negligent infliction of emotional distress, a plaintiff must
make a threshold showing that he or someone close to him faced physical peril.
The prerequisites for establishing a claim differ according to whether plaintiff
suffered a physical impact from an external force. If there has been an impact,
[the] plaintiff may recover for emotional distress stemming from the incident
during which the impact occurred. If plaintiff has not suffered an impact, plaintiff
must show that: (1) he was within the “zone of danger” of an act negligently
directed at him by defendant, (2) he was subjected to a reasonable fear of
immediate personal injury, and (3) he in fact suffered substantial bodily injury or
illness as a result.

Zeno-Ethridge v. Comcast Corp., 2024 VT 16, ¶ 6, 219 Vt. 121 (quoting Brueckner v. Norwich
Univ., 169 Vt. 118, 125, 730 A.2d 1086, 1092 (1999)). There are two recognized exceptions to
the physical-impact requirement that do not apply in this case. See id. n.4 (physical-injury
requirement not necessary for negligent infliction of emotional distress claim based on
mishandling bodily remains or negligent transmission of death announcement). Because there
was no physical peril at issue here, Mr. Pinders cannot pursue his claim for negligent infliction of
emotional distress. Further, while a successful plaintiff may be able to recover damages for
reputational harm in an action for negligence or other tort claim, Vermont does not recognize an
independent cause of action for the negligent infliction of reputational harm itself. See, e.g.,
Cooper v. Myer, 2007 VT 131, ¶ 9, 183 Vt. 561 (defamation may result in reputational damages,
which plaintiff must prove with evidence of actual harm); Herrera v. Union No. 39 Sch. Dist.,
2006 VT 83, ¶ 23, 181 Vt. 198 (damages due to reputational harm may be recoverable in
wrongful discharge case); Tour Costa Rica v. Country Walkers, Inc., 171 Vt. 116, 124, 758 A.2d
795, 802 (2000) (in promissory estoppel case, plaintiff may be able to recover damages due to
reputational harm). Therefore, the Agency is also entitled to dismissal of Count III for failure to
state a claim.

noting it did “not do so lightly.” Id. ¶ 14. No such historical and policy analysis has been
provided to support recognizing a claim here. Moreover, Lawson involved the intentional
disclosure of confidential information, see id. ¶¶ 3-4, whereas this case alleges only an
unintentional disclosure. Thus, Lawson does not assist Mr. Pinders’ cause. Nor are Pinders’
citations to the Restatement (Second) of Torts § 652D (publicity given to private life) and § 652E
(publicity placing person in false light) persuasive, as those sections discuss different forms or
mechanisms of the invasion of privacy, which, as discussed above, is an intentional tort.

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Order

For the foregoing reasons, Defendant Vermont Agency of Education’s Motion to Dismiss
Amended Complaint (Mot. #4) is GRANTED.

Electronically signed on November 12, 2025 at 10:03 AM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

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