Vanderkern v. Burr and Burton

VERMONT SUPERIOR COURT CIVIL DIVISION
Bennington Unit Case No. 25-CV-02316
207 South St
Bennington VT 05201
802-447-2700
www.vermontjudiciary.org

Jeremy VanDerKern v. Board of Trustees of Burr and Burton Academy

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 1)
Filer: Pietro J. Lynn
Filed Date: July 11, 2025

Plaintiff Jeremy VanDerKern claims that Defendant, the Board of Trustees of Burr and
Burton Academy, violated his employment agreement when it did not renew his teaching
contract for a second school year. Mr. VanDerKern claims that the Board failed to comply with
the statutory process of 16 V.S.A. § 1752, as mentioned in the agreement, and that nonrenewal
required just cause, which the Board did not have.

The Board filed a motion to dismiss for failure to state a claim. V.R.C.P. 12(b)(6). It
argues 16 V.S.A. § 1752 does not apply to Mr. VanDerKern because Burr and Burton Academy
is an independent school, and 16 V.S.A. § 1752 governs dismissal of public school teachers.
Therefore, there is no claim Mr. VanDerKern can bring on that ground. The Board also asserts
the employment agreement grants the school wide discretion in the decision not to renew a
teacher. Therefore, the school’s reason for not renewing Mr. VanDerKern was just cause, and
the Board did not breach the contract.

Procedural Standard

A motion to dismiss for failure to state a claim faces a high bar. “A motion to dismiss for
failure to state a claim is not favored and rarely granted.” Gilman v. Me. Mut. Fire Ins. Co.,
2003 VT 55, ¶ 14, 175 Vt. 554 (mem.). “The legal theory of a case should be explored in the
light of facts as developed by the evidence, and, generally, not dismissed before trial because of
the mere novelty of the allegations.” Ass’n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt.
443, 447, 494 A.2d 122, 125 (1985). The court takes the nonmoving party’s factual allegations
from the complaint as true and assumes the movant’s contravening assertions are false.
Huntington Ingalls Indus., Inc. v. Ace Am. Ins. Co., 2022 VT 45, ¶ 17, 217 Vt. 195. The court
“also accept[s] all reasonable inferences that may be drawn from those facts.” Ferry v. City of
Montpelier, 2023 VT 4, ¶ 22, 217 Vt. 450 (internal quotation marks omitted). The court only
grants a motion to dismiss when “it appears beyond doubt that there exist no facts or
circumstances that would entitle the plaintiff to relief.” Amiot v. Ames, 166 Vt. 288, 291, 693
A.2d 675, 677 (1997) (internal quotation marks omitted).

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In addition to the contents of a complaint, documents relied on in a complaint merge into
the pleadings, and the court may take judicial notice of court decisions or documents without
converting the 12(b)(6) motion into one for summary judgment. In re Russo, 2013 VT 35, ¶ 16
n.4, 193 Vt. 594. The record for Rule 12(b)(6) purposes generally is limited to the four corners
of the complaint and any attachments to it. Nash v. Coxon, 152 Vt. 313, 314–15, 565 A.2d 1360,
1361 (1989) (“[I]f matters outside the pleadings are presented and not excluded by the court, the
motion to dismiss must be treated as one for summary judgment” (internal quotation marks
omitted)). As discussed above, however, documents sufficiently referred to and relied upon in
the complaint may properly be considered in a motion to dismiss even if not attached to the
complaint. See Kaplan v. Morgan Stanley & Co., Inc., 2009 VT 78, ¶ 10 n.4, 186 Vt. 605
(mem.).

To support the motion to dismiss, the Board attached full copies of the arbitrator’s
decision and the employment agreement the school used during the 2022–2023 school year,
documents which Mr. VanDerKern directly quoted and relied on in his complaint. The court
takes judicial notice of these two documents as part of the pleadings in this case.

Allegations of the Complaint

On May 4, 2022, Mr. VanDerKern entered into an employment contract with the Board
as a cinematography teacher for the school year running from August 20, 2022 to August 19,
2023. According to the employment contract, all conditions of employment were as provided in
the Agreement Between the Board of Trustees of Burr and Burton Academy And the Burr and
Burton Academy Teachers’ Association 2022–2027 and as required by law.

Article V of the agreement governed contract renewal. A contract would be renewed if
the school administration determined that a teacher had performed satisfactorily. Agreement, art.
V.A. at 11. No teacher could be denied renewal of their contract except for just and sufficient
cause. Agreement, art. V.E. at 12. The grounds for just and sufficient cause listed in the
Agreement was a non-exhaustive list of four items regarding teacher performance and behavior,
and a fifth item “Reduction in Staff,” which had its own article of proceedings and seniority
retention requirements. Id.; Agreement, art. XXV at 26–27. Teachers who worked at the school
for three years or fewer, which applied to Mr. VanDerKern, were categorized as transitional
teachers. Agreement, art. V.F. at 12. If a transitional teacher’s contract was not renewed due to
unsatisfactory performance, the transitional teacher did not have a right to the grievance
procedures for long term-teachers listed in Article XXIX. Id. Instead, “[a]ny transitional teacher
may appeal a non-renewal of contract under the provisions of Title 16, V.S.A., Section 1752 b.”1
Id. at 12–13.

At the end of the 2022–2023 school year, school administration notified Mr. VanDerKern
the school would not renew his contract due to a “precipitous decline in interest in [BBA’s]
cinematography program.” Compl. at ¶ 7.

1 There is no 16 V.S.A. § 1752 b, however the parties’ pleadings indicate a mutual understanding that the statutory

section was 16 V.S.A. § 1752(b) (2021) as then in force on May 4, 2022, when Mr. VanDerKern was hired. See
2021, Adj. Sess., No. 111, § 1 (eff. May 11, 2022) (act creating current statute).

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Mr. VanDerKern filed a grievance on March 27, 2023 and “also sought to appeal the
non-renewal pursuant to 16 V.S.A. § 1752.” Id. at ¶ 9. The headmaster denied the grievance as
Article XXIX did not apply to transitional teachers and stated the school was not bound by 16
V.S.A. § 1752, as the school was not a public school. Nevertheless, Mr. VanDerKern continued
to attempt to follow the grievance procedures, appealing his termination to the Board, again
mentioning he sought an appeal under 16 V.S.A. § 1752. The school then advertised a
cinematography teaching position via all-employee email and posted the open position to the
SchoolSpring website. At some point later, it hired a new teacher for the 2023–2024 school
year. After the school posted the open teaching position, the Board refused Mr. VanDerKern’s
grievance as a transitional teacher, and asserted the school was not bound by 16 V.S.A. § 1752.
Mr. VanDerKern continued to follow the grievance process by submitting a demand for
arbitration to the headmaster which cited the Board’s failure to meet with him “on or before
04/20/23 as required by 16 V.S.A. § 1752c.”2 Id. at ¶ 20.

The Board did not respond, and Mr. VanDerKern filed his demand with the American
Arbitration Association. On June 27, 2023 the Board offered Mr. VanDerKern a hearing.
Mr. VanDerKern notified the Board that he was moving forward with arbitration. The arbitrator
concluded that Mr. VanDerKern did not have a right to arbitration because he was a transitional
teacher. The Master Agreement granted the right to arbitrate nonrenewal to teachers who had
worked at the school for four or more years, but not the transitional teachers who had only
worked at the school for three or fewer years. Mr. VanDerKern then notified the Board of his
intent to pursue his claims though legal means. Mr. VanDerKern filed his complaint with this
court.

Analysis

Mr. VanDerKern proceeded to arbitration when he did not have a right to arbitration
under the Master Agreement. It appears the arbitrator decided she did not have authority under
the Master Agreement to arbitrate the case. She also made findings to support that decision.
Based on the current record, the court cannot determine the effect of these findings when the
arbitrator found she did not have the authority to arbitrate. As this is a motion to dismiss and the
record is undeveloped, the court will not address the arbitration decision at this time. The court
will first address the statutory claim and then address the breach of contract claim.

First, the Board argues that it is not bound by 16 V.S.A. § 1752, as the school is not a
public school, and on its face, the statute applies only to public schools. See 16 V.S.A. § 1752(b)
(2021). The statute section which is relevant to the Master Agreement began: “Unless otherwise
negotiated, a teacher under contract to teach in a public school whose contract is not to be
renewed for the ensuing year shall be notified in writing, setting forth the grounds therefor, no

2 Parties refer to 16 V.S.A. § 1752(c) in their pleadings, as that is where most of the language of 16 V.S.A.
§ 1752(b) (2021) has been relocated after the May 11, 2022 amendment. The court will only consider the language
of the statute at the time the parties agreed to be bound. See Northwood AMC Corp. v. Am. Motors Corp., 139 Vt.
145, 149, 423 A.2d 846, 849 (1980) (holding contract provision which deleted all provisions in a franchise contract
contrary to state law would not delete contract provisions which became contrary to laws passed after the onset of
the contract).

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later than April 15.” 16 V.S.A. § 1752(b) (2021) (emphasis added). The section lists the full
procedures for appealing nonrenewal, referring to the clerk of the school board, and school
directors, before stating the different procedural standards for teachers categorized as
probationary and nonprobationary, and defining the difference between those categories based on
time spent working for Vermont public schools, and number of written performance evaluations.
Id. The conflicts in definitions and terms between the Master Agreement and the statute would
make nearly half of this subsection irrelevant and unenforceable in this case, if Mr. VanDerKern
could bring a claim. With constant reference to the public schools, and the listed procedures
flowing from general public school organization, the language of 16 V.S.A. § 1752(b) (2021) did
not confer any right for teachers at private schools to appeal a nonrenewal. 16 V.S.A. § 1752(b)
(2021). Dismissal on the claim of a violation of statute is granted.

However, taking Mr. VanDerKern’s allegations in the complaint as true, and drawing all
reasonable inferences from those allegations, Mr. VanDerKern has potentially brought a claim
because the school did not follow the procedures outlined in 16 V.S.A. § 1752(b) (2021). All
pleadings must be construed to do substantial justice, V.R.C.P. 8(f), and the court will not deny
hearing a relevant claim pleaded on novel undeveloped grounds. See Montague v. Hundred Acre
Homestead, LLC, 2019 VT 16, ¶ 11, 209 Vt. 514.

While the statute itself does not apply to this employment agreement, the school may
have voluntarily bound itself to use those procedures for the benefit of transitional teachers. For
example, parties often agree in contract to be bound by the laws of specific jurisdictions where
they would not normally be subject to them. See Stamp Tech, Inc. v. Lydall/Thermal Acoustical,
Inc., 2009 VT 91, ¶ 23, 186 Vt. 369. Both parties agree they entered into a contract where “[a]ny
transitional teacher may appeal a non-renewal of contract under the provisions of Title 16,
V.S.A. Section 1752 b.” Mot. Dismiss at 3. The Board stated the reference to 16 V.S.A. § 1752
in the Master Agreement was intended to treat 16 V.S.A. § 1752 as a procedural standard, at
least in some respects. Def’s Reply at 2 (“The Agreement provided the standards for non-
renewal, and . . . it references 16 V.S.A. § 1752 as a procedure to dispute non-renewals”).

On the pleadings, there appears to be a promise to follow a statute. According to the
statute, if a person requested a hearing on the nonrenewal of their contract, the statute granted
them a right to a hearing within 15 days of making the request. 16 V.S.A. § 1752(b) (2021). Mr.
VanDerKern apparently requested a hearing and did not receive an offer of a hearing within 15
days.

At this early stage of the pleadings, where there is a novel claim on the face of the facts,
the court would be reluctant to grant dismissal of the entire legal theory. Montague v. Hundred
Acre Homestead, LLC, 2019 VT 16, ¶ 11, 209 Vt. 514. “[T]he rules allow a plaintiff to plead
over if she has omitted essential elements and require the court to take the plaintiff's allegations
as true on a motion to dismiss, so as not to unfairly prejudice the plaintiff before she has any
opportunity to develop the case.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 13, 184 Vt. 1.
Equally, defendants must have clear pleading to know what claims they defend against.
V.R.C.P. 8(a). To balance these interests, the court grants leave for Mr. VanDerKern to amend
his pleadings. V.R.C.P. 15(a).

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Second, the Board argues the school had wide discretion under the Master Agreement not
to renew any teacher, and therefore never breached the contract with Mr. VanDerKern when it
did not renew him. As to whether there is a cognizable claim here, the court looks to the
contested clause of the contract. The agreement first guarantees that all nonrenewals will only
occur for just cause. Then it lists example grounds of just cause nonrenewal.

The language of this list is not limiting:
Grounds constituting cause include, but are not necessarily limited
to, the following:
1. Incompetence.
2. Conduct which impairs his ability or effectiveness as a
teacher.
3. Failure to attend to duties or failure to carry out
reasonable policies, orders and directives of supervisory
personnel.
4. Physical or mental disability which impairs his ability or
effectiveness as a teacher as indicated in writing by
competent medical authority and concurred by the Head.
5. Reduction in staff.

Agreement, art. V.F. at 12. The purpose of this article is to inform employees what kinds of
conditions can result in the nonrenewal of their contract. Therefore, it must be assumed that a
just cause outside of the listed grounds reasonably relates back to one of those types of grounds
listed. That way, an employee may take guidance from the document as to what they need to do
to avoid nonrenewal, while an employer is spared from having to list every single eventuality of
just cause. If the reason why the Board did not renew Mr. VanDerKern’s contract does not
reasonably relate back to the types of just cause listed, then Mr. VanDerKern has a claim on that
ground.

The reason given by school administration for nonrenewal was “precipitous decline in
interest in the program.” This means the cause stemmed from the students’ interest in that
program. The first four causes listed under Article V.E. are primarily predicated on teacher
behavior, and not the choices of the students. Given the current facts, there does not reasonably
appear to be a connection between the reason given by the school, and the first four types of just
causes.

Since the school advertised for the position after giving Mr. VanDerKern notice, and
filled the position for the upcoming year, a jury could find that the reason given for firing was
not motivated by a desire for staff reduction either, which is the only non-behavioral just cause
not to renew the contract. The procedures in Article XXV, which govern “Reduction in Staff,”
also do not seem to have been followed here, making it even more unlikely that the reason given
to Mr. VanDerKern for nonrenewal is covered under the fifth type of just cause. See Agreement,
art. XXV.C.–H. Mr. VanDerKern appears to have a claim for breach of contract on this ground
should all the facts pleaded in the complaint be true, and no other facts surface in the discovery
process.

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25-CV-02316 Jeremy VanDerKern v. Board of Trustees of Burr and Burton Academy
Order

For the foregoing reasons, the Board’s motion to dismiss is granted in part, and denied in part.
Mr. VanDerKern is directed to file any amended pleadings within fourteen days. The Board
shall have fourteen days from that filing to respond.

Signed electronically October 17, 2025 pursuant to V.R.E.F 9(d).

_________________________________________
David Barra
Superior Court Judge

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