Full opinion text
OPINION & ORDER FEUERSTEIN, District Judge. On November 28, 2008, plaintiff Megan Tyrrell (“plaintiff’) commenced this action against defendants Seaford Union Free School District (“Seaford UFSD”), Seaford High School and Michael Ragon, Paula Sussman, George Duffy, III and Brian Conboy, all in their individual and official capacity, (collectively, “defendants”), pursuant to 42 U.S.C. § 1983 (“Section 1983”) and state law, alleging violations of her due process rights and New York Social Services Law §§ 413 and 420, negligence, failure to supervise, negligent infliction of emotional distress and battery. On April 27, 2009, plaintiff filed an amended complaint against defendants pursuant to Section 1983, Section 901(a) of Title IX of the Educational Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681, et seq., and state law, alleging, inter alia, violations of her due process rights, negligence, failure to supervise, negligent infliction of emotional distress and battery. Defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint. For the reasons stated herein, defendants’ motion is granted. I. Background A. Factual Background 1. The Parties Plaintiff is a twenty-one (21) year old female. (Transcript of the Examination Before Trial of Megan Tyrrell taken on June 14, 2010 [“Plf. Dep.”], p. 7). Plaintiff attended Seaford High School from September 2003, when she entered the ninth grade, until April 2005, during her tenth grade year. (Plf. Dep., pp. 16-17; Transcript of the Examination Before Trial of Lisa Tyrrell taken on June 10, 2010 and June 11, 2010 [“Lisa Dep.”], pp. 24-25). Prior to April 1, 2005, neither plaintiff nor her mother ever complained about security or supervision at the Seaford High School, and no employee of the Seaford UFSD ever told them that they would provide plaintiff with extra security or supervision while she attended Seaford High School. (Plf. Dep., pp. 33-34; Lisa Dep., pp. 49-51). At all relevant times, defendant Michael Ragon (“Ragon”) was the principal of Sea-ford High School, (Transcript of the Deposition of Michael Ragon [“Ragon Dep.”], pp. 11-12); defendant Paula Sussman (“Sussman”) was a social worker and drug and alcohol counselor at Seaford High School, (Transcript of the Deposition of Paula Sussman [“Sussman Dep.”], pp. 11-12, 24); defendant George Duffy (“Duffy”) was the superintendent of the Seaford UFSD, (Transcript of the Deposition of George L. Duffy [“Duffy Dep.”], pp. 12-14); and defendant Brian Conboy (“Con-boy”) was the assistant superintendent of schools “for curriculum, instruction and personnel K through 12” for the Seaford UFSD, (Transcript of the Deposition of Brian Conboy [“Conboy Dep.”], pp. 9-10). (Parties’ Rule 56.1 Statements [56.1 Stat.], ¶¶ 2-5). 2. The April 1, 2005 Incident Plaintiff testified that on Friday, April 1, 2005, she left her home with her friend Corey at approximately five o’clock (5:00) or six o’clock (6:00) in the evening. (Plf. Dep., pp. 82-83, 159). They went to the home of their mutual friend, Albert Brady (“Albert”). (Plf. Dep., pp. 82-83, 159). They spent approximately one (1) hour at Albert’s house, where the three (3) Mends drank one (1) or two (2) cans of beer each. (Plf. Dep., pp. 76-77, 84-86). They then left to meet another of plaintiffs friends, Justine Larracuto (“Justine”), who lived in Massapequa and attended Massapequa High School, at the home of one of Justine’s Mends, Mike, in Seaford. (Plf. Dep., pp. 76-77, 84-86). At Mike’s house, plaintiff drank a forty (40) ounce container of beer. (Plf. Dep., pp. 87-88). After approximately two (2) hours, they left Mike’s home and went to “hang out” in the parking lot of the Dunkin’ Donuts in Seaford, which was a popular teen hangout. (Plf. Dep., pp. 88-89, 91). Plaintiff testified that she drank half (1/2) of another forty (40) ounce container of beer in the parking lot of Dunkin’ Donuts and felt drunk. (Plf. Dep., p. 89, 91, 107). According to plaintiff, Justine also appeared to be drunk because she was “sloppy” and could not walk straight. (Plf. Dep., p. 106-107). Another friend of plaintiffs, Matt Burnhauser (“Matt”), was also present in the parking lot that night. (Plf. Dep., p. 124). Plaintiff testified that she cannot “really remember a lot” of the time she spent in the Dunkin’ Donuts parking lot on the night of April 1, 2005, but remembers “getting into some kid’s car and the lights going on and off and -* * * the door opening;” “flashes of a camera;” and finding her underwear on the street in the parking lot. (Plf. Dep., p. 90, 91, 94-5). Plaintiff did not remember kissing Justine; taking her underwear or pants off; arguing with anyone; any males touching her inappropriately; Justine performing oral sex on her; or objecting to Justine’s actions. (Plf. Dep., p. 96, 97, 99, 101, 119). Plaintiff did not know what time she left the parking lot or what time she got home that night, and she did not know who brought her home. (Plf. Dep., pp. 92-93, 102). Plaintiffs mother testified that plaintiff returned home that night before her curfew, sometime between 10:30 and 11:00 p.m.; appeared “fine” and not intoxicated; and did not tell her that anything went wrong that night. (Lisa Dep., pp. 157-158, 160-161). Plaintiff testified that Justine told her the next day, Saturday, April 2, 2005, that they had “hooked up.” (Plf. Dep., p. 98, 102-104, 106). According to plaintiff, she thought Justine meant that they had kissed, which she “didn’t think * * * was a big deal,” (Plf. Dep., 105), and “she had no idea what happened until [she] saw the pictures [of the incident].” (Plf. Dep., p. 104-105). Plaintiff denied ever asking anyone to take pictures of her and Justine on the night of the incident. (Plf. Dep., p. 174). Tracie Ann Lombardo (“Tracie”) was at the Dunkin’ Donuts parking lot on the night of the incident. (Transcript of Deposition of Tracie Ann Lombardo [“Lombardo Dep.”], pp. 18-19). According to Tracie, plaintiff already appeared intoxicated when she arrived at the parking lot and then plaintiff “chugged” the remainder of a forty (40) ounce beer in front of her. (Lombardo Dep., pp. 23, 56-57). Tracie testified that thereafter, while she was socializing with some other Mends in the parking lot, she heard a rumor that there was a “three-way relationship” involving plaintiff, Justine and a male, whom she did not know, occurring in the front seat of a pickup truck in the parking lot. (Lombardo Dep., pp. 24-26, 58, 61, 69). According to Tracie, she walked over to the truck, looked in the window and saw plaintiff laying down “allowing Justine to go down on her” and a male either standing right next to the open door on the driver’s side of the truck where plaintiffs feet were or sitting in the front seat with plaintiff and Justine. (Lombardo Dep., pp. 24, 26-27, 30, 61, 71). Tracie did not see any physical contact between the male and plaintiff. (Lombardo Dep., pp. 69-71). Tracie testified that plaintiff was conscious and laughing during the incident, and she did not hear plaintiff object in any way during the incident. (Lombardo Dep., pp. 27-28, 61-62). According to Tracie, she turned around because she was “grossed out,” at which time she saw two (2) or three (3) males in the back of the truck taking pictures of the sexual encounter with their cameras through the back window of the truck. (Lombardo Dep., pp. 24-25, 28-29). Traeie then left because she was “disgusted with what was going on.” (Lombardo Dep., p. 25). 3. The Pictures and Subsequent Harassment Matt testified that on the morning of April 2, 2005, his friend Kevin Slavin (“Slavin”) came to his home and told him that “something happened with [plaintiff] with pictures of her being nude and stuff going around and whatnot, and he had the pictures, whatever.” (Transcript of Deposition of Matthew Burnhauser [“Burnhauser Dep.”], pp. 27, 29). According to Matt, Slavin used his computer to access a photo-sharing website called “Photobucket.com” with a “link” to “John’s car,” showed him pictures of plaintiff displayed on that website and told him that “[plaintiff] got drunk and * * * diked out. She went lesbo.” (Burnhauser Dep., pp. 27-29, 31, 61). Matt did not know who took the pictures or put them on the website. (Burnhauser Dep., pp. 33, 66, 68; Plf. Dep., pp. 153-154). According to Matt, the pictures had been taken off of the website “pretty quick, like in a week or two.” (Burnhauser Dep., p. 30). Matt testified that he “probably” spoke with plaintiff that same date, i.e., April 2, 2005; that he told plaintiff that he had seen pictures of her on a website and what website they were on; and that plaintiff originally told him that she did not remember anything, but also told him that “guys raped her,” she was embarrassed by the pictures of her and Justine and she wanted the pictures “down.” (Burnhauser Dep., pp. 33-35, 37-39). According to Matt, plaintiff remembered “bits and pieces of things, but not the whole thing” and believed that “she had been ruffied [drugged] or something.” (Burnhauser Dep., pp. 37-38, 66-67). Contrary to Matt’s testimony, plaintiff denied hearing anything about the April 1, 2005 incident until the evening of Tuesday, April 5, 2005, when Tracie called her and told her that there were pictures of her and Justine online which showed her “privates.” (Plf. Dep., p. 96, 108-110). According to plaintiff, Tracie never indicated that she had actually seen the pictures online or how she had found out about the pictures. (Plf. Dep., p. 176). Plaintiff testified that she accessed the website about which Tracie had told her from her home computer and saw two (2) pictures of her taken during the April 1, 2005 incident displayed on the website. (Plf. Dep., pp. 96, 108-110, 112). Both pictures depicted Justine performing oral sex on plaintiff, (Plf. Dep., p. 98-99), but one was also a closeup of plaintiffs vagina. (Plf. Dep., p. 99). Plaintiff has not seen any other pictures taken during the April 1, 2005 incident. (Plf. Dep., p. 108). Plaintiff could not recall the address of the website on which she viewed the pictures, but testified that it was “one of those Web photoshotdot-com or one of those websites where you put pictures up of you and your Mends,” and not a pornographic website. (Plf. Dep., p. 111). According to plaintiff, the website was “open” and not a private site, and did not require a password to access it. (Plf. Dep., p. 111). Contrary to plaintiffs testimony, Tracie denied ever calling plaintiff and telling her about the pictures on the internet. (Lombardo Dep., p. 40). According to Tracie, about a week or two after the incident, plaintiff had told her that there were pictures of her on the internet and that she was upset that anyone would take pictures and post them on a website. (Lombardo Dep., pp. 34-35, 67, 73). Plaintiff denied telling her parents or the police about the website on April 5, 2005. (Plf. Dep., p. 115). She also did not tell any employee of the Seaford UFSD about the website the following school day, Wednesday, April 6, 2005. (Plf. Dep., p. 116). Plaintiff testified that when she spoke with Justine on Wednesday, April 6, 2005 or Thursday, April 7, 2005, Justine told her that the April 1, 2005 incident and pictures were not a problem for her because everyone knew that she was bisexual. (Plf. Dep., p. 116, 118). According to plaintiff, she knew prior to the April 1, 2005 incident that Justine was bisexual, but did not think Justine “would do anything to [her].” (Plf. Dep., p. 116). Plaintiff testified that Justine told her that she knew who put the pictures on the website, but refused to tell her. (Plf. Dep., pp. 117-118). However, plaintiff also testified that the individuals who took the pictures went to Massapequa High School and that she knew one of them had the last name “Rollo.” (Plf. Dep., p. 154). She did not know Rollo prior to the incident, but claimed that Justine told her that he was present in the Dunkin’ Donuts parking lot at the time of the incident. (Plf. Dep., p. 154). Plaintiff testified that on Wednesday, April 6, 2005 or Thursday, April 7, 2005, she asked a student in her French class why everybody was giving her the cold shoulder and making fun of her, and was told it was because of the pictures of the April 1, 2005 incident. (Plf. Dep., pp. 119— 120). According to plaintiff, the students were being “more nasty to [her], making fun of [her], pointing at [her] in the hallways[,]” and calling her “a lesbian, carpet-muncher.” (Plf. Dep., p. 120). About a week later, she also observed graffiti in a bathroom stall indicating: “Megan Tyrrell is a lesbian and has herpes.” (Plf. Dep., p. 120, 122). According to plaintiff, when she asked one of her friends about the graffiti, her friend replied: “Well it’s true, isn’t it?” (Plf. Dep., p. 120). Plaintiff testified that the harassment continued throughout the two (2) weeks that she remained in Sea-ford High School following the April 1, 2005 incident. (Plf. Dep., p. 121). 4. Sussman’s Interview with Plaintiff On or about April 7, 2005, following a date rape seminar at Saint Anthony’s School in Huntington (“Saint Anthony’s”), where Matt attended school, Matt told Mr. Hett, a social worker at Saint Anthony’s, (Plf. Dep., p. 152; Burnhauser Dep., pp. 12, 33, 40), that he was concerned about plaintiff, (Lisa Dep., pp. 231-232; Sussman Dep., p. 47; Declaration of Marjorie Mesidor in Support of Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment [Mesidor Decl.], Ex. F), because she had been raped and there were pictures of her “getting eaten out by this girl” on the internet, (Burnhauser Dep., pp. 40-41). Mr. Hett then called Sussman and told her about the pictures, (Lisa Dep., p. 232; Duffy Dep., p. 48; Mesidor Decl., Ex. F), and that plaintiff had told Matt that she had gotten drunk, passed out and had been sexually assaulted by several young men over the weekend, (Sussman Dep., pp. 46-48; Mesidor Deck, Ex. F). Thereafter, Sussman reported to Ragon that plaintiff had been “sexually violated” over the weekend, that pictures had been taken of the incident and that she was going to interview plaintiff. (Sussman Dep., p. 49; Ragon Dep., pp. 37-38; Conboy Dep., p. 116; Mesidor Decl., Ex. F). Ragon agreed that Sussman should talk to plaintiff and told her to keep him informed. (Sussman Dep., pp. 49-50; Ragon Dep., p. 39; Conboy Dep., pp. 44, 53-54,116). On April 7, 2005, the same day that she learned of the April 1, 2005 incident and pictures, Sussman called plaintiff into her office to interview her about the incident. (56.1 Stat., ¶¶ 12; Plf. Dep., p. 121; Lisa Dep., p. 232; Sussman Dep., pp. 46, 49-52; Mesidor Decl., Ex. F). Sussman observed that on the way to her office, plaintiffs demeanor was “upbeat.” (Mesidor Decl., Ex. F). According to Sussman, she told plaintiff that she had received a disturbing telephone call that she hoped plaintiff could clarify for her, then she asked plaintiff what had happened to her over the weekend. (Sussman Dep., pp. 52-53; Mesidor Decl., Ex. F). Sussman testified that plaintiff told her that she had been drinking in the Dunkin’ Donuts parking lot and had gotten drunk; that she had gotten into the backseat of a car with her best friend, where they proceeded to have “oral and manual sex;” and that pictures had been taken of her engaging in sexual activity with her best friend and were displayed on a website. (Sussman Dep., pp. 53, 55-56, 62, 63; Mesidor Deck, Ex. F). According to Sussman, plaintiff did not know how to get to the website on which the pictures were displayed, but identified one (1) student of Seaford High School, Gerald Travato (“Travato”), whom she believed had information regarding the website. (56.1 Stat., ¶¶ 19; Sussman Dep., pp. 54-56, 59-60). Plaintiff never told Sussman that she could not remember the incident, that she had blacked out during the incident or that she had awakened to find her underwear on the floor. (Sussman Dep., p. 62). Plaintiff testified that she did not remember going into detail about the April 1, 2005 incident or pictures with Sussman, (Plf. Dep., p. 123, 124), and she did not view the pictures on the internet with Sussman, (Plf. Dep., p. 127). According to plaintiff, she told Sussman what the two (2) pictures she had previously observed depicted; that she had been drinking; and that she could only remember “the lights going on and off, flashing lights, a door opening, [and] finding [her] underwear on the floor.” (Plf. Dep., p. 126). Plaintiff testified that Sussman told her that there had been a similar situation before where someone took pictures of a girl and her boyfriend and “it’s not that big of a deal” and was “nothing to get all worked up about.” (Plf. Dep., p. 123, 125-126). Plaintiff further testified that she only spoke with Sussman on that one occasion and that they had spoken for only ten (10) to twenty (20) minutes. (Plf. Dep., pp. 123-124,127,155). Contrary to plaintiffs testimony, Suss-man denied discussing a similar situation with plaintiff or telling plaintiff that her situation was “not that big of a deal.” (Sussman Dep., pp. 56-57). According to Sussman, she told plaintiff that she was available to her if she needed her for anything and that her door was always open. (Sussman Dep., pp. 56-57). Sussman further testified that when she asked plaintiff if she was all right, plaintiff responded “yes,” but told her that “a few students” had made “some snide remarks” about her being a lesbian that morning. (Sussman Dep., pp. 54, 55, 101-102; Mesidor Deck, Ex. F). Plaintiff did not identify the students who made the remarks to Sussman. (Sussman Dep., pp. 55-56). According to Sussman, plaintiff appeared “[m]ore angry than upset” that students had called her a lesbian earlier in the day; had appeared “fine” during their conversation, i.e., she was not crying, screaming or extremely emotional; was “very matter of fact in talking to [her];” and did not appear uncomfortable or embarrassed. (Sussman Dep., pp. 142-143, 145-147, 152; Mesidor Deck, Ex. F). Ragon testified that Suss-man had relayed to him that plaintiff had not expressed “the level of concern that someone would have experienced] — going through the act * * * and didn’t express any level of depression * * (Ragon Dep., pp. 115-116). Sussman testified that she told plaintiff that she wanted to call her parents, (Lisa Dep., p. 182; Sussman Dep., p. 99), but plaintiff told her that she did not want her parents to know about the incident or pictures. (Plf. Dep., p. 130; Sussman Dep., pp. 54, 99). Plaintiff did not ask Sussman to contact the police and testified that she did not, in fact, want the police contacted. (Plf. Dep., p. 132). Plaintiff could not remember if she asked Sussman to try to do anything with respect to the pictures on the website. (Plf. Dep., pp. 132-133). Contrary to plaintiffs testimony, Suss-man testified that she called plaintiff to her office again the following day to see how she was doing and to tell her that she “knew for a fact that the website was down * * (Sussman Dep., pp. 97-98; Mesidor Deck, Ex. F). According to Sussman, plaintiff appeared relieved and seemed “fine.” (Sussman Dep., p. 98, 99; Mesidor Deck, Ex. F). Sussman never told plaintiff that she had seen the pictures. (Suss-man Dep., p. 98). According to Matt, plaintiff had initially been angry with him for telling Mr. Hett about the incident and pictures because she “didn’t want anyone knowing” and she had been called down to Sussman’s office as a result. (Burnhauser Dep., pp. 39, 43-44). However, a couple of days later, plaintiff called Matt and thanked him. (Burnhauser Dep., p. 39, 44, 45). Prior to meeting with Sussman on April 7, 2005, plaintiff had not told any adult at Seaford High School about the April 1, 2005 incident or the pictures. (Plf. Dep., pp. 121-122). Although plaintiff testified that some students were already making fun of her and calling her names in the hallways and classrooms at school, she did not tell any adult at Seaford UFSD about the harassment. (Plf. Dep., p. 128-129, 156). Plaintiff testified that she did tell someone about the bathroom graffiti, but she could not remember whom. (Plf. Dep., pp. 156-157). Moreover, plaintiff did not ask anybody at the Seaford UFSD to remove the bathroom graffiti. (Plf. Dep., p. 157). Plaintiff testified that after she spoke with Sussman, the harassment at school got worse and was most severe through June 2005. (Plf. Dep., pp. 155-156, 159-161). According to plaintiff, people would scream and curse at her; call her names in the hallways; tell her to leave school; and push her. (Plf. Dep., pp. 159-160). Even though she did not attend Seaford High School after April 19, 2005, plaintiff claimed that the harassment continued “any time anyone would see [plaintiff] at a party or something * * * ” and “any time [she] would see anybody, whether [she] was at the library being home-schooled, walking home from the library, hanging out with [her] friends and seeing other people from school.” (Plf. Dep., p. 161, 186-187). Plaintiff did not know if the people harassing her had actually seen the pictures or if they had just heard about the April 1, 2005 incident. (Plf. Dep., p. 187). Plaintiff did not tell any adult at Seaford High School of the harassment, provide them with the names of any of the students harassing her or communicate in any way with Ragon, Conboy or Duffy about the incident. (Plf. Dep., pp. 160, 175-176, 192-193, 222-223). Although plaintiff claimed that she “noticed that some of the teachers were getting a little concerned * * * [and] always asked [her] if [she] needed somebody to talk to or if [she] was upset [she] could always go and turn to them,” (Plf. Dep., p. 223), she did not talk to any teacher about the incident or harassment because she did not want to talk to anybody about what happened, “especially not a teacher if they already knew about it.” (Plf. Dep., p. 224). 5. Defendants’ Investigation On April 7, 2005, following her first discussion with plaintiff, Sussman reported to Ragon that plaintiff had told her that she had been drinking and had engaged in consensual behavior with her best friend, of which pictures had been taken; and that plaintiff had identified Travato as a Sea-ford UFSD student who could provide them with the address of the website on which the pictures were displayed. (Suss-man Dep., pp. 59-62; Ragon Dep., p. 43; Mesidor Decl., Ex. F). Thereafter, Suss-man and Ragon spoke with Travato, who provided them with the name of his cousin, a student at Massapequa High School, as someone with knowledge of the address of the website on which the pictures were displayed. (56.Í Stat., ¶¶ 20; Sussman Dep., pp. 61, 67-71; Ragon Dep., pp. 44-45; Duffy Dep., pp. 46-47). On April 7, 2005, following her interview with Travato, Sussman contacted George Taibi (“Taibi”), a social worker at Massapequa High School, (Lisa Dep., p. 232; Sussman Dep., pp. 72-73; Mesidor Deck, Ex. F), and requested assistance in shutting down the website on which the pictures of the April 1, 2005 incident were displayed. (56.1 Stat., ¶¶ 22). Within one (1) hour thereafter, Taibi called Sussman back and advised her that the principal of Massapequa High School had obtained the website address and would have the student involved with it shut it down and remove the pictures. (56.1 Stat., ¶¶ 22; Sussman Dep., pp. 74-76). After Sussman was provided with the address of the website on which the pictures of the April 1, 2005 incident were displayed, she accessed the website, which she described as a “photo gallery personal website,” from her office computer and viewed two (2) or three (3) pictures of plaintiff and “another young lady” performing sexual acts. (56.1 Stat., ¶¶ 23; Sussman Dep., pp. 76-81, 94; Conboy Dep., p. 92). After viewing the pictures, Sussman reported to Ragon that the pictures existed on the internet and that she was waiting to hear back from Massapequa. (Sussman Dep., p. 82; Ragon Dep., pp. 47-51). Ragon never indicated to Sussman that the matter should be reported to plaintiffs parents, the police or the Department of Social Services. (Sussman Dep., pp. 82-84). According to Ragon, he never reported the matter to any governmental agency because he “did not believe it fell under the criteria to report it to an agency.” (Ragon Dep., p. 108). Sussman accessed the website from Ragon’s office later that same day, April 7, 2005, and ascertained that the pictures of the April 1, 2005 incident had been removed from the site. (56.1 Stat., ¶¶24; Sussman Dep., pp. 79-80, 153). Sussman did not know of anyone besides herself accessing the pictures from a Seaford UFSD computer or of any other person from the Seaford UFSD administration ever seeing the pictures. (Sussman Dep., p. 94). Ragon testified that he never saw the pictures and was never provided with any information giving him the impression that they “were of a pornographic form.” (Ragon Dep., pp. 107-108). Conboy was never made aware of the identity of any individual who allegedly saw the pictures displayed as “wallpaper” on the Seaford UFSD’s computers. (Conboy Dep., p. 97). According to plaintiffs mother, a detective told her that the pictures of the April 1, 2005 incident had been displayed “as wallpaper” on the computers in the Sea-ford High School computer room and Matt’s mother told her that Matt’s friend said that he had seen the pictures on Sea-ford UFSD computers. (Lisa Dep., pp. 205-207, 252-254). Although Matt never saw the pictures of the April 1, 2005 incident on any Seaford UFSD computer, he claimed that “a lot of [his] friends * * * said it was like the background of * * * the computers in the computer lab room.” (Burnhauser Dep., pp. 45^16). According to Matt, plaintiff, Slavin and some other friends told him that Travato put the pictures “in the background [on computers] of Seaford High School * * * ” and that the pictures were set as “background” on the computers in the Seaford High School computer labs “[a]t least for a couple of days.” (Burnhauser Dep., pp. 50-51, 63-64). However, Matt also testified that he did not know who set the pictures as “background” on the Seaford UFSD computers or if any teachers knew about it. (Burnhauser Dep., pp. 64-65). Plaintiff also never saw the pictures of the April 1, 2005 incident on a Seaford UFSD computer, (Plf. Dep., p. 134), or told anyone at the Seaford UFSD that the pictures were being displayed on the Sea-ford UFSD computers, (Plf. Dep., p. 135, 186). Plaintiff did not tell her mother that she ever saw the pictures displayed on a Seaford UFSD computer. (Lisa. Dep., p. 204). According to plaintiff, following her discussion with Sussman on April 7, 2005, Tracie and another student, Robert Gem-ski (“Gemski”), told her that the pictures of the April 1, 2005 incident were being displayed on the computers in the Seaford High School computer room. (Plf. Dep., pp. 134-135, 186; Plf. Interr. Resp. No. 10(c)). However, Gemski testified that although he had heard of the existence of “inappropriate” pictures of plaintiff engaging in oral sex with another female, he never saw any such pictures, heard of the pictures being shown in Seaford High School or told plaintiff, Tracie or anyone else that he had seen the pictures displayed as “wallpaper” on the Seaford UFSD’s computers. (Transcript of Deposition of Robert Gemski [“Gemski Dep.”], pp. 9, 15, 21-22, 24, 27, 63). Likewise, Tracie testified that although she saw a couple of the pictures of the April 1, 2005 incident, she did not see them at Seaford High School, (Lombardo Dep., pp. 32, 55), and she never learned that they had been displayed on the Seaford UFSD’s computers, that they were being distributed or that any student had ever accessed the pictures from a Seaford High School computer. (Lombardo Dep., pp. 38-39, 55). Ragon informed both Conboy and Duffy of the April 1, 2005 incident and pictures. (Ragon Dep., pp. 53-54, 57-58; Conboy Dep., pp. 39-40, 42; Duffy Dep., pp. 29-31, 36). According to Conboy, based upon a conversation he had with Ragon following Sussman’s interview with plaintiff, wherein Ragon had informed him that plaintiff had been “forthcoming in speaking to [Suss-man] and comfortable in speaking to [Sussman] and returned to school after [her] conversation [with Sussman],” he believed that “the situation was being handled appropriately.” (Conboy Dep., pp. 56-57, 60). Conboy did not discuss the matter with Duffy until plaintiffs mother requested home-schooling for plaintiff a few weeks later, (Conboy Dep., p. 47), and never notified plaintiffs parents of what he had learned about the incident. (Conboy Dep., p. 54). Conboy testified that at Duffy’s direction, the Seaford UFSD investigated an allegation that a student had accessed one of the pictures of the April 1, 2005 incident from, and displayed it as “wallpaper” on, a computer in one of Seaford High School’s computer labs, but was never able to substantiate that allegation. (Conboy Dep., pp. 93-95, 99). Specifically, Ragon contacted Mark Derison (“Derison”), the director of technology for the Seaford UFSD during the 2004/2005 and 2005/2006 academic years; provided him with a website address; and requested that he ascertain if anybody had viewed “inappropriate” pictures and/or video of a Seaford UFSD student on that website from a Seaford UFSD computer and, if so, whether that website could be blocked or removed from the Seaford UFSD computers. (Transcript of Deposition Testimony of Mark Derison [“Derison Dep.”], pp. 12-13, 79-82). Derison’s subsequent search of the Bascom security system used by the Sea-ford UFSD revealed that the website had been accessed only once from one (1) computer, that being . Sussman’s computer. (Derison Dep., pp. 82-83; Conboy Dep., pp. 94-96, 99; Duffy Dep., pp. 21-24). Derison then blocked access to the website from all Seaford UFSD computers and reported his information to Ragon. (Derison Dep., pp. 83, 85). According to Derison, the Bascom security system would not have revealed whether any pictures had been displayed as “wallpaper” on a particular computer. (Derison Dep., p. 88). According to Con-boy, the Seaford UFSD’s computers and servers were not searched to ascertain whether the pictures of the April 1, 2005 incident had ever been uploaded from a source other than a website. (Conboy Dep., p. 96). However, Derison did not believe any of the software used by the Seaford UFSD at all relevant times would have indicated if the pictures had been displayed as “wallpaper” on a Seaford UFSD computer. (Derison Dep., p. 92). 6. Plaintiffs Mother’s Involvement Plaintiffs mother testified that she first learned of the April 1, 2005 incident and pictures on or about April 15, 2005, when her sister, Sally, informed her that there were “compromising” pictures of plaintiff “going around in Seaford [UFSD]” and “all over Seaford.” (Lisa Dep., pp. 149-150, 162-170, 174, 236). Sally did not see the pictures and was not an employee of the Seaford UFSD, and plaintiffs mother did not know from where Sally gained the information she transmitted to plaintiffs mother. (Lisa Dep., pp. 165, 168, 261). Plaintiff testified that she did not tell her parents about the incident or pictures and that one afternoon her mother just asked her if there were pictures of her displayed on the internet. (Plf. Dep., p. 161). According to plaintiff, upon being confronted by her mother, she started crying and went to her room because she did not want to discuss the situation with her mother. (Plf. Dep., pp. 161-162). Plaintiff testified that she did not discuss the incident and pictures with her mother until they went to see Pat Mosounic (“Mosounic”), the psychologist with whom plaintiff had been treating since she was fourteen (14) years old. (Plf. Dep., pp. 29, 34, 162; Lisa Dep., pp. 24-29, 54-55). During their session with Mosounic, plaintiff told her mother that she had “ended up drinking” and did not “really remember most of th[e] night, but the pictures explained what happened.” (Plf. Dep., p. 162). Plaintiffs mother never saw the pictures of the April 1, 2005 incident or tried to access the website on which the pictures were displayed. (Plf. Dep., p. 162; Lisa Dep., p. 183, 227-228, 255). Plaintiffs mother testified that when she first spoke with plaintiff about the April 1, 2005 incident, plaintiff denied having been under the influence of anything at the time of the incident and told her that she had been “hanging out with her Mend, and that all she remembered was her underwear around her ankles;” that she did not remember the incident or the pictures being taken; and that she had found out about the pictures from someone from school. (Lisa Dep., pp. 175-177, 185-186, 199, 250, 310). Plaintiffs mother testified that she believed that plaintiffs inability to remember anything about the April 1, 2005 incident was because “somebody had slipped [her] something.” (Lisa Dep., pp. 177-179). Plaintiffs mother further testified that plaintiff told her that pictures of Justine “simulating a sexual act” on her “were posted on the web and that * * * she endured a lot of harassment at school, that kids were calling her lesbian, that everybody was pointing to [her], and saying ‘That was the girl.’ * * * [and][t]here was stuff written on thé bathroom wall, that [she] was a lesbian.” (Lisa Dep., pp. 192, 250). Plaintiff also told her mother “that the whole school knew about it.” (Lisa Dep., p. 193). According to plaintiffs mother, the pictures had been posted on “a public web, from somebody from Massapequa” named “Mike,” (Lisa Dep., p. 194), and Mike’s cousin “went to Seaford [UFSD], and injected the pictures into Seaford [UFSD’s] computer.” (Lisa Dep., p. 196). Plaintiff did not tell her mother about the alleged harassment of her at school prior to April 15, 2005, (Lisa Dep., p. 236), but did tell her that she had spoken with Sussman about the April 1, 2005 incident and pictures and that Sussman had seen the pictures. (Lisa Dep., p. 167, 170-171,180-181,188,198, 322). On Friday, April 15, 2005, two (2) weeks after the incident, plaintiffs mother went to Seaford High School to speak with Sussman. (Lisa Dep., p. 167, 170-171, ISO-181, 188, 198, 322; Duffy Dep., p. 93). According to plaintiffs mother, because the secretary at Seaford High School told her that Sussman was not there, she spoke with the assistant principal to ascertain whether he “knew of any pictures” and made an appointment to speak with Suss-man the following Monday, April 18, 2005. (Lisa Dep., p. 167, 170-171, 180-181, 188, 198, 322; Duffy Dep., p. 93). On Monday, April 18, 2005, Sussman met with plaintiffs mother, but told her that she would not discuss the matter without a signed release form from plaintiff because of confidentiality concerns, (Plf. Dep., p. 164; Lisa Dep., p. 213, 215-219, 322-323; Sussman Dep., p. 108, 113, 116; Duffy Dep., pp. 93-94; Mesidor Deck, Ex. F); that the pictures had been taken off the website; and that she should discuss the matter with plaintiff. (Suss-man Dep., pp. 117-118). According to Sussman, as a social worker for the Sea-ford UFSD, she followed a policy and procedure regarding student confidentiality set by the New York State Office of Mental Health and Alcohol Abuse, which paid part of her salary, providing that such confidentiality could only be broken: (1) if she was aware of (a) child abuse, which she defined as “[t]he use of force, physical force, against a child,” (b) neglect, which she defined as “[n]ot providing the child with adequate things that they would need for their ability to thrive” or (c) sexual abuse, which she defined as “any kind of sexual intercourse or forced sexual acts by an adult to a minor” or a “forced situation” between minors; or (2) if someone indicated that they were going to harm themselves or someone else. (Sussman Dep., pp. 34-36, 38-43, 119). Plaintiffs mother never complained to anyone at the Seaford UFSD about her conversation with Suss-man. (Lisa Dep., p. 226). According to an e-mail dated May 2, 2005, sent by Ragon to Duffy upon Duffy’s request for a timeline of the situation, (Ragon Dep., pp. 58-63; Duffy Dep., pp. 45-46, 68), Ragon had contacted Duffy on April 18, 2005 to inform him of Sussman’s meeting with plaintiffs mother, at which time Duffy told Ragon that he believed plaintiffs mother should be informed “as the incident may present a danger to the health and safety of [plaintiff].” (Mesidor Decl., Ex. D). According to Duffy, Ragon contacted him for guidance on how to proceed because he was concerned that Suss-man believed that her conversation with plaintiff was confidential and that plaintiff did not want the information shared with her parents. (Duffy Dep., pp. 31, 38-39, 46, 49, 90-91). Duffy testified that it was his understanding following his conversation with Ragon that plaintiff “like any other teenage girl at that age wouldn’t want their parents to be aware of what activity they’ve been involved in, but was okay with [the April 1, 2005 incident], was not upset by it, that it was a consensual behavior between she and [that] other young lady and that she was fine. She really didn’t want any other involvement in it * * * ” (Duffy Dep., pp. 49, 59). Following his conversation with Duffy, Ragon contacted the Seaford UFSD’s counsel, who, according to Ragon’s May 2, 2005 e-mail, returned his call two (2) days later, i.e., on or about April 20, 2005. (Mesidor Deck, Ex. D). After speaking with counsel, Ragon contacted plaintiffs mother to schedule a meeting with her, (Mesidor Deck, Ex. D), to inform her “of the nature of what had taken place and that there had been pictures on the internet and that [the Seaford UFSD’s] understanding was that at th[at] time [the pictures] had been removed from the internet.” (Duffy Dep., pp. 31, 32, 96). According to Ragon’s email, he met with plaintiffs mother on April 22, 2005, the same date that she returned his call, (Mesidor Deck, Ex. D), although plaintiffs mother testified that Ragon contacted her on or about April 19, 2005, (Lisa Dep., p. 226). According to plaintiffs mother, Ragon told her that the Seaford UFSD had consulted with its lawyers and was ready to talk to her; that he had found out about the pictures of the April 1, 2005 incident; and that everything had been “taken off the computer” as of April 11th or 12th, 2005. (Lisa Dep., pp. 226-227). Plaintiffs mother further testified that Ragon identified Travato, who attended Seaford High School, and Travato’s cousin Mike and Justine, both of whom attended Massapequa High School, as the individuals involved in the April 1, 2005 incident and told her that Mike “had pictures on a website,” but “that any other pictures on the computer were taken off.” (Lisa Dep., pp. 242-243, 265-266). Ragon did not specify to which computers he was referring and never said that students at Seaford High School had posted or had been looking at the pictures on Seaford UFSD computers. (Lisa Dep., pp. 243-245, 266). Plaintiffs mother did not believe that anyone employed by the Seaford UFSD had displayed the pictures on the Seaford UFSD computers, only that they, and specifically Sussman, had seen them. (Lisa Dep., pp. 247-249). According to plaintiffs mother, she did not know anything about the pictures being on the Sea-ford UFSD’s computers until she spoke with Ragon “and he filled [her] in on who was involved * * * named all the names, and [provided her with] the full story * * (Lisa Dep., p. 228, 231, 234). Plaintiffs mother further testified that Ragon also mentioned the name “John Rollo” as someone “involved in the incident, somehow.” (Lisa Dep., p. 271). Plaintiffs mother testified that following her conversation with Ragon, she called Saint Anthony’s and asked Mr. Hett and a Mrs. Walsh when they had learned of the April 1, 2005 incident and pictures. (Lisa Dep., pp. 235-237). According to plaintiffs mother, they told her that they had learned about the incident and pictures on April 6, 2005, following a rape seminar, and that they had contacted Sussman on that date. (Lisa Dep., p. 237). Over plaintiffs objection, plaintiffs mother reported the April 1, 2005 incident and the existence of the pictures to the Nassau County Police Department (“NCPD”) following her discussion with Ragon. (56.1 Stat., ¶¶ 33; Lisa Dep., p. 241-242, 246; Plf. Dep., pp. 168-169). According to plaintiff, she was interviewed by a female detective whom she told that she did not remember most of the April 1, 2005 incident because she had been drinking and “was blacking in and out” or unconscious, but that pictures of her with another girl had been displayed on the computer a couple of days after the incident. (Plf. Dep., pp. 166-167). Plaintiffs mother did not object to the NCPD closing its investigation, or request that anyone be arrested, after detectives from the NCPD retrieved the pictures and a video taken during the April 1, 2005 incident and showed the video to her. (56.1 Stat., ¶¶ 34-35; Lisa Dep., pp. 184, 258-259). According to plaintiffs mother, the video depicted Justine running over to plaintiff, who was awake and fully dressed, yelling “They want us to do it. They want us to do it again,” and kissing plaintiff on the lips. (Lisa Dep., pp. 256-257). At her mother’s request, plaintiff did not return to Seaford High School after April 19, 2005. (56.1 Stat., ¶¶ 26; Lisa Dep., pp. 240, 349, 361; Ragon Dep., p. 76, 81). Before she left Seaford High School, plaintiff never observed any pictures of her on any of the computers at the school. (56.1 Stat., ¶¶ 27). By letter to Ragon, dated April 26, 2005, plaintiffs mother requested that plaintiff be home-schooled for the remainder of the 2004-2005 academic year. (Mesidor Deck, Ex. C). Although Conboy was usually the administrator who approved home-schooling for students in the Seaford UFSD, (Conboy Dep., pp. 15-16; Duffy Dep., pp. 55-56), Duffy actually made the decision to approve home-schooling for plaintiff, informed Conboy of his decision and directed Conboy to follow up with plaintiffs mother. (Conboy Dep., pp. 21-26, 112; Duffy Dep., pp. 56-58). According to Duffy, he approved home-schooling for plaintiff based upon documentation from Mosounic indicating that plaintiff had stopped attending school and required home instruction. (Duffy Dep., pp. 63-64). Plaintiff was home-schooled throughout the remainder of her sophomore year and during her entire junior year. (Plf. Dep., pp. 18-19; Lisa Dep., pp. 241, 350, 352-353). Plaintiffs mother testified that she filed a notice of claim on behalf of herself and plaintiff with the Seaford UFSD. (Lisa Dep., p 56). A facsimile cover sheet from plaintiffs mother to Wendy Pelle-Beer dated June 17, 2005[sic] indicates that plaintiffs mother delivered the notice of claim on June 27, 2005. (Reply Affidavit of Francis X. Schroeder [Schroeder Reply], Ex. 1). However, the notice of claim was not notarized until June 28, 2005. (Schroeder Reply, Ex. 1). A notice of claim dated June 27, 2005 was marked as being received in Duffy’s office on June 28, 2005. (Duffy Dep., pp. 72-73). 7. Seaford UFSD’s Internet Access Policy Derison testified that the Seaford UFSD, as a recipient of federal “E-Rate funds,” was required “to provide a secure educational environment for students online” in compliance with the Children’s Internet Protection Act (“CIPA”). (Derison Dep., p. 18). According to Derison, “[t]he easiest way to comply with CIPA was to install filtering hardware and/or software,” so that was what the Seaford UFSD did. (Derison Dep., p. 19). The filtering hardware and/or software was installed on Sea-ford UFSD computers sometime before the 2004/2005 academic year, although no one knew the precise date of installation. (Derison Dep., pp. 20-21; Ragon Dep., p. 17; Conboy Dep., pp. 71-72; Duffy Dep., p. 17). According to Derison, the E-Rate program required the Seaford UFSD to submit paperwork every three (3) years from when it accepted or applied for E-Rate funding. (Derison Dep., pp. 25-26). According to Conboy, Seaford UFSD’s filtering program is evaluated every two (2) years, as part of the Seaford UFSD’s state-mandated technology plan. (Conboy Dep., pp. 73-74). The Seaford UFSD was never cited by the E-Rate program for a failure to comply with CIPA. (Derison Dep., p. 27). During the 2004/2005 academic year, Seaford UFSD’s filtering program used a combination of software and hardware from a company called Bascom. (Derison Dep., pp. 21-22). According to Derison, the Seaford UFSD used the latest version of the program, so that whenever it was updated, Seaford UFSD’s program was updated. (Derison Dep., pp. 21, 23-24). The filtering program excluded access to particular websites based upon address or category, (Ragon Dep., pp. 23-25; Derison Dep., pp. 29, 73-74), and also, according to Ragon, to content based upon certain words or phrases connected to “inappropriate material.” (Ragon Dep., pp. 23-25). Although a website with content blocked by category could be accessible if “there was * * * a logical reason for which Bascom allowed it to pass,” websites “specifically blocked by address * * * could not be accessed.” (Derison Dep., pp. 73-74). A list of prohibited websites was loaded into the system and automatically updated each night by Bascom, and Derison could add any other website at any time. (Derison Dep., pp. 30-31). According to Derison, the Seaford UFSD “tended to be more restrictive [about the websites accessible on its computers] than the default” set by Bascom, (Derison Dep., p. 32), and students, parents and teachers “generally complained [that the filtering system] was too restrictive.” (Derison Dep., pp. 38-39). Derison referred the complainants to the Seaford UFSD’s policy on internet use and to CIPA. (Derison Dep., p. 39). Students’ access to the internet was more restrictive under the filtering program than the access provided to administrators and teachers of the Seaford UFSD. (Ragon Dep., p. 19; Derison Dep., pp. 41-44). The Seaford UFSD also had its own policies and procedures regarding use of the internet on its computers. (Derison Dep., pp. 27-28). Pursuant to the Seaford UFSD’s internet-use policy, only websites “deemed educationally appropriate” could be viewed on its computers. (Derison Dep., pp. 28, 32-33, 59; Ragon Dep., p. 25; Duffy Dep., p. 77). Child pornography was not permitted to be viewed on Seaford UFSD computers, (Ragon Dep., p. 107; Conboy Dep., pp. 101-102), and sites “of a sexual nature” were also prohibited. (Derison Dep., pp. 72-74). Staff members of the Seaford UFSD monitored students’ access to Seaford High School computers. (Ragon Dep., pp. 25-26; Conboy Dep., pp. 79-82; Duffy Dep., p. 20; Derison Dep., p. 29). In addition, students of Seaford High School and their parents were required to read and sign the Seaford UFSD’s internet-use policy annually before they would be issued a user name and password allowing them access to a Seaford UFSD computer. (Derison Dep., pp. 29-30, 60-61). The Seaford UFSD’s policy did not permit a student access to its computers otherwise. (Derison Dep., pp. 61-63). In addition, students were “locked out of manipulating most settings on the [Seaford UFSD’s] computers,” including, inter alia, the ability to change the desktop background or “wallpaper.” (Derison Dep., p. 65). In 2005, computers were only accessible to students at Seaford High School in the library and computer labs., (Ragon Dep., pp. 26-27; Conboy Dep., p. 78), and there were approximately twelve (12) computers in the library and twenty (20) to thirty (30) computers in each of the computer labs. (Ragon Dep., p. 27; Conboy Dep., pp. 79, 88; Derison, pp. 54-55). In order to use the computers in the library, students were required to sign up for a computer and leave their student identification in an envelope on the computer. (Conboy Dep., p. 79). Conboy testified that in the spring of 2005, students were permitted to download materials appropriate for use in school projects to the Seaford UFSD’s computers. (Conboy Dep., pp. 77). However, Duffy testified that no one, including students, was allowed to download anything onto Seaford UFSD computers, (Duffy Dep., p. 18), and Derison testified that students were not allowed to download programs onto Seaford UFSD computers at all, although teachers and administrators “might have been able” to download, although not install, programs, (Derison Dep., pp. 65-66). Duffy also did not believe that students were permitted to upload anything onto Seaford UFSD computers. (Duffy Dep., p. 20). However, Derison testified that students were permitted to upload documents, including photographs, “sound files” and “video files”, from “floppy disks and other media” into their documents folder on Seaford UFSD computers “within the bounds of [the Seaford UFSD’s] computer policy,” i.e., they had to be “educationally appropriate,” but they were not permitted to load programs onto the computers. (Derison Dep., pp. 57-60). Derison further testified that it was possible that students could access their internet e-mail addresses from the Seaford UFSD’s computers. (Derison Dep., p. 79). B. Procedural History On November 28, 2008, plaintiff commenced this action against defendants pursuant to, inter alia, 42 U.S.C. § 1983 and state law, alleging violations of her due process rights and New York Social Services Law §§ 413 and 420, negligence, failure to supervise, negligent infliction of emotional distress and battery, and seeking compensatory and punitive damages. On April 27, 2009, plaintiff filed an amended complaint against defendants pursuant to Section 1983, Title IX and state law, alleging, inter alia, violations of her due process rights (sixth cause of action), sexual harassment (seventh cause of action), negligenee/gross negligence (second cause of action), failure to supervise (first cause of action), negligent infliction of emotional distress (third cause of action) and battery (fourth cause of action), and seeking compensatory and punitive damages in the total amount of thirty-five million dollars ($35,000,000.00), plus costs and attorney’s fees. Specifically, plaintiff alleges, inter alia, that defendants failed to immediately notify her parents of the alleged sexual abuse suffered by her on April 1, 2005 and of the subsequent harassment of her by other students at Seaford High School, and took no action to protect her from the subsequent verbal and emotional abuse about her sexual orientation and bullying that she suffered as a result of the incident. (Plaintiffs Responses to Defendants Interrogatories [Plf. Interr. Resp.], Nos. 5, 8 and 9). By order dated March 25, 2010, 2010 WL 1198055, the branches of defendants’ motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure seeking dismissal of plaintiffs claims for punitive damages and pursuant to Title IX based upon the quality of the home-schooling provided her by defendants were granted and those claims were dismissed in their entirety, and defendants’ motion was otherwise denied. Defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint. II. Discussion A. Standard of Review Summary judgment should not be granted unless “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on a summary judgment motion, the district court must first “determine whether there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotations and citations omitted); see Ricci v. DeStefano, — U.S. -, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (holding that “[o]n a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” (Emphasis added) (internal quotations and citation omitted)). “A fact is material if it ‘might affect the outcome of the suit under governing law.’ ” Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci, 129 S.Ct. at 2677 (quoting Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). If the district court determines that there is a genuine dispute as to a material fact, the court must then “resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment,” Spinelli, 579 F.3d at 166 (internal quotations and citation omitted); see also Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112, 117 (2d Cir.2010), to determine whether there is a genuine issue for trial. See Ricci, 129 S.Ct. at 2677. A genuine issue exists for summary judgment purposes “where the evidence is such that a reasonable jury could decide in the non-movant’s favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (citing Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also United Transp. Union v. National R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.2009). “The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact,” F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir.2010) (quotations and citation omitted), after which the burden shifts to the non-moving party to “come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.) see also Spinelli, 579 F.3d at 166. Thus, the nonmoving party can only defeat summary judgment “by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of’ a factual question that must be resolved at trial. Spinelli, 579 F.3d at 166 (internal quotations and citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Title IX Sexual Harassment Claim Title IX provides, in relevant part, that with exceptions not relevant here, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance * * 20 U.S.C. § 1681(a). “[S]exual harassment is a form of discrimination for Title IX purposes * * *.” Davis Next Friend LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 641-43, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). “[S]tudenton-student sexual harassment, if sufficiently severe, can likewise rise to the level of discrimination actionable under [Title IX].” Davis, 526 U.S. at 650, 119 S.Ct. 1661. A recipient of federal education funds may be liable under Title IX: (1) for deliberate indifference to student-on-student sexual harassment; (2) of which “an official of the recipient entity with authority to take corrective action” has actual knowledge, Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); and (3) “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victimfs] educational experience, that the victim-student[ ][is] effectively denied equal access to an institution’s resources and opportunities.” Davis, 526 U.S. at 650-51, 119 S.Ct. 1661. 1. Sexual Harassment Sexual orientation is not a protected class under Title VII or, similarly, under Title IX. See Kiley v. American Society for Prevention of Cruelty to Animals, 296 Fed.Appx. 107, 109 (2d Cir.2008) (summary order), cert. denied, — U.S. -, 130 S.Ct. 379, 175 L.Ed.2d 236 (2009). Thus, harassment or discrimination based upon sexual orientation is not prohibited under either Title VII or Title IX. Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir.2005); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir.2000); see also Swift v. Countrywide Home Loans, Inc., 770 F.Supp.2d 483, 488, 2011 WL 924010, at *3 (E.D.N.Y. Mar. 4, 2011) (holding that Title YII “provides no remedy for discrimination based upon sexual orientation.”) Plaintiff is alleging harassment and discrimination based upon a sexual incident between herself and another female. Specifically, plaintiffs claims are based upon students calling her such names as “lesbian” and “carpet-muneher,” (Plf. Dep., pp. 120, 122; Lisa Dep., pp. 192, 250), and teasing her about the April 1, 2005 sexual encounter between herself and another female. Thus, plaintiffs sexual harassment claim is based upon her perceived lesbianism and/or bisexuality, not upon her gender. Nor does plaintiff allege a gender stereotyping claim, see, e.g. Kiley, 296 Fed.Appx. at 109 (“[A] plaintiff may not use a gender stereotyping claim to bootstrap protection for sexual orientation into Title VII.” (internal quotations and citation omitted)); i.e., that she was discriminated against because she “fail[ed] or refuse[d] to comply with socially accepted gender roles * * Dawson, 398 F.3d at 218; see also Swift, 770 F.Supp.2d at 488, 2011 WL 924010, at *3 (holding that gender stereotyping claims generally allege that the plaintiff was “subjected] to discrimination because his or her conduct fail[ed] to ‘conform to gender norms.’ ” (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 251-52, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (superceded by statute on other grounds))). Accordingly, plaintiff cannot establish a Title IX sexual harassment claim as a matter of law. See, e.g. Dawson, 398 F.3d at 217-18 (“[T]o the extent that [the plaintiff] is alleging discrimination based upon her lesbianism, [she] cannot satisfy the first element of a prima facie cause under Title VII because the statute does not recognize homosexuals as a protected class.”); Kiley, 296 Fed.Appx. at 109 (holding that the plaintiff could not bring a claim under Title VII for discrimination based on sexual orientation); Swift, 770 F.Supp.2d at 488, 2011 WL 924010, at *4 (dismissing plaintiffs gender stereotyping claims as an impermissible attempt to bootstrap a sexual orientation discrimination claim into a Title VII claim). 2. Actual Notice In any event, the undisputed evidence in the record demonstrates that defendants did not have actual notice of any alleged sexual harassment of plaintiff by her peers. “For an educational facility to be liable [under Title IX], * * * the plaintiff must establish that a school official with ‘authority to address the alleged discrimination and to institute corrective measures’ had ‘actual knowledge’ of the discrimination and failed to adequately respond.” Papelino v. Albany College of Pharmacy of Union University, 633 F.3d 81, 88-89 (2d Cir.2011) (quoting Gebser, 524 U.S. at 290, 118 S.Ct. 1989). “Requiring actual, as opposed to constructive, knowledge [of the alleged sexual harassment] imposes a greater evidentiary burden on a Title IX claimant [than a Title VII claimant].” Hayut v. State University of New York, 352 F.3d 733, 750 (2d Cir.2003); see also Abramova v. Albert Einstein College of Medicine of Yeshiva University, 278 Fed.Appx. 30, 31 (2d Cir.2008). Other than Sussman, who only saw the pictures of the April 1, 2005 incident on one (1) occasion when she accessed the website on which they were displayed from her office computer, (Sussman Dep., pp. 76-81), there is no evidence that any other defendant or employee