Estate of D.B. v. Thousand Islands Cent. Sch. Dist. (327 F. Supp. 3d 477, 2018)

GLENN T. SUDDABY, Chief United States District Judge

Currently before the Court, in this civil rights action filed by the Estate of D.B. by its administrator Amy Briggs ("Plaintiff") against the Thousand Islands Central School District (the "District"), the Thousand Islands Central School District Board of Education (the "Board"), Frank House Superintendent of Schools in his individual capacity, John P. Warneck President of the Board in his individual capacity, and Joseph Gilfus Thousand Island High School Principal in his individual capacity (collectively "Defendants"), are (1) Defendants' motion to strike the deposition testimony of Defendant Joseph Gilfus and Defendant John P. Warneck pursuant to Fed. R. Civ. P. 32(b) (Dkt. No. 177), and (2) Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 179). For the reasons set forth below, Defendants' motion to strike is denied as moot, and their motion for summary judgment is granted.

TABLE OF CONTENTS

I. RELEVANT BACKGROUND ... 482

A. Plaintiff's Claims ... 482

B. Statement of Undisputed Material Facts ... 483

C. Parties' Briefing on Defendants' Motion to Strike Deposition Testimony ... 521

D. Parties' Briefing on Defendants' Motion for Summary Judgment ... 522

1. Defendants' Memorandum of Law-in-Chief ... 522

2. Plaintiff's Opposition Memorandum of Law ... 522

3. Defendants' Reply Memorandum of Law ... 524

E. Parties' Briefing on Defendants' Motion to Strike "Plaintiff's Response to Defendants' Statement of Material Facts" ... 525

II. GOVERNING LEGAL STANDARD ... 525

III. ANALYSIS ... 527

A. Motion to Strike Deposition Testimony ... 527

B. Motion for Summary Judgment ... 527

1. Counts One, Two, and Three (Federal Claims Based on Disability Bias Discrimination) ... 527

2. Counts Four and Five (Federal Claims Based on Sex/Gender Discrimination) ... 529

3. Counts Six and Seven (State Claims) ... 532

C. Motion to Strike Plaintiff's Response to Defendants' Statement of Material Facts ... 532

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Second Amended Complaint alleges as follows. (Dkt. No. 28.)

D.B. was a sixteen-year-old eleventh-grade student at Thousand Islands High School in the District before he died on March 3, 2014. (Id. ) For years before his death, other students would verbally harass, threaten and bully D.B., and be physically violent towards him, due to his disability, his failure to conform to gender stereotypes, his family's perceived economic status, the way he dressed, the music he listened to, and the hobbies he enjoyed. (Id. ) The harassment and bullying intensified over the years, particularly by a group of repeat offenders, who had been allowed, through the school administration's passive approach and inaction, to engage in constant bullying without effective discipline. (Id. ) More specifically, on several occasions, other students harassed, bullied, and/or physically assaulted D.B. (Id. ) Despite repeated notice by D.B. and his family to Defendants about the harassment and the effect that it had on D.B., Defendants did very little, if anything, and were ineffective at ensuring D.B. was educated without fearing for his safety and emotional well-being. (Id. ) Defendants failed to follow their own established procedures for handling and investigating complaints and for disciplining students involved in harassment. (Id. ) The repeated bullying and harassment, accompanied by anti-gay and gender-related slurs, caused D.B. to commit suicide on March 3, 2014, in his bedroom, with a shotgun. (Id. )

Generally, based on these factual allegations, the Second Amended Complaint asserts the following seven claims: (1) a claim of disability discrimination pursuant to § 504 of the Rehabilitation Act against the District and the Board ("Count One"); (2) a claim of disability discrimination pursuant to Title II of the Americans with Disabilities Act ("ADA") against the District and the Board ("Count Two"); (3) a claim of disability discrimination pursuant to 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution against the District, the Board, and Joseph Gilfus ("Count Three"); (4) a claim of sex discrimination for failing to conform to gender stereotypes pursuant to 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution against the District, the Board, and Joseph Gilfus ("Count Four"); (5) a claim of sex discrimination for failing to conform to gender stereotypes pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et. seq., against the District and the Board ("Count Five"); (6) a claim of negligent supervision against the District and the Board ("Count Six"); and (7) a claim of negligent infliction of emotional distress against Defendants ("Count Seven"). (Id. ) As relief, Plaintiff seeks compensatory and punitive damages. (Id. )

B. Statement of Undisputed Material Facts

Unless otherwise noted, the following facts were asserted and supported by Defendants in their Rule 7.1 Statement and not successfully denied by Plaintiff in a Rule 7.1 Response that both matched the paragraphs of Defendants' Rule 7.1 Statement and specifically cited the record where the factual issue arises, as required by Local Rule 7.1(c) of the Local Rules of Practice for this Court. (Compare Dkt. No. 179, Attach. 19 [Defs.' Rule 7.1 Statement] with Dkt. No. 189, Attach. 7 [Plf.'s Rule 7.1 Response].)

The Parties

1. D.B. was a minor student of the District from 2002 until March 3, 2014, and a member of the class slated to graduate in June, 2015. D.B. committed suicide at home in his bedroom on March 3, 2014.

2. D.B. played modified football at the District in ninth grade for one season, and varsity football for a period during his junior year.

3. Amy Briggs is the mother of D.B. and the administratrix of his estate.

4. The District is a public Central School District located in Jefferson County, New York.

5. The Board is the board of education of the District.

6. Defendant House was the superintendent of schools for the District from July 1, 2012, to December 31, 2015.

7. Defendant Warneck served on the Board from 1987 to June 30, 2016 (except for a period from 2002 through 2005), and most recently was the President of the Board from July 1, 2011, to June 30, 2016.

8. Defendant Gilfus is the principal of the District's high school and has held that position since February, 2004.

D.B.'s Statements of the Issues that Caused His Emotional Distress and Suicide

9. The New York State Police recovered texts sent by D.B. on his cell phone over a period of several months leading up to his suicide. Defendants further engaged forensic consultants to recover the same texts from the cell phone so that the texts could be viewed in a conversation-by-conversation format.

10. The names "I'm cool," "randy.swag," and "3157830068," which are listed as senders or recipients of various texts and messages, were all account names or aliases of D.B.

11. D.B. also underwent therapy at various points in his life, including for a period from November, 2009 through August, 2011 with Dr. Rebecca Laufer, a psychologist.

12. Those therapy sessions covered the period from the middle of D.B.'s seventh-grade year through just before the beginning of his ninth-grade year.

13. Dr. Laufer testified that there is nothing omitted from her notes, that she felt was important to an understanding of her work with D.B.

14. During his therapy with Dr. Laufer, D.B. made many comments, including statements on multiple occasions that his mother and/or his parents were responsible for his problems, and that he hated his mother and wished she was dead.

15. Dr. Laufer concluded that D.B. "despises" his mother.

16. In fact, during the therapy, Dr. Laufer's notes indicate that "[a]t one point he stated the problem is his parents and the solution would be to kill himself.... He [D.B.] denied a plan or intent and there appeared to be a reactionary tone in his expression of this statement, which he likely knew would deeply upset his mother. This concern was explored and he did not appear at risk."

17. D.B. similarly told various of his fellow students over the years that he hated his mother and/or his parents, that he hated his home life, and that he would rather be dead than live at home.

18. In fact, D.B. claimed to Defendant Joseph Gilfus that he had suffered physical abuse at the hands of his parents, which led to Defendant Gilfus reporting D.B.'s account to Child Protective Services, which investigated the claim (including interviewing D.B.'s parents at the family home). D.B. never recanted this account.

D.B.'s Use of Antigay Slurs and Comments

19. D.B. habitually used "gay" and other slurs such as "faggot" and "queer."

20. In fact, in the texts recovered from D.B.'s phone, during the period from December 19, 2013, to March 3, 2014, he used antigay slurs nearly seventy times.

21. On February 27, 2014, the username "I'm cool" also stated his belief that homosexuals were "all fucked up and should be cooked like the Jews were" and that homosexuals' "minds r fucked up and they need to be burned in a [sic] oven."

22. In fact, upon learning that an individual with whom "I'm cool" was exchanging texts was homosexual, on February 27, 2014, the username "I'm cool" stated, "Go kill urself," "Get smoked by a fuckin bus," and "So go put a slug thro [sic] ur face and save mankind," adding, "It's Adam and Eve not Adam and Steve."

23. When asked, "Did you just say [god] fucked up?" "I'm cool" responded, "He did when he made gays."

D.B.'s Urging of Other People to Commit Suicide

24. D.B. also told people he did not like, or with whom he was engaging in an argument, to kill themselves. For example, in the three-month period from December 23, 2013, to February 27, 2014, he told at least twenty individuals by text to kill themselves: "Go kill urself," "I told my friend to kill himself," "K bye now, remember to hold ur deal and kill urself, see you in hell," "Fucking kill urself," "Tell her to kill herself, she flipped on me for sayin [sic] that to her," "Quite bein [sic] a baby and sayin [sic] oh I'm planning on it, grow some balls and jump off a fucking building," and "Ok I know what, fuck u, fuck ur gay ass friends, go fucking dip and crash fords together and try to kill urself, whatever u do, plz succeed and killing urself and all ur gay little friends."

D.B.'s History of Involvement with the Police and Treatment for Mental Illness

25. In first and second grades, D.B. received medical and counseling services from Guardino Elementary School Based Health Clinic (also known as "Viking Care Clinic").

26. D.B. received therapeutic counseling from Dr. Douglas Ort from May through September, 2009.

27. As discussed above, D.B. underwent therapy through Dr. Rebecca Laufer of Samaritan Behavioral Health Services from November 2, 2009 through August, 2011.

28. D.B. also received psychotherapy and other forms of counseling with Dr. John Savino, Dr. Jason Wise, Dr. Raymond Sleszynski, and Dr. Stephen Fitzgerald during various periods between 2010 and 2013.

29. On or about April 4, 2010, D.B.'s mother and her husband called the police when D.B. refused to get out of the family vehicle.

30. On or about September 12, 2010, D.B.'s mother and/or her husband called the police when D.B. responded to a request to pick up his room by screaming and throwing things.

31. In or about January, 2011, D.B.'s mother and/or her husband called the police with regard to undescribed conduct of D.B.

32. In or about February, 2011, D.B.'s mother and/or her husband called the police with regard to undescribed conduct of D.B.

33. On or about March 16, 2011, D.B.'s mother called the police when D.B. threw a box of crackers across the room and then pulled a telephone (or its cord) from the wall in an attempt to prevent her from calling the police. D.B. was charged with criminal mischief and received probation through August 1, 2011.

34. On or about May 20, 2011, D.B.'s mother and/or her husband called the police when D.B. became angry and slammed the door to the family home so hard it damaged the door jamb and the lock.

35. On or about August 8, 2011, D.B.'s mother called the police when D.B. had a "tantrum" and threw books because D.B.'s mother was unavailable to supervise him using a gun while hunting.

36. In or about January, 2012, D.B.'s mother and/or her husband called the police with regard to undescribed conduct of D.B.

37. D.B. was hospitalized at BryLin Hospital for mental health issues from January 27, 2012, through February 4, 2012.

38. D.B. underwent psychotherapy with Dr. Raymond Sleszynski from approximately February 20, 2012, through June 27, 2013.

39. D.B. also received psychological, therapeutic and counseling services at some time between 2008 and March, 2013 from the Children's Home of Jefferson County and Transitional Living Services Waiver Program.

40. An assessment performed by the Children's Home of Jefferson County included information provided by D.B.'s mother and her husband describing D.B.'s serious misconduct, his issues at home, his hatred for his mother and accusations that his parents abused him, and other matters. It made no reference to bullying or harassment at the District.

D.B.'s Propensities for Violence and Lying, and His Distorted Perception of Events

41. D.B.'s mother admitted that D.B. "exaggerates the extent of things over time," and "likes to have control and also play the victim." D.B.'s mother has also acknowledged that D.B. lied about incidents that occurred within the home. Dr. Laufer noted, "It often appears he tries to manipulate events so that he can try to make his parents look bad."

42. D.B.'s mother contends that D.B.'s report to Defendant Gilfus of physical abuse by his father, which led to a Child Protective Services investigation, was not truthful.

43. D.B.'s psychopharmacologist, Dr. Savino, stated his opinion that D.B. had "moved his thinking and actions into a totally out of control system," that D.B. was "absolutely convinced that all types of terrible things are perpetrated on him and that he does not do anything serious or threatening," and that D.B. "literally cannot think in a straight manner and he simply has everything distorted to the point where he truly believes that some of these horrible issues are happening to him ... [and] has a hard time seeing that he instigates them; and ... that the consequences are not nearly to the level that he sees them at."

44. Dr. Savino also found that D.B.'s "distorting borders on the paranoid and the delusional."

45. Dr. Sleszynski reached the same conclusion.

46. According to Dr. Laufer's records, D.B. was diagnosed with Mood Disorder NOS, ADHD, and Oppositional Defiant Disorder.

The District's Policies, Training Programs, Seminars, Presentations, and Prevention Efforts Respecting Bullying, Discrimination, and Harassment Prior to D.B.'s Death

47. Students entering the high school receive a student agenda/handbook that includes an age-appropriate summary of the Code of Conduct.

48. In order to graduate, each student within the District must undergo education regarding civic values, cultural/social differences, and developing tolerance and respect for others, as well as how diversity in American social institutions, traditions, and values has contributed to a unique national heritage. This instruction is primarily provided in English, Social Studies, and Health classes.

49. Every year, the guidance counselors every year conduct a program in the elementary schools stressing tolerance and mutual respect.

50. The various schools in the District each have a "Building Planning Team" that performs various services, including regular surveys on topics including bullying and harassment.

51. The Building Planning Team survey results are used to generate "Building Action Plans" on an annual basis.

52. Each year the middle school guidance counselors put on a "Bullying Prevention Program" for the students in sixth grade.

53. Beginning on or about 2008, the District introduced Rachel's Challenge, an anti-bullying and anti-violence program.

54. Activities relating to Rachel's Challenge and posters concerning its message continued through the following years, including at least through the 2011-2012 school year.

55. The elementary schools of the District require students to participate in Developmental Guidance classes that focus on bullying, conflict resolution, empathy, personal safety, and safety in general.

56. The elementary schools also implement lessons from "The Great Body Shop" curriculum that include bullying and empathy topics.

57. During the 2011-2012 school year, the New York State Police conducted a workshop in the middle school concerning bullying.

58. In 2010 and 2013, Jared Campbell conducted an assembly at the middle school and high school that included anti-bullying messages.

59. Defendant Warneck took a course on the requirements of the Dignity for All Students Act ("DASA") at the Fulton-Hamilton-Montgomery BOCES, and also watched a one-hour state-produced webinar on the topic, in 2012.

60. Because Defendant Warneck and his colleagues in the area felt the state webinar was inadequate, they developed their own, two-hour webinar presentation for the administrators in their school districts on the subject of DASA.

61. The District's administrators underwent DASA training in August and September, 2012.

62. Defendant House, the District's superintendent of schools, attended a seminar called "Protect Your Students from Bullying, Harassment and Violence" on August 8, 2013.

63. Defendant House gave DASA presentations to the Board two to three times between 2012 and 2013.

64. In Fall, 2013, the Board and Defendant House communicated with Captain Timothy Patterson concerning a possible presentation concerning discrimination and harassment. The Board requested the presentation for early 2014, but Captain Patterson's military service did not permit him to perform the presentation until after D.B.'s death.

65. The District was also working to transition in the "Sources of Strength" suicide and bullying prevention program in 2013-2014 prior to D.B.'s death.

The District Employees Who Had Authority to Correct and Deter Bullying and Harassment

66. At the District, the principal of each individual school had authority to administer discipline to students.

67. School-wide presentations and programs were subject to the approval of the principals.

68. District-wide presentations and programs were subject to the approval of the District's Board of Education and the superintendent of schools.

69. Bus drivers, studyhall monitors, hall monitors, guidance counselors, and individual faculty members such as teachers did not have authority to impose discipline, and had to submit referrals to the appropriate principal for determination of disciplinary matters.

The General Absence of Physical or Serious Bullying at the District

70. D.B.'s fellow students T.C., K.K., and K.D. did not witness much bullying going on at the District.

71. A.B. testified that discipline was "somewhat strict" at the District and he did not see a lot of bullying or harassment at the District with the exception of bullying of D.B.

72. J.R. similarly testified discipline was "pretty strict" at the District and he did not see a lot of bullying.

73. To the extent that these students allegedly utilized antigay slurs amongst themselves, (whether directed at D.B. or at each other), they were careful to do so out of the presence or hearing of school district employees.

74. When used by these students, words like "gay" and "faggot" were used as synonyms for "stupid."

75. When discussing students' use of the term "gay," R.M. testified that "anytime that someone was actual homosexual, they didn't ever use it as an insult. It was always the nicest - they were always the nicest possible to them and most respectful to them in that way. If that person, if someone was straight, like if they knew someone was straight or thought they were straight or whatnot, they used it as an insult."

The Absence of Reports of Discrimination-Based Bullying or Harassment of D.B.

76. Prior to D.B.'s death, Defendant Gilfus never received any report or otherwise knew that D.B. was being harassed or bullied on the basis of any protected characteristic, or that D.B. had been called an antigay slur, a slur relating to gender stereotyping, or a slur relating to disability bias at the high school or on the school bus (with the exception of one disproved report concerning the January 2013 A.M. Bus Incident).

77. Defendant House never even heard D.B.'s name prior to D.B.'s death, and had no knowledge or report of D.B. being harassed or bullied on the basis of any protected characteristic, or that D.B. had been called an antigay slur, a slur relating to gender stereotyping, or a slur relating to disability bias.

78. Defendant Warneck never heard D.B.'s name prior to D.B.'s death, and had no knowledge or report of D.B. being harassed or bullied on the basis of any protected characteristic, or that D.B. had been called an antigay slur or a slur relating to gender stereotyping or disability bias.

79. Six of D.B.'s fellow students and friends (K.S., T.C., S.S., M.M., K.K., and K.M.) did not know of D.B. experiencing any bullying or harassment.

80. Although D.B.'s mother sent several e-mail communications to the principal and the superintendent of schools concerning alleged bullying or harassment of D.B., none made reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

81. D.B., his mother, and his father met with the then-superintendent of schools, Joseph Menard, on or about May 20, 2012, to discuss the issues between D.B. and B.B., and recorded the conversation. During the meeting there was not even a single reference to discrimination, disability bias, gender bias, gender stereotyping bias, or slurs reflecting any of the foregoing.

82. Further, D.B.'s mother drafted a "history" of the alleged friction between D.B. and B.B.

83. D.B.'s mother herself only heard (via hearsay) that D.B. had been called "gay" on one occasion.

84. The one occasion was when D.B. claimed a fellow student, A.M., had called the music D.B. was listening to "gay." The sole admissible evidence, however, is that no such comment was made.

85. D.B.'s mother and father admitted in their depositions that they did not recall whether they or D.B. ever verbally told Defendant Gilfus that D.B. was being called antigay slurs.

86. D.B.'s mother admitted in her deposition that she did not recall whether she, her husband, or D.B. ever told told Defendant Gilfus that D.B. had been subjected to any comment regarding disability, except for the possible hearsay claim set forth below in ¶ 87.

87. D.B.'s mother claimed D.B. told Defendant Gilfus that T.M. had told him to "go back to your doctor." However, she did not clarify whether D.B. made this report in her presence or whether she was relying on hearsay from D.B. that he had made such a report to Defendant Gilfus.

88. The sole admissible evidence regarding whether the underlying comment ("go back to your doctor") was actually made or not is T.M.'s denial that he made the comment.

89. There is no non-hearsay evidence that T.M. actually made the comment that was the subject of the alleged report.

D.B. Was Not Subjected to Gender Stereotyping, and Was Not Believed to Be Disabled

90. D.B.'s fellow students, including the students D.B.'s mother accuse of bullying and harassing D.B., did not view him as acting in non-stereotypically-male ways or as disabled.

91. Plaintiff claimed in its Complaint that D.B. "fail[ed] to conform to gender stereotypes" and "was never accepted for who he was or what he enjoyed (i.e. gaming, type of music, clothes he wore)."

92. However, in discovery, Plaintiff provided the following purported basis for those claims:

D.B. wore a lot of earth toned and camouflaged clothing. He wore t-shirts and sweatshirts from brands such as Gander Mountain, a brand not often worn by the majority of his peers. He was often called "welfare" for the clothes he wore, the Iphone 4 he owned and his Beats Headphones. D.B. listened to music genres such as country, hard rock and "screamo." He enjoyed hobbies such as trapping and hunting. The way he dressed, his hobbies, and the music he listened to were completely adverse [sic] to his fellow male classmates.

93. D.B.'s "disability" was depression, oppositional defiant disorder, and mood disorder.

The Alleged Texts of Antigay/Gender Stereotyping Slurs and Insults Not Involving the District

94. Plaintiff alleged that a large number of slurs and offensive comments were directed at D.B. via text messages received on his cell phone; but almost all of these allegations pertained to texts received outside school hours from individuals with no apparent connection to the District (and who in most cases were apparently not even located in New York State).

95. Plaintiff alleges that D.B. received a text stating, "Oh, and based on having to deal with your stupidity, if I was locked in a room with living Adolf Hitler, living Osama bin Laden, and you, I'd shoot you twice."

96. The text was received on February 25, 2014, at 8:44 p.m., outside school hours.

97. D.B.'s mother has no information as to who the text is from or whether the sender attended school in the District.

98. The text is presented as coming from a phone number with a 330 area code.

99. The 330 is the area code assigned to the Akron, Ohio area.

100. Plaintiff alleges that D.B. received a text stating, "They all hate u for one two your [sic] note [sic] funny and three your [sic] a queer."

101. The text was received on February 2, 2014, at 1:52 a.m., outside school hours.

102. The text was from an individual presented as "That_Bear99."

103. D.B.'s mother has no information that "That_Bear99" attended school in the District.

104. "That_Bear99" is identified as a Garrett Groves.

105. D.B.'s mother does not know a Garrett Groves.

106. No one named Garrett Groves was a student in the District.

107. In a subsequent text, D.B. referred to the text as being part of an exchange between him and children from southern states who did not go to school with him.

108. Plaintiff alleges that D.B. received a text stating, "What the fuck do u want u fuckig [sic] queer."

109. The text was from the same individual presented as "That_Bear99."

110. The text was received outside school hours.

111. Plaintiff alleges that D.B. received a text stating, "No don't talk to me later. I'm not fucking telling you you [sic] fucking queer!"

112. The text was received outside school hours.

113. The text was from an individual presented as "Angel_Poop."

114. D.B.'s mother has no information that "Angel_Poop" attended school in the District.

115. "Angel_Poop" is identified as an Angel Velazquez.

116. D.B.'s mother does not know an Angel Velazquez.

117. No one named Angel Velazquez was attending school in the District at that time.

118. Plaintiff alleges that D.B. received a text stating, "U r very gay."

119. D.B.'s mother does not know who sent the text.

120. Plaintiff alleges that D.B. received a text stating, "You fucking homo."

121. The text was sent on January 31, 2014, at 7:28 p.m., outside school hours.

122. The text was from an individual presented as "Rebel76er."

123. D.B.'s mother has no information that "Rebel76er" attended school in the District.

124. "Rebel76er" is identified as a Lonnie Yancey.

125. D.B.'s mother does not know a Lonnie Yancey.

126. No one named Lonnie Yancey was ever a student of the District.

127. In a subsequent text, D.B. referred to the text as being part of an exchange between him and children from southern states who did not go to school with him.

128. Plaintiff alleges that D.B. received a text stating, "Hey bitch your [sic] such a waist [sic] of a life you are worthless cunt [sic] ass bitch and go fuck your mom in the ass and I'm gay shit at least I don't fuck the animals that you kill and you can go fuck off she doesn't want anything to do with you because you're a gay faggot cunt bitch you little prick go fall in your moms [sic] ass hole and die faggot ass bitch [sic]."

129. The text was received on January 31, 2014, at 7:26 p.m., outside school hours.

130. In a subsequent text, D.B. referred to the text as being part of an exchange between him and children from southern states who did not go to school with him.

The Alleged Incident in Elementary School: The 2004 Mellon Comment

131. D.B. attended elementary school (Kindergarten through fifth grade) in the District from 2002 to 2008.

132. Plaintiff alleges a teacher, Mrs. Mellon, made a derogatory comment to D.B. in October of 2004 (when D.B. was in second grade) (the "2004 Mellon Comment").

133. The alleged derogatory comment was that he needed to be "smarter than a wall."

134. The alleged 2004 Mellon Comment occurred approximately six years before 2010, when D.B. was first diagnosed with various disorders and a Committee on Special Education meeting was first held regarding him.

The Alleged Incidents in Middle School

135. D.B. attended middle school (sixth through eighth grades) in the District from 2008 to 2011, except for a brief period in which he transferred out of the District and then transferred back in.

The March 2009 Shoving Incident

136. Plaintiff alleges that B.B. and D.B. "were involved in a shoving match in the boys' bathroom" (the "March 2009 Shoving Incident").

137. D.B.'s mother's sole sources of the alleged details of the March 2009 Shoving Incident are her hearsay account of what D.B. supposedly said happened, and her multiple hearsay account of what Deborah Percy, the middle school principal, said that D.B. and B.B. told her.

138. In the March 2009 Shoving Incident, it was D.B. who actually started a shoving match with a fellow student, B.B. B.B.'s puppy had recently been hit by a car and killed. In the bathroom, D.B. stated he was glad B.B.'s dog had died, and he shoved B.B. B.B. became angry and shoved D.B. back.

139. The March 2009 Shoving Incident had nothing to do with D.B.'s alleged disability or with gender stereotyping.

140. When D.B.'s mother spoke to B.B.'s mother on the night of the March 2009 Shoving Incident, B.B.'s mother told her that D.B. had said to B.B. "that he was glad [B.B.'s] puppy Bella had gotten killed by a car." D.B.'s mother further explained that D.B. was "always trying to 'one up' you, always needing to have the last word, and always having to hit you the hardest with his words."

141. D.B. and B.B. each were assigned one day of detention for the March 2009 Shoving Incident.

Alleged Incident 1

142. Plaintiff alleges that, while D.B. was in middle school, a fellow student, B.S., forced him to lick the bus window and slapped him in the stomach twice ("Alleged Incident 1").

143. Plaintiff's sole sources of information about Alleged Incident 1 are D.B.'s mother's hearsay account of what D.B. supposedly said happened and Joseph Hughes' multiple hearsay account.

144. D.B.'s mother testified that her basis for claiming Alleged Incident 1 was the product of gender stereotyping or disability bias is that B.S. supposedly asked D.B. for a cigarette during the incident, instead of asking girls in the vicinity.

145. Plaintiff has offered no evidence suggesting that B.S. viewed D.B. as more likely to have a cigarette than a girl because D.B. was a boy.

146. B.S. left the District when D.B. was still in middle school.

147. There were no further issues reported between D.B. and B.S.

Alleged Incident 2

148. Plaintiff alleges B.B. engaged in a course of harassing conduct involving D.B.'s locker and antigay and gender-related slurs while he and D.B. were in middle school ("Alleged Incident 2").

149. Plaintiff's sole source of information concerning Alleged Incident 2 is D.B.'s mother's hearsay account of what D.B. supposedly said happened.

150. D.B.'s mother presented a purported summary of the history between D.B. and B.B. to Ms. Percy.

151. D.B.'s mother's purported summary of the history suggested that any issues between D.B. and B.B.

did not relate to gender stereotyping or disability bias.

152. Nevertheless, the middle school principal, Ms. Percy, arranged for D.B.'s locker to be moved away from B.B.'s locker.

Alleged Incident 3

153. Plaintiff alleges that in Spring, 2011, a fellow student, N.B., bullied D.B. ("Alleged Incident 3").

154. Plaintiff's sole sources of information concerning Alleged Incident 3 are D.B.'s mother's hearsay account of what D.B. supposedly said happened, and her hearsay account of what her other son, M.B., supposedly said happened on the bus.

155. M.B. denied knowing who N.B. is and denied knowing if N.B. rode the bus with him and D.B.

156. D.B.'s mother does not remember if D.B. ever reported that N.B. made any reference to D.B.'s disability or gender stereotyping in Spring, 2011.

The Alleged Incidents in High School

157. D.B. attended high school (ninth through twelfth grade) in the District from 2011 until his death on March 3, 2014, during his junior year.

The Dog Abuse Rumor

158. Plaintiff alleges that fellow students spread a rumor that D.B. was engaging in sexual conduct with his dogs (the "Dog Abuse Rumor").

159. D.B.'s mother alleges that, to her knowledge, this alleged rumor was what D.B. was referring to when he said people were spreading "stupid gay rumours [sic]" about him.

160. Plaintiff has no evidence that the Dog Abuse Rumor had anything to do with gender stereotyping or disability bias, and cannot even explain how it could involve gender stereotyping or disability bias.

The May 2012 Lunch Incident

161. On or about May 16, 2012, D.B. wrote a note, which he had a third student, W.W., deliver to B.B. The note called B.B. a "little pussy," referred to B.B.'s "little chicken arms," and challenged B.B. to meet D.B. in the boys' bathroom. B.B. did not do so.

162. On May 17, 2012, D.B. initiated an encounter with B.B. (the "May 2012 Lunch Incident"). D.B. got up from the table he was sitting at during lunch, walked over to the table where B.B. was sitting, and sat next to B.B. D.B. again invited B.B. to fight. B.B. said that, if D.B. wanted to fight, they could meet at a location outside the school, and that, if they did fight, he would "kick [D.B.'s] ass" or words to that effect.

163. A videorecording of the May 2012 Lunch Incident exists.

164. Plaintiff alleges that, during the May 2012 Lunch Incident, B.B. "approached [D.B.] during lunch time and started shouting," and that B.B. "made an aggressive lunging motion toward [D.B.] and told [D.B.] he was going to 'kick the shit' out of him."

165. The videorecording of the May 2012 Lunch Incident shows D.B. walking over to sit down next to B.B. and engage him in conversation.

166. The videorecording of the May 2012 Lunch Incident shows that B.B. did not approach D.B.

167. The videorecording of the May 2012 Lunch Incident shows that B.B. did not make "an aggressive lunging motion" toward D.B.

168. The videorecording of the May 2012 Lunch Incident does not record B.B. as saying he was going to "kick the shit" out of D.B.

169. B.B. did not initiate the encounter and it was D.B. who first suggested the two boys should fight.

170. Plaintiff has no evidence that the May 2012 Lunch Incident had anything to do with gender stereotyping or disability bias.

171. Defendant Gilfus counseled D.B. and B.B. not to engage in conflict with each other or to bother each other.

The June 2012 Pencil Lead Incident

172. D.B. reported to Deborah Eldridge-Block that on June 1, 2012, several pieces of pencil lead landed on his shoulder, in his hair, and on the paper on his desk during a practice Regents Examination (the "June 2012 Pencil Lead Incident"). He stated that he did not know who had thrown the lead pieces but that he believed it was B.B.

173. The District's investigation showed that B.B. and another student, A.B., were throwing small objects back and forth at each other, not at D.B.

174. B.B. and A.B. had no intention of hitting D.B. with anything.

175. Plaintiff alleges that, during the June 2012 Pencil Lead Incident, B.B. threw things intending to hit D.B.

176. Plaintiff's sole information regarding the June 2012 Pencil Lead Incident is D.B.'s mother's hearsay account of what D.B. supposedly said happened.

177. Defendant Gilfus directed all faculty working with D.B. and B.B. that the two boys were to be on opposite sides of the room during testing at all times.

178. He also requested that the school guidance counselor, Ms. Nevala, make sure D.B. and B.B. were not scheduled in any periods together for the remainder of their high school careers.

179. B.B. and D.B. did not have classes together again after that.

180. B.B.'s locker was also moved away from D.B.'s locker, and their lockers were never next to each other again.

181. D.B. passed the actual examination for which he had been taking a practice exam during the June 2012 Pencil Lead Incident.

The June 2012 Gum Wrapper Incident

182. On or about June 7, 2012, a fellow student, T.M., threw a gum wrapper to get D.B.'s attention (the "June 2012 Gum Wrapper Incident"). He later wrote a note explaining that he had simply been trying to get D.B.'s attention.

183. Plaintiff has no evidence that the June 2012 Gum Wrapper Incident had anything to do with disability bias.

184. Plaintiff alleges that, during the June 2012 Gum Wrapper Incident, T.M. and other students, including B.B., told D.B. he was "too much of a 'pussy' to kill himself."

185. D.B.'s mother, however, admits she has no basis to believe that statement occurred and that the Complaint is simply incorrect in alleging that it did.

186. No such comment was in fact made during this incident.

187. Plaintiff's Complaint also alleges that, during the June 2012 Gum Wrapper Incident, students called D.B. "gay."

188. Plaintiff's sole information that a student called D.B. "gay" during the June 2012 Gum Wrapper Incident is D.B.'s mother's hearsay account of what D.B. supposedly said happened.

189. The alleged use of the term "gay" was not reported to the District in connection with the June 2012 Gum Wrapper Incident.

The September 2012 Hair Spray Incident

190. In September, 2012, a fellow student, H.S., was disciplined for spraying hair spray that got in D.B.'s eyes (the "September 2012 Hair Spray Incident").

191. There is no evidence that the September 2012 Hair Spray Incident had anything to do with gender stereotyping or disability bias, or that it was even misconduct intentionally directed at D.B.

192. Nevertheless, Defendant Gilfus gave H.S. two days of detention for "Dangerous/Reckless Behavior."

193. There were no further issues reported between H.S. and D.B.

The December 2012 Binder Incident

194. In December, 2012, an incident occurred involving D.B. and a fellow student, S.S. (the "December 2012 Binder Incident"). During a class, D.B. reached over and smeared S.S.'s notes with his hand. S.S. took D.B.'s pencil, but gave it back, warning D.B. not to smear his notes again. D.B. nevertheless did it again. S.S. then took D.B.'s pencil and broke it. When they stood up to leave at the end of the period, D.B. took S.S.'s binder. S.S. demanded the binder back, but D.B. refused. As a result, S.S. pushed him. He then followed D.B. down the hall and down the stairs to D.B.'s locker, demanding the return of the binder, but did not push D.B. again. D.B. punched S.S. in the face, knocking his glasses off. S.S. picked up his glasses and left.

195. Plaintiff's sole information regarding the December 2012 Binder Incident is D.B.'s mother's hearsay account of what D.B. supposedly said happened.

196. There is no evidence that the December 2012 Binder Incident had anything to do with gender stereotyping or disability discrimination.

197. No report of the December 2012 Binder Incident was made until months later.

198. Defendant Gilfus investigated the matter when it was brought to his attention, by interviewing D.B. and S.S. He concluded D.B. was the aggressor and instigator. However, because the incident had happened so long before the report came to him, he determined not to impose discipline.

The January 2013 A.M. Bus Incident

199. On January 25, 2013, an incident occurred involving D.B. and a fellow student, A.M. (the "January 2013 A.M. Bus Incident"). D.B. was on the school bus with his headphones down around his neck and music playing so loud the other students on the bus could hear it. A fellow student, A.M., asked D.B. to turn the music down. D.B. refused. A.M. began sending a text on his phone, at which point D.B., kicked the phone out of A.M.'s hands. A.M. reached for D.B.'s headphones in retaliation, and D.B. reared back in his seat and kicked A.M. in the face, giving A.M. a bloody nose.

200. D.B. himself stated in a text that A.M. "punched my beats [headphones] cause [sic] I kicked his phone" and that after he struck A.M., "he was bleeding everywhere."

201. When D.B. reared back in his seat to kick A.M., his headphones fell off his neck and hit the bus floor, cracking the band.

202. Plaintiff alleges that the January 2013 A.M. Bus Incident involved A.M. "bullying" D.B. on the school bus. In particular, Plaintiff alleges that A.M. called D.B.'s music "gay" and that D.B. kicked A.M.

because A.M. had his fist cocked back to punch D.B.

203. A.M. did not call D.B.'s music "gay" and did not make a fist at any point.

204. Plaintiff's sole information concerning the January 2013 A.M. Bus Incident is D.B.'s mother's hearsay accounts of what D.B. and M.B. supposedly said happened, as well as her hearsay accounts of hearsay accounts relayed by two non-witnesses to the events (i.e., Mr. Gilfus and the District's transportation director).

205. When M.B. testified at deposition, he recited what he heard in the verbal exchange between A.M. and D.B., which did not include any antigay slurs or even any insults, and he confirmed that he had described in his testimony everything he remembered hearing the two boys say.

206. The sole non-hearsay evidence-A.M.'s, M.B.'s, and M.H.'s sworn accounts-is that A.M. did not, in fact, use the term "gay" during the January 2013 A.M. Bus Incident.

207. Further, when M.B. testified at his deposition, he described A.M. as reaching for D.B.'s headphones, not trying to punch D.B., and admitted that he did not remember whether A.M.'s hand was open or closed.

208. There is no admissible evidence establishing that the January 2013 A.M. Bus Incident had anything to do with gender stereotyping or disability bias; Plaintiff's claim that it did is based not merely on hearsay but on hearsay not supported by the actual witnesses.

209. Based on his investigation, which included interviews of students who were present on the bus, Defendant Gilfus concluded that Plaintiff's allegation that this incident was motivated by gender stereotyping was unfounded.

210. D.B. received two days' detention for the January 2013 A.M. Bus Incident.

211. Defendant Gilfus also counseled the two boys regarding the January 2013 A.M. Bus Incident.

The January 2013 A.M. Threat Incident

212. As A.M. left the bus with a bloody nose, he promised D.B. that he would "get" D.B. at a future time. He later reiterated his intent to retaliate against D.B. during a conversation with Defendant Gilfus (the "January 2013 A.M. Threat Incident").

213. Defendant Gilfus counseled A.M. against any retaliation for D.B. kicking him in the face and giving him a bloody nose.

214. A.M. did not retaliate against D.B.

215. There were no further incidents between D.B. and A.M.

Alleged Incident 4

216. After the A.M. Bus Incident, D.B.'s headphones had a crack in the band that went over the wearer's head.

217. The headphones would still carry music and would still stay on D.B.'s head or neck despite the crack.

218. Plaintiff alleges that N.B. told D.B. that his headphones weren't really broken ("Alleged Incident 4").

219. Plaintiff alleges that, by supposedly telling D.B. his headphones weren't really broken, N.B. "verbally harassed" D.B. regarding "the type of headphones D.B. owns."

220. Plaintiff's sole information concerning Alleged Incident 4 is D.B.'s mother's hearsay account of what D.B. supposedly said happened.

Alleged Incident 5

221. Plaintiff alleges that on January 28, 2013, a fellow student, M.H., threw various items at D.B. on the school bus "[i]n retaliation for the bus incident between [D.B.] and A.M." ("Alleged Incident 5").

222. M.H. did not throw anything at D.B. on the bus or otherwise.

223. Plaintiff has never advanced any non-hearsay evidence that Alleged Incident 5 occurred.

The 2013 Suicide Text Incident

224. Plaintiff alleges that, approximately a year before D.B.'s death, T.M. sent D.B. a text stating that D.B. was "too much of a pussy" to kill himself and/or that D.B. should "take one of your precious guns and do the world a favor-go kill yourself," or words to that effect (the "2013 Suicide Text Incident").

225. D.B.'s mother recalls the text as having been sent on a weekend, i.e., outside of school hours.

226. M.M.2 also claimed that, D.B. showed her a text sent at some point, by T.M. stating that D.B. should "take one of your precious guns and kill yourself."

227. No such text appears either in the Cellebrite Text Report prepared by the New York State Police or in the report prepared by Kessler International.

228. M.M.2 did not report this incident to any staff member or teacher and did not witness anyone report it.

229. The 2013 Suicide Text Incident was not reported to the District.

230. The District had no knowledge of the alleged 2013 Suicide Text Incident prior to D.B.'s death.

Alleged Incident 6

231. Plaintiff alleges that, approximately a year before D.B.'s death, an unidentified fellow student or students told him he was a "psycho" and/or that he needed to "go see a shrink," or words to that effect ("Alleged Incident 6").

232. In separate testimony, D.B.'s mother claimed D.B. said T.M. told him he needs to "go back to your doctor" comment.

233. Plaintiff's sole information concerning Alleged Incident 6 is D.B.'s mother's hearsay account of what D.B. supposedly said happened.

234. Alleged Incident 6 was never reported to the District by D.B. or anyone else.

235. The District had no knowledge of Alleged Incident 6 prior to the filing of the Complaint.

The March 2013 N.B. Orange Peel Incident

236. Plaintiff alleges that in March, 2013, N.B. was throwing orange peels at D.B. in the lunchroom, when some of the orange peels hit T.M. N.B. stated, "Sorry, T.M., I meant to hit [D.B.]." D.B. was actually hit by the orange peels.

237. Plaintiff's sole information that N.B. was trying to hit D.B. (rather than T.M., the student he actually hit) during the March 2013 N.B. Orange Peel Incident is D.B.'s mother's hearsay account of what D.B. supposedly said happened, and her hearsay account of Defendant Gilfus' multiple hearsay account.

238. Defendant Gilfus interviewed N.B., T.M., and D.B., and concluded that N.B. had in fact been trying to hit T.M., the student who actually was struck by the orange peel. He counseled N.B. not to throw things.

Alleged Incident 7

239. Plaintiff alleges that in March, 2013, N.B. threw items at D.B. on the school bus ("Alleged Incident 7").

240. No report was ever made that N.B. had thrown items at D.B. on the school bus.

The June 2013 Fight Incident

241. On June 11, 2013, D.B. and J.R. texted each other during the school day to arrange a fight. The texts showed it was a mutual decision to fight.

242. In fact, D.B. said in a text that J.R. "told me not to talk about him and I got pissed, set up a fight, and beat te [sic] shit out of him to where the principle [sic] jumped on me and had to hold me down."

243. On June 11, 2013, D.B. and J.R. fought outside the school near the area where the afternoon buses were waiting (the "June 2013 Fight Incident").

244. Plaintiff alleges that in the June 2013 Fight Incident, J.R. "jumped" D.B.

245. Plaintiff has no information that the June 2013 Fight Incident had anything to do with gender stereotyping or disability bias.

246. D.B. received three days' suspension, while J.R. received five days'

suspension because he was found to have tobacco on his person.

The September 2013 Neck-Poking Incident

247. On September 23, 2013, an incident occurred between D.B. and a fellow student, C.T. (the "September 2013 Neck-Poking Incident"). During lunch, D.B. poked C.T. in the neck multiple times with a pencil, without C.T. doing anything to provoke D.B. (in particular, without C.T. first talking to D.B. or even looking at him). C.T. told D.B. to stop but D.B. refused to stop. D.B. poked C.T. so hard he drew blood in two places. C.T. then punched D.B. in the face.

248. Defendant Gilfus observed a videorecording of the September 2013 Neck-Poking Incident. It showed D.B. poking C.T. in the neck with a pencil without any apparent provocation (and, in particular, without C.T. first talking to D.B. or even looking at him); C.T. telling D.B. to stop, D.B. continuing, and finally C.T. punching D.B.

249. Plaintiff alleges the September 2013 Neck-Poking Incident began when C.T. engaged in name-calling against D.B., leading to D.B. poking C.T. in the neck with a pencil, and then C.T. punching D.B.

250. Plaintiff's sole information concerning the September 2013 Neck-Poking Incident is D.B.'s mother's hearsay account of what D.B. supposedly said happened and multiple hearsay descriptions of alleged comments by Defendant Gilfus.

251. C.T. received out-of-school suspension ("OSS") for his role in the Neck-Poking Incident. However, D.B. received only in-school suspension ("ISS").

252. Plaintiff has no information suggesting the September 2013 Neck-Poking Incident had anything to do with gender stereotyping or disability bias. In particular, D.B.'s mother testified that she does not remember if D.B. ever told her that C.T. used any antigay slurs.

Alleged Incident 8

253. Plaintiff alleges that in October, 2013, C.T. resumed making comments to D.B. ("Alleged Incident 8").

254. Defendant Gilfus consulted with C.T., who advised that he had not, in fact, made any comments to D.B., and was continuing not to sit at D.B.'s table or to speak to him during lunch as instructed. There was no evidence to the contrary beside D.B.'s word that was brought to Defendant Gilfus' attention.

255. Plaintiff's sole information concerning Alleged Incident 8 is D.B.'s mother's hearsay account of what D.B. supposedly said happened.

256. There were no further incidents involving D.B. and C.T.

Alleged Incident 9

257. Plaintiff has alleged that R.J., C.B., and T.G.2 engaged in harassment or bullying of D.B. at unspecified times in high school ("Alleged Incident 9").

258. No one ever reported to Defendant Gilfus that R.J., C.B., or T.G.2 had harassed or bullied D.B.

259. Indeed, neither D.B.'s mother nor D.B.'s father identified R.J., C.B., or T.G.2 when asked to identify the students who bullied, harassed, or discriminated against D.B.

Alleged Incident 10

260. Plaintiff alleged that, "[i]n the days leading up to his death, [D.B.] was held down by a group of boys in the locker room while they took his cell phone and texted a girl, 'I'm gay' " ("Alleged Incident 10").

261. Plaintiff's sole source of information concerning Alleged Incident 10 was a multiple hearsay account from the mother of D.B.'s fellow student, K.M., who had supposedly heard the story from K.M.

262. K.M. did not actually witness any such incident; he only heard other students talking about a supposed incident in the locker room. He believes part of the story he heard involved a text being sent out, but does not recall the story being that the text was "I'm gay."

263. Although the incident supposedly occurred a day or two before D.B. died, no such text appears either in the Cellebrite Text Report or the Kessler Investigation Report.

264. Alleged Incident 10 was never reported to the District.

The Reports that Were Made by D.B.'s Mother and Her Husband Patently Did Not Suggest Harassment or Bullying Based on Gender Stereotyping, Disability, or the Perception that D.B. Was Disabled

265. Defendants, in an interrogatory, sought specificity as to what the "Briggs Family brought ... to the attention of the school" as alleged in the Second Amended Complaint, including when, to whom, and how the matter was "brought ... to the attention of the school."

266. Plaintiff listed twenty-seven instances in which issues were purportedly brought to the attention of employees or officers of the District, either verbally or in writing.

267. The first purported report concerned the 2004 Mellon Comment, as set forth above in ¶ 134, was made approximately six years before 2010, when D.B. was diagnosed with various disorders.

268. The second purported report, dated September 28, 2009, was an e-mail that contained no reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that any alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

269. The third purported report, dated September 29, 2009, concerned Alleged Incident 1.

270. There is no admissible evidence that Alleged Incident 1 occurred, and no evidence that it concerned any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

271. The fourth purported report, issued during the 2009-2010 school year, involved a discussion between D.B.'s mother and Ms. Percy of the issues between D.B. and B.B. (including the March 2009 Shoving Incident), and D.B.'s mother's submission of a document describing the conflict between the boys. D.B.'s mother admitted she did not remember if she ever described any antigay or other slurs used by B.B. in her verbal discussion with Ms. Percy.

272. D.B.'s mother's written account of the alleged "history" between D.B. and B.B. did not portray the issues between the two boys as based on a disability or perceived disability of D.B., gender discrimination, or gender stereotyping. It mentioned exactly one instance in the many-year-history that B.B.

allegedly used an antigay slur-when in middle school B.B. called D.B. a "bigger faggot than you were before" for requesting a new lock for his locker.

273. B.B. did not make the alleged comment, and there is no admissible evidence that he did.

274. The fifth purported report, dated December 22, 2009, was an e-mail objecting to D.B. being paired with B.B. for a class project. It contained no reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

275. The sixth purported report, dated January 20, 2011, was an e-mail concerning Alleged Incident 3. It contained no reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

276. The seventh purported report, dated May 17, 2012, was telephone conversations with Defendant Gilfus concerning the May 2012 Lunch Incident. The May 2012 Lunch Incident did not involve any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

277. The eighth purported report, dated May 20, 2012, was a meeting with then Superintendent of Schools Joseph Menard concerning the May 2012 Lunch Incident. It did not involve any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

278. The ninth purported report, dated May 22, 2012, was a follow-up telephone conversation with Mr. Menard concerning the May 2012 Lunch Incident. It did not involve any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

279. The tenth purported report, dated May 24, 2012, was an e-mail to Mr. Menard regarding Defendant Gilfus' "plan of action" with respect to the issues between D.B. and B.B. It did not contain any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

280. The eleventh purported report, dated May 30, 2012, was a further e-mail to Mr. Menard regarding Defendant Gilfus' plan of action. It did not contain any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

281. The twelfth purported report, dated May 31, 2012, was yet another e-mail to Mr. Menard regarding Defendant Gilfus' plan of action. It did not contain any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

282. The thirteenth purported report, dated June 3, 2012, was an e-mail concerning the June 2012 Pencil Lead Incident. The June 2012 Pencil Lead Incident did not involve, and the email did not contain any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

283. The fourteenth purported report, dated June 4, 2012, was an e-mail to Mr. Menard again concerning the June 2012 Pencil Lead Incident. It did not contain any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

284. The fifteenth purported report, dated June 10, 2012, was an e-mail to Defendant Gilfus concerning the June 2012 Gum Wrapper Incident. There is no admissible evidence that the June 2012 Gum Wrapper Incident involved, and the e-mail did not make any reference to, any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication that the alleged bullying and harassment was due to discrimination on the basis of a protected characteristic.

285. The sixteenth purported report, dated June 11, 2012, was an e-mail to Mr. Menard and Mr. Gilfus concerning the June 2012 Gum Wrapper Incident. The e-mail did not make any reference to any disability or perceived disability of D.B., gender discrimination, gender stereotyping, antigay slurs, or any other indication tha