Regina Webster v. Chesterfield County School Board, d/b/a Chesterfield County Public Schools

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1545
REGINA WEBSTER,
Plaintiff - Appellant,
v.
CHESTERFIELD COUNTY SCHOOL BOARD, d/b/a Chesterfield County Public
Schools,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:20-cv-00344-HEH)
Argued: March 8, 2022 Decided: June 28, 2022
Before GREGORY, Chief Judge, THACKER, and HARRIS, Circuit Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Thacker
and Judge Harris joined.
ARGUED: Richard F. Hawkins, III, THE HAWKINS LAW FIRM, PC, Richmond,
Virginia, for Appellant. Emily Claire Russell, COUNTY ATTORNEY’S OFFICE FOR
THE COUNTY OF CHESTERFIELD, Chesterfield, Virginia, for Appellee. ON BRIEF:
Jeffrey L. Mincks, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF
CHESTERFIELD, Chesterfield, Virginia, for Appellee.

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GREGORY, Chief Judge:
This appeal arises out of an employee’s allegations of sexual harassment by one of
her special education students. It brings to light the difficult balance that schools must find
between ensuring that all students have access to a public school education while
simultaneously maintaining a nonhostile work environment for all employees—the impact
of which is felt by special education educators serving at the intersection of these two
rights. Regina Webster (“Webster”) appeals the district court’s entry of summary judgment
in favor of her current employer, Chesterfield County School Board (“School Board”), on
a claim of a sexually hostile work environment in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000(e), et seq.1 Because the record does not support a prima
facie case for hostile work environment sexual harassment, we affirm.
I.
The School Board has employed Webster as an Instructional Assistant in Special
Education at Providence Elementary since 2006. As an instructional assistant, Webster
works with “special education students to implement behavior management programs and
improve social, vocational, and community skills.” J.A. 402. In 2018, the Principal of
Providence Elementary, Dr. Sharon Rucker (“Dr. Rucker”), transferred Webster from a
class where she instructed emotionally disturbed (“ED”) children to Ms. Kesha Ellerbee’s
1 Webster initially brought a second claim under the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq. See Webster v. Chesterfield Cnty. Sch. Bd., 534 F. Supp.
3d 537, n.1 (E.D. Va. 2021). The district court dismissed this claim with prejudice, and it
is not before us on appeal. Id.; Appellant’s Br. at 1 n.2.

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(“Ellerbee”) class, where Webster worked with children with moderate intellectual
disabilities. J.A. 416. Webster alleges that one of her students sexually harassed her
between fall 2018 through mid-March 2019. This student, S.M., was an eight-year-old boy
diagnosed with Down’s Syndrome and Attention Deficit Hyperactivity Disorder
(“ADHD”). J.A. 39.2
As alleged by Webster, S.M. sexually harassed her on an “almost daily basis.” J.A.
11. Specifically, S.M. touched her “by putting his hands up her dress and touching her
private parts.” Id. Webster first responded by scolding him and telling Ellerbee, “He needs
to be told not to do that!” Id. This behavior did not cease, however, but continued as S.M.
would, or would attempt, to put “his hands up [her] dress or skirt” and often “touch[ed]
[her] front private parts” or “grab[ed her] front private crotch area and her bottom over the
outside of her clothes.” Id. According to Webster, this conduct extended beyond the
classroom doors and also occurred when she would accompany S.M. to his general
education courses. “[A]lmost every time,” Webster alleged, S.M. would “reach up [her]
dress” specifically. Id. This conduct began in September 2018 and Webster decided to
stop wearing dresses to work in November 2018. S.M.’s “groping, grabbing, and touching
of [her] private areas on the outside of her clothing [however] continued even after [she]
stopped wearing dresses.” J.A. 11–12.
2 One of S.M.’s doctors noted that S.M.’s “mental and emotional capacity is delayed
by multiple years.” J.A. 39. S.M.’s Individualized Education Program also detailed that
he has “significantly impaired intellectual functioning” and “significantly impaired
adaptive behavior” that are both “two or more standard deviations below the mean.” J.A.
134; see also J.A. 136–146, 148–78.

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Webster informed Ellerbee of S.M.’s conduct. Although Ellerbee recorded the
incidents in her notes, or “point sheets,”3 where she detailed each student’s daily behavior,
Webster claims Ellerbee was generally dismissive of her concerns and “tried to defend it by
saying that it was just [S.M.’s] personality.” J.A. 12; see J.A. 479. Webster also complained
of S.M.’s conduct to Dr. Rucker and Assistant Principal Peter Johnson (“Johnson”). As
relief, Webster requested to be transferred back to her previous ED classroom. Dr. Rucker
denied those requests. See J.A. 418, 494, 589. On November 14, however, Ellerbee sent
Webster an email informing her that another educator would exchange roles with Webster
and instead work with S.M. J.A. 528. Webster did not appear to welcome this change and
responded that she was sorry Ellerbee felt as though she could not manage her assigned group
of students. Explaining that she had “struggled with the past events from last year,” Webster
maintained that she was doing her best but that the students “treat all of us the same way.”
Id. She then shared her plan to contact human resources to seek additional options and
apologized that it was “not working with [her] in the room.” Id. Webster then forwarded
this email to Dr. Rucker and Johnson with a message explaining that she was being “moved
to work with the bigger kids” because Ellerbee did not believe she could “handle” her current
group. J.A. 527. She also commented that change was difficult for her and while she “loved
[her] job in the ED room,” this new room was a “big struggle.” Id. Dr. Rucker insisted on
3 Other than Webster’s own statements, the record does not reflect the type of daily
harassment alleged but does describe specific incidents of inappropriate touching. For
example, the point sheets noted: (1) on September 6, S.M. lifted Webster’s dress and a
teacher’s shirt; (2) on September 25, S.M. lifted a student’s and a teacher’s shirt; (3) on
October 2, S.M. attempted to lift a student’s shirt; (4) and on October 4, S.M. grabbed a
female student “inappropriately.” See J.A. 216, 218, 333, 339.

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meeting with Webster, but she declined the offers, stating that she felt “no need to meet”
because “it wouldn’t fix the problem.” J.A. 531. Later, in her complaint, Webster
characterized Ellerbee’s decision to separate her from S.M. as a “brief reprieve” that she
experienced before being “forced to continue accompanying [S.M.]” and, thus, subjected to
“his harassing behavior” once more. J.A. 13. Her separation from S.M. was only temporary
because Webster claims that her replacement “refused to continue to accompany [S.M.], her
non-assigned student” after two weeks and Webster was reassigned to work with S.M. Id.
On January 30, 2019, Webster requested to return to her previous classroom and
Dr. Rucker responded that while that was not currently a possibility, staffing would be
assessed at the end of the year. J.A. 57–58. Around that time, Webster also began filing
injury reports and documenting bruises that she incurred from “some of the harassing
instances.” J.A. 496. She did not, however, report the daily incidents of S.M.’s
inappropriate touching because Webster contends that her Chesterfield Education
Association representative did not instruct her to do so.4
Webster’s final allegation of sexual harassment by S.M. occurred on March 13,
2019. While in a general education computer class, S.M. attempted to put his fingers in an
electrical outlet, prompting Webster to move and block him. S.M. reacted by “grabbing
[her] crotch area over and over and trying to twist his fingers in [her] vagina.” J.A. 496.
When Webster tried to stop him, “S.M. began grabbing [her] bottom and grabbing [her]
from front to back.” Id. After informing Ellerbee of the incident, both Webster and a
4 According to Dr. Rucker, she provided Webster with information on how to seek
worker’s compensation for her injuries on March 1, 2019. J.A. 418.

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witnessing teacher emailed Dr. Rucker. J.A. 397–98. Following this incident, Dr. Rucker:
(1) altered Webster’s bus assignment to ensure she did not ride the bus with S.M.; (2)
shifted Webster’s schedule so she no longer accompanied S.M. alone; and (3) increased
monitoring to reduce Webster’s time spent alone with S.M. J.A. 513.5 Later that spring,
Dr. Rucker also proposed transferring Webster to a new classroom. See J.A. 64.
Acknowledging that these measures terminated her exposure to S.M.’s conduct, Webster’s
hostile work environment claim spans from September 2018 through March 13, 2019. See
Appellant’s Reply Br. at 20–21.
After exhausting her remedies with the United States Equal Employment Opportunity
Commission, Webster filed suit alleging that she was subjected to a sexually hostile work
environment in violation of Title VII. See J.A. 8–18. Describing this case as “delicate,” the
district court underscored the difficulty of Webster’s claim as it demonstrates the daily
challenges special education teachers face. Webster v. Chesterfield Cnty. Sch. Bd., 534 F.
Supp. 3d 537, 546 (E.D. Va. 2021). The district court held oral argument and the School
Board introduced expert testimony. Two of the School Board’s experts were professionals
working in the special education field who explained that S.M.’s behavior was common for
a child his age with his disabilities. Id. at 541. Expert testimony demonstrated that S.M. was
incapable of distinguishing between sexes and that a reasonable instructional assistant would
not view S.M.’s conduct as sexual harassment. See id. at 546–49. The district court found
5 Dr. Rucker explained this action in a letter addressed to Webster where she also
stated that a Title IX investigation had been opened, labeling the report as “founded as a
Title IX violation.” J.A. 513.

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that Webster’s failure to rebut this testimony, as well as her almost exclusive reliance upon
her own statements, was detrimental to her prima facie case. Because Webster could only
satisfy one of the four elements required to establish a hostile work environment claim, the
district court granted the School Board’s Motion for Summary Judgment on April 20, 2021.
Id. at 551, 546. This timely appeal followed.
II.
The question before us on appeal is whether the district court erred in dismissing
Webster’s hostile work environment claim on summary judgment. “We review de novo a
district court’s award of summary judgment, viewing the facts in the light most favorable
to the nonmoving party.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 276 (4th
Cir. 2015) (en banc). Summary judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The nonmoving party must demonstrate that a
genuine issue of material fact exists “by offering sufficient proof in the form of admissible
evidence” instead of “relying solely on the allegations of her pleadings.” Guessous v.
Fairview Property Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (internal quotation marks
omitted); see Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984).
To start, we note that all children have the right to obtain a free public education.
20 U.S.C. § 1412(a)(1)(A); Va. Code Ann. § 22.1–214(A). At the same time, employees
have the right to a nonhostile work environment. To establish a prima facie case for hostile
work environment sexual harassment under Title VII, the plaintiff must prove the relevant

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conduct was: (1) unwelcome; (2) based on the plaintiff’s sex; (3) sufficiently severe or
pervasive to alter the plaintiff’s conditions of employment and create an abusive work
environment; and (4) imputable to the employer. Roberts v. Glenn Industrial Group, Inc.,
998 F.3d 111, 117 (4th Cir. 2021).
While it is undisputed that Webster established the first element by demonstrating
that she viewed the conduct at issue as unwelcome,6 the parties disagree as to the remaining
three elements. See Appellant’s Br. at 14–15; Appellee’s Br. at 19; J.A. 593. We address
each of the three contested elements in turn.
A.
We begin with the first element at issue and determine whether Webster
demonstrated that the offending conduct was based on sex. She may do this by establishing
that such conduct would not have occurred but for her sex. See Hoyle v. Freightliner, LLC,
650 F.3d 321, 331 (4th Cir. 2011) (citation and internal quotation marks omitted). While
the conduct need not be “motivated by sexual desire” or sexual intent to satisfy this
element, it does need to have been conducted “in such sex-specific and derogatory terms
. . . as to make it clear that the harasser is motivated by general hostility to the presence of
women in the workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998). The critical question is therefore “whether members of one sex are exposed to
6 In her complaint, Webster described “emotional pain and suffering” as well as
embarrassment. J.A. 17. This is sufficient to show the conduct was unwelcome and thus
satisfy the first element. See EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th
Cir. 2009). The School Board does not contest the district court’s finding that Webster met
this element and only responds to Webster’s arguments concerning the remaining three
elements. Appellee’s Br. at 19.

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disadvantageous terms or conditions of employment to which members of the other sex are
not exposed.” Id.
Webster does not contest that S.M. could not distinguish between sexes and agrees
that he could not form sexual intent. See J.A. 401–03, 462–63; Appellee’s Br. at 26–27;
Oral Argument at 1:53–2:00, 2:35–45, Webster v. Chesterfield Cnty. Sch. Bd. (4th Cir. Mar.
8, 2021) (No. 21-1545), https://www.ca4.uscourts.gov/OAarchive/mp3/21-1545-20220308.mp3.
The School Board submitted affidavits from two expert witnesses who individually
explained that S.M.’s behavior was driven by his disabilities. See J.A. 401–04, 462–63,
532–535. According to the 2018-19 Providence Elementary School Coordinator of Special
Education, Laura Jackson (“Jackson”),
[S.M.’s] hyperactivity and conduct problems fell within the clinically
significant range, and concerns were raised regarding [S.M.’s] anger control,
developmental social disorders and emotional self-control. S.M. was
described as having a tendency to become irritable, upset, or frustrated
quickly, and has difficulty controlling and maintaining his behavior and
mood. [S.M.] was described further as being disruptive, intrusive, or
threatening and having a tendency toward defiance and aggression.
J.A. 402–03 (emphases added); see J.A. 401. Given his disabilities, Jackson stated that
“[S.M.] was incapable in the 2018-19 school year of distinguishing between the male and
female gender” and that he “had neither the capacity, nor the ability, during the 2018-19
school year to a) harass anyone because of gender or b) understand that his behavior could
be sexual.” J.A. 403 (emphases added). Therefore, Jackson concluded that “[a]ny teacher
or [instructional assistant] during the 2018-19 school year knew/or should have expected
that [S.M.] would grab body parts, including ‘sexual areas.’” Id.

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The experts further explained how an experienced instructional assistant would
interpret S.M.’s behavior. According to child psychologist Heather Applegate, Ph.D., who
worked as a school and clinical psychologist,
Any special education Instructional Assistant (“IA”) should have known, and
should have expected, that [S.M.] might grab various parts of a person’s body
(including “sexual” areas), or lift shirts solely in order to get attention, as a
distraction, or to get someone to “back off.” This is part of the understanding
of the special education profession and is not specific to any one school
district.
J.A. 462. She also drew conclusions based upon Webster’s twelve years of experience
working in special education.
It is not reasonable for a special education IA to conclude that a young child
with Down’s Syndrome and ADHD, who responds negatively to instructions
or commands by grabbing and squeezing body parts, is engaged in sexually
harassing behavior. The student is merely trying to escape the instruction or
command . . . This is what any objectively reasonable special education IA
would conclude based on [S.M.’s] behavior and his disabilities. His behavior
had nothing to do with Ms. Webster’s gender.
Id. (emphases added).
Webster does not argue that the district court erred in concluding that S.M. could
not form sexual intent, but rather, her argument is that the district court’s intent-focused
analysis imposed a higher than required burden to show that S.M.’s conduct, whether
intentional or not, was based on sex. In her view, the record demonstrates that S.M. tended
to target female staff members, as opposed to male staff members, by inappropriately
touching them. As support, Webster relies primarily on her own affidavit where she
described putting herself “between [a male student], to keep [S.M.] from touching [the
male student]” and thus experienced “the brunt of the touching” but ultimately concluded

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“[t]hat although [S.M.] inappropriately touched both male and female students, he much
more frequently inappropriately [touched] female adults, such as his teachers and aides,
often grabbing their breasts or buttocks areas.” J.A. 490, 496. She also points to Ellerbee’s
statements to show that S.M.’s female teacher also experienced inappropriate touching
because S.M. had previously placed his hands on her chest. J.A. 505–07. Ellerbee also
stated that S.M. was the first of her students to be accused of sexual harassment and that
she was unaware of any incidents involving S.M. and an adult male staff member.
According to Webster, S.M.’s conduct was because of sex because her and Ellerbee’s
statements, when read together, show both that S.M. targeted female staff members and
that his conduct was “beyond the pale” of what could be expected. Appellant’s Reply Br.
at 8 (citing J.A. 561); see J.A. 503–05, 508–09. But when read within the larger context
of her complete affidavit, Ellerbee also explained that S.M. touched her chest “to get a
response out of [her]” and that he was “not the only student who has done that”—she “had
other students with intellectual disabilities who have done that before.” J.A. 507.
Ellerbee’s statements, as informed by her experience working in special education, are a
logical extension of the experts’ testimony which maintained that a reasonable teacher
would not have viewed S.M.’s conduct as sexual harassment.
Still, Webster argues that a comparison of S.M.’s treatment of adult staff reveals that
female staff members were exposed to harassment while male staff members were not. To
be sure, the aim of summary judgment is not to determine the exact strength of a case and
dispose of so-called weak cases, but instead to determine whether a rational jury could find
in the plaintiff’s favor such that the case should continue. See Hoyle, 650 F.3d at 334–35.

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When the moving party has presented a properly supported motion for summary judgment,
however, the nonmoving party has the burden to point to “significant probative evidence
tending to support the complaint.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In response to the School Board’s expert testimony, Webster relies upon her own
statements—not to refute the experts’ findings as to S.M.’s inability to distinguish between
sexes, but to advance her disparate treatment argument. But, for reasons we will discuss, her
statements alone do not demonstrate disparate treatment. Neither do the point sheets
describing Johnson’s interactions with S.M. do so. Instead of reflecting how S.M. treated
female staff, in comparison to male staff, the point sheets primarily show how S.M.
interacted with female staff and other students. Webster, however, interprets the absence of
inappropriate touching involving male staff as validation that S.M. targeted female staff. See
Oral Argument at 2:36–4:18, Webster v. Chesterfield Cnty. Sch. Bd. (4th Cir. Mar. 8, 2021)
(No. 21-1545), https://www.ca4.uscourts.gov/OAarchive/mp3/21-1545-20220308.mp3; see
also Appellant’s Br. at 7 (“[I]t is clear that the only adults who are referenced in those notes
as having been inappropriately touched by [S.M.] are females.” (emphases in original)).
The Eighth Circuit relied upon a similar argument in Crist, when it analyzed the
alleged harasser’s treatment of female staff as compared to their male counterparts and
ultimately reversed the district court’s grant of summary judgment. Crist v. Focus Homes,
Inc., 122 F.3d 1107, 1111 (8th Cir. 1997). In Crist, the court considered whether a
residential program for people with disabilities could be held liable for the alleged sexual
harassment of three female employees by a male resident. Id. at 1110 (“[T]he thrust of
appellants’ lawsuit is Focus Homes’ conduct in response to appellants’ complaints about

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[the resident’s] physically aggressive behavior, not J.L.’s underlying conduct.”). Unlike
S.M. who was an eight-year-old boy when Webster accused him of sexual harassment, this
resident was sixteen years old, over six feet tall, and weighed over two hundred pounds.
Id. at 1108. The resident in Crist also had a history of being physically aggressive toward
staff and other residents. Id. at 1108–11.7 While the Eighth Circuit focused on the fourth
element discussing liability, it still acknowledged that a reasonable jury could find that the
conduct at issue was based on sex because female staff were disproportionately impacted.
This comparison was supported by the downward shift in the frequency of incidents of
abuse that occurred once male care providers began working at the facility. But unlike the
male caregivers who worked alongside the plaintiffs in Crist, there were no male
employees working alongside Webster here. Thus, while Webster relies upon her and
Ellerbee’s statements to conclude that S.M.’s conduct “was disproportionately geared more
toward adult women than adult men,” she disregards the latter part of her argument by
failing to ever compare Webster’s treatment to that of any similarly situated male.
Appellant’s Br. at 7 (emphasis in original).
Indeed, the only male employee identified here is Johnson. But Johnson was not
regularly in the classroom, and of the more than 161 days covered by the point sheets
7 We note that the conduct at issue in Crist differed from the conduct here, not only
because of the physical differences between the alleged perpetrators, but also due to the
sexual and violent nature of the alleged conduct itself. See Crist, at 1108 (detailing one
reported incident where the resident “pushed [the named plaintiff] against a door, forced
her right hand above her head, pulled open her jeans and her blouse, grabbed her left breast,
and pushed his weight and erect penis against her stomach” before “continu[ing] to hit her
and other staff members”).

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summarizing S.M.’s daily activities, very few entries even mention him. See J.A. 252
(“[S.M.] was walked around the school/hallways w/Mr. Johnson but the behaviors
continued.”); J.A. 255 (“[Johnson] was called to the classroom to talk with him.”); J.A. 284
(“He had to stay w/Mr. Johnson for awhile this morning.”); J.A. 285 (S.M. needed “support
from the office w/Mr. Johnson. He was able to come back, but needed more support.”);
J.A. 287 (“He had to be supported by Mr. Johnson.”). Johnson’s brief interactions as an
Assistant Principal of an elementary school thus cannot be compared with Webster’s daily
supervision as an instructional assistant assigned to small groups of students. See Lightner
v. City of Wilmington, N.C., 545 F.3d 260, 265 (4th Cir. 2008) (finding that comparator
evidence failed because the two employees were not comparable due to the difference in
their positions).
Pointing to S.M.’s specific actions, Webster insists that the nature of S.M.’s
touching alone shows that his conduct was based on sex. But we determine whether
conduct is because of sex by looking to the behavior, considering the underlying
circumstances and the setting in which it occurred, and determining whether “members of
one sex are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.” Oncale, 523 U.S. at 80. Applying that
framework to the facts before us, we find that S.M.’s conduct fell within the range of
behaviors which, as explained by experts, were unsurprising for a child of his age with
Down’s Syndrome and ADHD. See J.A. 402–03. We recognize that the female-dominated
special education staff at Providence Elementary School presented Webster with additional
challenges when attempting to meet this element through comparator evidence.

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Nonetheless, Webster cannot primarily rely upon her own statements to argue that S.M.’s
conduct surpassed what could be expected of an eight-year-old child with his disabilities
after two special education experts testified that it did not—instead, she is required by law
to demonstrate it. See also Nat’l Enters., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000)
(finding that a self-serving affidavit was not enough to overcome summary judgment
absent evidence directly supporting the plaintiffs’ position). Because she failed to do so,
we cannot find that S.M.’s conduct was because of sex.
B.
Even if Webster established that S.M. targeted her because of sex, she would still
be unable to meet the third required element—that is, show that S.M.’s conduct rose to the
level of severe or pervasive. To determine whether conduct qualifies as severe or
pervasive, we look to the totality of the circumstances and consider: “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335 (4th Cir.
2010) (internal quotation marks omitted). “Our circuit has likewise recognized that
plaintiffs must clear a high bar in order to satisfy the severe or pervasive test” and “[t]he
task then on summary judgment is to identify situations that a reasonable jury might find
to be so out of the ordinary” that it qualifies as severe or pervasive. EEOC v. Sunbelt
Rentals, Inc., 521 F.3d 306, 315–16 (4th Cir. 2008). This element presents a two-part
challenge as a plaintiff must meet both the subjective and objective prong. EEOC v.
Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). Concerning the subjective

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prong, courts need not look any further than “the testimony of the complaining witnesses.”
EEOC v. R&R Ventures, 244 F.3d 334, 339 (4th Cir. 2001). To satisfy the objective prong,
however, a plaintiff must show that “‘a reasonable person in the plaintiff’s position’ would
have found the environment objectively hostile or abusive.” Sunbelt Rentals, Inc., 521
F.3d at 315 (quoting Oncale, 523 U.S. at 81–82).
In Webster’s view, the district court mistakenly focused on the objective prong of
the evaluation and accorded her affidavit zero weight to find that she failed to meet the
objective prong. But by continuing to rely on her own statements, Webster conflates the
objective and subjective prongs of the severe or pervasive analysis. Pointing to her
affidavit where she represented that S.M. harassed her “on a constant—almost daily—
basis” between September 2018 and late March 2019, Webster maintains that the physical
nature and frequency of the incidents shows that the conduct was severe or pervasive. J.A.
11, 493. And when measured to determine whether the conduct was subjectively severe or
pervasive—Webster is correct. The record undoubtedly reflects how S.M.’s conduct
impacted Webster as she described feeling humiliated, embarrassed, and crying at work on
numerous occasions. J.A. 16, 50, 491. But when Webster’s statements are used to measure
whether the conduct was objectively severe or pervasive—Webster’s argument fails.
Without any expert testimony to rebut the School Board’s evidence that S.M.’s behavior
was consistent with the behavior of a child his age and with his disabilities, Webster fails
to cite to anything in the record suggesting that a reasonable person in her position—an
experienced instructional assistant working in special education—would find S.M.’s

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conduct to be severe or pervasive. Absent such evidence, we cannot find that Webster
satisfied this element’s objective prong.8
C.
Notwithstanding our findings regarding the second and third elements, Webster’s
sexual harassment claim still fails as to the fourth and final element because the record
does not show that S.M.’s conduct is imputable to the School Board. An employer may be
held liable for a hostile work environment “if it knew or should have known about the
harassment and failed to take effective action to stop it by responding with remedial action
reasonably calculated to end the harassment.” Pryor v. United Air Lines, Inc., 791 F.3d
8 Webster also cited to several circuit and district court cases involving allegations
of sexual harassment by a person with certain developmental disabilities. The district court
thoroughly discussed some of these cases and we agree with its conclusion that none of
them aid Webster in establishing a prima facie case on these facts. See Webster, 534 F.
Supp. 3d at 548–50. For example, Webster relies upon a Fifth Circuit case involving sexual
harassment by an elderly person with dementia in which the court found the evidence
sufficient to allow, but not require, a jury to find that the plaintiff was subjected to a hostile
work environment. See Gardner v. CLC of Pascagoula, LLC, 915 F.3d 320, 323–24, 327
(5th Cir. 2019). Like Crist, the underlying facts distinguish Gardner from the case at bar
because the alleged perpetrator in Gardner was an elderly resident who had a “long history
of violent and sexual behavior” and “had a reputation for groping female employees and
becoming physically aggressive when reprimanded.” Id. at 323.
In addition, Webster also cites to a district court case where the plaintiff established
the because of sex element and that Webster argues is similar. See Mongelli v. Red Clay
Consolidated Sch. Dist. Bd. of Educ., 491 F. Supp.2d 467 (D. Del. 2007). But the district
court in Mongelli ultimately granted summary judgment on the hostile work environment
claim and we cannot divorce its finding concerning the because of sex element from its
extensive analysis regarding the severe or pervasive element. Id. at 480 (explaining that
the student was criminally charged for the physical harassment at issue). Much like here,
the district court in Mongelli found that the plaintiff failed to introduce evidence showing
that a reasonable special education teacher would find the student’s conduct unreasonable.
Id. at 481.

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488, 498 (4th Cir. 2015). But if an employer takes action that results in the “cessation of
the complained of conduct, liability must cease as well.” Spicer v. Commonwealth of Va.,
Department of Corrections, 66 F.3d 705, 711 (4th Cir. 1995); see also EEOC v. Xerxes
Corp., 639 F.3d 658, 669–70 (4th Cir. 2011).
The School Board responded to the March 13 incident by: (1) altering Webster’s
bus assignment to avoid S.M.; (2) changing Webster’s schedule so she no longer
accompanied S.M. alone; and (3) monitoring Webster’s classroom to ensure that she was
no longer alone with S.M. While Webster agrees that this effectively terminated her
exposure to S.M.’s conduct, she maintains that the School Board failed to appropriately
react between the fall of 2018 up until the March 13 incident. J.A. 8.
It is important to note that these elements cannot be evaluated in complete isolation
from each other. Our discussion concerning the severe or pervasive element especially
impacts our analysis here, because our finding that S.M.’s conduct was not objectively
severe or pervasive helps explain why the School Board may not have taken prior action
and why the School Board may not have been on notice at all. Nevertheless, it is unclear
what remedies would have addressed Webster’s concerns given her response to the steps
that the School Board did take. For example, Webster interpreted the decision to separate
her and S.M. as a sign that Ellerbee lacked faith in Webster’s ability to “do the job” and
discussed the change with the other educator involved, stating that “she does not want to
switch students either.” J.A. 527 (emphasis added). Then, when asked by Dr. Rucker to
meet and discuss the situation, Webster declined because there was “no need to meet” as it
“wouldn’t fix the problem.” J.A. 530. In a sworn declaration, Webster later reflected that

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“no one at Providence ever offered [her] what [she] had been seeking since the very start
of the harassment: a return to [her] former ED classroom.” J.A. 498.9 But “[t]here is no
exhaustive list or particular combination of remedial measures or steps that an employer
need employ to insulate itself from liability.” Xerxes Corp., 639 F.3d at 669–70 (internal
quotation marks omitted) (“[I]t is possible that an action that proves to be ineffective in
stopping the harassment may nevertheless be found reasonably calculated to prevent future
harassment and therefore adequate as a matter of law.”).
Like the district court, we too recognize the challenges that special education
teachers like Webster may face when fulfilling their professional duties. See Webster, 534
F. Supp. 3d at 540, 551. As previously stated, the standard question when determining
employer liability for third parties is whether the “employer knew or should have known
of the harassment and failed to take prompt remedial action reasonably calculated to end
the harassment.” Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014) (internal
quotation marks omitted). Unlike in many Title VII actions where the employer’s options
to remedy a hostile work environment include firing an employee for sexual harassment,
the School Board has a more limited set of remedies available given that they must balance
maintaining a nonhostile work environment with ensuring that children have access to
public education. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)
9 Webster also explained that as a sixty-four-year-old who had worked at Providence
for twelve years, she did not want to go from being a senior employee to being a new
employee with the “most occupational vulnerability” at a new school. J.A. 498. The
School Board, however, represented that it does not utilize an official seniority program.
J.A. 553.

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(describing available tangible employment actions as ones that “constitute[] a significant
change in employment status” and include “hiring, firing, failing to promote, [or]
reassignment”). This case exemplifies the difficulty of addressing a situation like
Webster’s, because while separating Webster and S.M. stopped him from touching her,
S.M. was still touching other students. J.A. 64. But if S.M. was behaving as an eight-year-
old with Down’s Syndrome and ADHD would, then the school must maintain the
nonhostile work environment while still respecting S.M.’s right to obtain an education—a
right held by all children. For this reason, appropriate measures may vary.
In Crist, the Eighth Circuit underlined the importance of approaching the liability
determination through fact-intensive analysis. See 122 F.3d at 1111–12. There, both the
program’s behavioral consultant and supervisor suggested various measures to address the
alleged harasser’s behavior and it was unclear whether their suggestions were
implemented. Given the clear control that the employer had over the program, as well as
the minimal steps it had taken to address the plaintiffs’ extensive reports of violent assaults,
the Eighth Circuit found that a reasonable jury could find the employer liable for an
inadequate response. Id. at 1111–12. In contrast, however, the School Board here
responded to Webster’s complaints. While Ellerbee’s decision to separate Webster from
S.M. in November 2018 only lasted two weeks, Webster herself referred to it as a “brief
reprieve.” J.A. 13. But it was not initially clear that Webster even wished to be separated
from S.M. as she had interpreted Ellerbee’s decision as a lack of “faith in [her] working
with the kids” or ability to “do the job.” J.A. 527. When informing Dr. Rucker of
Ellerbee’s decision, Webster explained that she spoke with the educator Webster was to

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exchange roles with and “she does not want to switch students either.” Id. She also stated
that she was “not sure what [Ellerbee was] talking about as for [Webster] being a target”
because “[t]hose kids treat us all the same way so we are all targets.” Id. And when asked
to meet to discuss the situation, Webster declined.
The context-specific analysis that is needed to determine whether appropriate
remedial action was taken in response to specific conduct explains why we cannot
categorically foreclose the possibility that a student-teacher sexual harassment claim could
be cognizable under Title VII. Whether a teacher has a hostile work environment claim
stemming from student harassment will continue to depend on the whether the underlying
facts meet the required elements under Title VII. This is a point with which both parties
largely agree. See Appellant’s Br. at 19–21; Appellee’s Br. at 24–25. But we cannot, under
these facts and in this context, hold that a reasonable jury could find S.M.’s conduct was
based on sex, severe or pervasive, and imputable to the School Board.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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