                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 12-2477


VICKY T. BENNETT,

                Plaintiff - Appellee,

           v.

CSX TRANSPORTATION, INCORPORATED,

                Defendant - Appellant.



                             No. 12-2556


VICKY T. BENNETT,

                Plaintiff - Appellee,

           v.

CSX TRANSPORTATION, INCORPORATED,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Terrence W. Boyle,
District Judge. (5:10-cv-00493-BO)


Argued:   October 29, 2013                 Decided:   January 21, 2014


Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.
Reversed and remanded by unpublished per curiam opinion.


ARGUED: Evan Mark Tager, MAYER BROWN, LLP, Washington, D.C., for
Appellant. William Mullins McLeod, Jr., MCLEOD LAW GROUP, LLC,
Charleston, South Carolina, for Appellee.    ON BRIEF: Scott S.
Cairns, MCGUIRE WOODS LLP, Jacksonville, Florida; John C.
Millberg, Meredith E. Woods, MILLBERG GORDON STEWART PLLC,
Raleigh, North Carolina; Miriam R. Nemetz, Scott M. Noveck,
MAYER BROWN LLP, Washington, D.C., for Appellant.      Julie L.
Moore, MCLEOD LAW GROUP, LLC, Charleston, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Appellee Vicky T. Bennett, an African-American woman, sued

her former employer, Appellant CSX Transportation, Inc. (CSX),

for violations of the Federal Employers’ Liability Act (FELA),

45 U.S.C. § 51 et seq.; Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq.; and state common law, alleging

that    she    was    subjected   to     discriminatory       and   negligent       acts

while employed as a conductor trainee at CSX.                       Thereafter, CSX

filed a motion for summary judgment as to all claims.                               The

district granted the motion as to Bennett’s state claims but

allowed the federal claims to go forward.

       At trial, the jury returned a verdict for CSX on the FELA

claim, but found for Bennett on the Title VII claim.                         The jury

awarded to Bennett $150,000 in compensatory damages.                         Pursuant

to a post-trial motion filed by Bennett, the district court also

awarded Bennett back pay and front pay, as well as attorneys’

fees and costs.           Post-trial, CSX filed a renewed motion for

judgment as a matter of law or, in the alternative, a new trial

and/or to amend judgment, which the district court denied.

       CSX subsequently filed two timely appeals: the first with

regard   to     the   district    court’s      award   of    attorneys’      fees   and

costs    and    the    second     with    regard     to     the   district    court’s

judgment       against    CSX,    denial       of   CSX’s    renewed    motion      for

judgment as a matter of law or, in the alternative, a new trial,

                                           3
and/or to amend judgment, and all other rulings adverse to CSX.

Thereafter, we consolidated the two appeals.                                Our jurisdiction

over the appeals is pursuant to 28 U.S.C. § 1291.                                           For the

reasons that follow, we reverse the judgment of the district

court and remand for entry of judgment in favor of CSX.



                                                   I.

       Bennett       reported         to   CSX’s        Rocky    Mount     terminal         for   her

first day of work on August 18, 2008, as part of her on-the-job

training       to    be     a     train         conductor.           During      the    session,

Trainmaster James Gilbert gave Bennett a work schedule that he

had prepared.         After reviewing the schedule, Bennett noted that

it would require her to work a longer period of time than is

allowed under the Hours of Service Act (the Act), 49 U.S.C.

§ 21101.       The Act mandates that railroad workers work no more

than twelve consecutive hours and receive at least ten hours of

rest   between       shifts,          excluding         time    in   transit.          49    C.F.R.

§ 288.19(a)(1)-(2)              pt.    228       app.    A.      Thus,     Bennett      spoke      to

Gilbert,       and    he    sought         to     remedy       the   problem     by    providing

Bennett with a new schedule.                       Bennett realized that, even with

the reconfigured schedule, she would still be required to work

longer    hours      than       the    Act       allows.         Hence,    she    returned        to

Gilbert    a    second      time,          but    he    was     on   the   telephone         so   he

instructed her to call later.

                                                   4
       After several unsuccessful attempts to speak with Gilbert,

Bennett contacted Lorenzo Wilkins to help remedy the scheduling

problem.     Wilkins was the Manager of Conductor Training, whose

main   responsibilities        included    hiring,    assisting        in     training,

and supporting the new hires until their two-year anniversary.

       Thereafter, Gilbert returned Bennett’s call.                     According to

Bennett’s     statement,        Gilbert    asked     her   why     she        contacted

Wilkins.      After she answered that she still had a scheduling

conflict    after     Gilbert    had   attempted     to    correct      it,     Gilbert

responded: “You [b]elong to Rocky Mount now and [Wilkins] does

[n]ot run this terminal[.]             [H]e is only an aide to us[.]                 Do

you understand [l]ady? . . . I am you[r] direct supervisor and

you are no longer to contact [W]ilkins for anything[.] . . . Is

that understood?”       She answered that she did.

       On August 22 and 23, Bennett was scheduled to work at the

CSX terminal in Fayetteville, North Carolina.                      When she asked

Gilbert for directions to the train yard, he told her that he

was unfamiliar with Fayetteville, but that he would text the

trainmaster’s       telephone     number      so   that    she    could       ask    for

directions     from     him.       After      receiving     the        name    of    the

trainmaster—Ed      Howze—Bennett      telephoned      him,      and    he    gave   her

directions.      But, the next morning on her way to the yard,

Bennett telephoned Howze again and told him that she was lost.

Thereafter, according to Bennett, “[Howze] became very irritated

                                          5
so [she] told him [she] would continue trying and call back if

needed.    A few minutes passed [and she] called . . . Howze back.

[H]e screamed[,] [‘]Open [b]oth [y]our [f]ucking [e]yes [l]ady

and [y]ou [w]ill [s]ee.[’]”           She then telephoned Wilkins, who

gave her directions to the train yard.

      After Bennett arrived at the train yard, Howze drove up and

told her to “get in the truck.”            She testified that she did as

she was told to do but, because she was scared, she left her

door open and her foot hanging out of the truck.                She pulled her

foot in and closed the door, however, as he accelerated.                       After

asking    several     times   where   they      were   going,   Howze    finally

answered, “I’m going to teach you directions.”                   According to

Bennett, “[w]hile driving he continuously talked rude and said

things like [‘][W]ho do you think you are by calling a Rocky Mt.

Trainmaster[’] and [‘][Y]ou will never work my railroad.[’]”

      After they arrived at the hotel where Bennett had stayed

the previous night, Howze demanded, “[L]et’s see you get me back

now   lady.”        She   explained   to     him   that   she   had     left    the

directions in her bag.          Thereafter, he drove her back to the

train    yard   and   then,   according    to    Bennett,   “asked    which     was

[her] vehicle, stopped in front of it and opened his trunk and

said[,] ‘[G]et your belongings and leave my railroad.’”

      On August 25, 2008, one day before a mandatory meeting was

to be held with CSX management so that the aforementioned issues

                                       6
could be addressed, Bennett’s vehicle was vandalized.                            She had

parked it at the employee parking lot of the Rocky Mount yard.

While working the midnight-to-noon shift, someone spray-painted

the messages “Stay of[f] the railroad” and “stupid nigga nigga”

on her car.           Someone had also broken the rear passenger-side

window of her vehicle and placed a female mannequin head in the

backseat with its face painted black and a rope around its neck.

After    the     vandalism           incident,     the        mandatory     meeting     was

cancelled.

       Neither CSX’s police, its human resources department, nor

the    Rocky    Mount       Police    Department       was    able    to   determine    who

committed the vandalism.                 During CSX’s investigation, Bennett

was    placed    on     a    paid    leave   of    absence.          Although    she    was

scheduled to return to work on October 1, 2008, she did not do

so, stating that she was unable to return to work for medical

reasons.        In late November 2008, Bennett’s training class was

furloughed.           CSX     subsequently        sent    the    class     a   letter    on

July     26,    2010,       recalling    them     to     work.       Bennett   failed    to

respond.

       Based on the aforementioned incidents, Bennett filed suit

in the District of South Carolina, claiming violations of FELA

and Title VII.          She also brought several state-law tort claims,

including        intentional          infliction         of      emotional      distress;

negligent      infliction       of    emotional        distress;     negligent    hiring,

                                             7
supervision,       and   retention;     false        imprisonment;         and    simple

assault.     CSX subsequently filed a motion to transfer the action

to the Eastern District of North Carolina pursuant to 28 U.S.C.

§ 1404, which the South Carolina district court granted.

     Thereafter, CSX filed a motion for summary judgment as to

all of Bennett’s claims.          The district court granted the motion

as to Bennett’s state-law tort claims but denied it as to her

two federal claims.

     At trial, the jury found for CSX on the FELA claim but for

Bennett on the Title VII claim.               It awarded Bennett $150,000 in

compensatory       damages.       The   district       court        awarded      her    an

additional    $92,835     in   back     pay    and    $592,869       in    front       pay,

$327,423.15    in    attorneys’    fees       and    costs   to     Bennett’s      trial

counsel,     and    $469,528.24    in     attorneys’         fees    and      costs     to

Bennett’s prior law firm.             Thereafter, CSX filed a post-trial

motion, which included, among other things, a renewed motion for

judgment as a matter of law on Bennett’s Title VII claim.                              The

district court denied the motion.



                                        II.

     In CSX’s first assignment of error, CSX claims that the

evidence presented at trial was insufficient for the jury to

find that CSX subjected Bennett to a hostile work environment.



                                         8
Thus, according to CSX, the district court erred in denying its

renewed motion for judgment as a matter of law.

       We   review     the    district    court’s      denial    of     a    motion     for

judgment as matter of law de novo.                    Belk, Inc. v. Meyer Corp.,

U.S., 679 F.3d 146, 164 (4th Cir. 2012).                     When considering such

a motion, the court construes the evidence in the light most

favorable to the non-movant.               Int’l Ground Transp. v. Mayor &

City Council of Ocean City, Md., 475 F.3d 214, 218 (4th Cir.

2007).

       The correct standard for granting a motion for judgment as

a matter of law is well-settled:                  “If a reasonable jury could

reach    only   one    conclusion      based     on    the    evidence       or    if   the

verdict in favor of the non-moving party would necessarily be

based on speculation and conjecture, judgment as a matter of law

must be entered.”            Myrick v. Prime Ins. Syndicate, Inc., 395

F.3d 485, 489 (4th Cir. 2005).                  But, “[i]f the evidence as a

whole is susceptible of more than one reasonable inference, a

jury issue is created and a motion for judgment as a matter of

law should be denied.”           Id. at 489-90.          “Permissible inferences

must    still     be   within    the     range    of     reasonable         probability,

however, and it is the duty of the court to withdraw the case

from the jury when the necessary inference is so tenuous that it

rests    merely    upon      speculation    and    conjecture.”             Lovelace     v.

Sherwin-Williams        Co.,     681     F.2d     230,       241 (4th       Cir.    1982)

                                           9
(alternation omitted) (quoting Ford Motor Co. v. McDavid, 259

F.2d    261,     266    (4th     Cir.    1958))       (internal       quotation    marks

omitted).        “[E]vidence which shows a ‘probability’ and not a

mere ‘possibility’ would suffice to allow jury consideration.”

Id. at 241 (quoting Raston Purina Co. v. Edmunds, 241 F.2d 164,

168 (4th Cir. 1957)).

       Bennett    seeks    to     impute    liability      for    her    hostile       work

environment claim to CSX on the basis of the alleged acts of two

of her supervisors:            Howze and Gilbert.         To establish a hostile

work   environment        claim    under    Title      VII,     the    plaintiff       must

demonstrate “that the offending conduct (1) was unwelcome, (2)

was because of her sex [or race], (3) was sufficiently severe or

pervasive to alter the conditions of her employment and create

an   abusive     work    environment,       and   (4)     was     imputable       to   her

employer.”       Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011)

(alteration in original) (quoting Ziskie v. Mineta, 547 F.3d

220, 224 (4th Cir. 2008)) (internal quotation marks omitted).

To establish the third element, the plaintiff must show that the

work    environment        was     not     just       subjectively       hostile       but

objectively hostile, as well.               Id. at 385.         “Such proof depends

upon the totality of the circumstances, including ‘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

                                           10
employee’s work performance.’”                            Id.     (quoting EEOC v. Sunbelt

Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008)).

       In denying CSX’s renewed motion for judgment as a matter of

law,   the       district      court     held         that       Bennett     set   forth   “ample

circumstantial evidence” that Howze and Gilbert “vandalized her

vehicle      and       subjected    her         to        a     hostile    work    environment.”

Bennett v. CSX Transp., Inc., 907 F. Supp. 2d 694, 698 (E.D.N.C.

2012).       Although Bennett “did not present any direct evidence

that    .    .     .    Gilbert     or      .    .        .     Howze     vandalized    her   car,

circumstantial           evidence      is       often         utilized     in   cases   involving

discrimination, and may in such circumstances be more persuasive

than direct evidence.”                 Id.; see Desert Palace, Inc. v. Costa

539 U.S. 90, 100 (2003) (“Circumstantial evidence is not only

sufficient,            but   may   also         be        more    certain,      satisfying    and

persuasive than direct evidence.” (quoting Rogers v. Mo. Pac.

R.R. Co., 352 U.S. 500, 508, n.17 (1957))).

       Moreover, according to the district court,

       [Bennett] further presented sufficient evidence that
       the harassment she withstood was both severe and
       pervasive.   [Bennett] proffered evidence that, inter
       alia, she was one of only two African American women
       in her place of employment, that she received negative
       performance assessments where employees of a different
       race and gender had not, that her car was vandalized
       with a message to stay of[f] the railroad and a racial
       slur, and that a mannequin head with a noose around
       its neck was placed in the backseat of her car.

Bennett, 907 F. Supp. 2d at 698.


                                                     11
       We agree with the proposition that “circumstantial evidence

is often utilized in cases involving discrimination, and may in

such   circumstances        be      more    persuasive     than    direct    evidence.”

Id.      We    are    unpersuaded,          however,       that   there     was    “ample

circumstantial        evidence”       demonstrating        that   Howze     and   Gilbert

vandalized Bennett’s car and subjected her to a hostile work

environment.

       Although      CSX      may    have     treated      Bennett    unfairly         with

reference      to    both     the    schedule       and    the    directions      issues,

without the vandalism incident, she appears to agree that she

would have no hostile work environment claim.                        After all, rude

treatment      by    supervisors       is    “conduct      falling    short       of   that

required      to    sustain    a    hostile       work    environment.”        Baqir     v.

Principi, 434 F.3d 733, 747 (4th Cir. 2006).                          It is not the

province of Title VII to eliminate every instance of rudeness or

insensitivity.         Hartsell v. Duplex Prods., Inc., 123 F.3d 766,

772-73 (4th Cir. 1997).               “Workplaces are not always harmonious

locales, and even incidents that would objectively give rise to

bruised or wounded feelings will not on that account satisfy the

severe or pervasive standard.                 Some rolling with the punches is

a fact of workplace life.”                  Sunbelt Rentals, Inc., 521 F.3d at

315.

       Turning to the vandalism incident, Bennett argues that the

vandalism of her car was “the climactic event to occur in a

                                             12
progressively hostile environment” at CSX.                She also contends

that she was “specifically targeted” and that Howze and Gilbert

“each had a motive to vandalize [her] car.”                  Both Howze and

Gilbert were upset, she maintains, because she had contacted

Wilkins about their conduct toward her and the meeting that they

were going to be required to attend as a result of that conduct.

According to Bennett, “It was clear . . . that they did not want

. . . [her] working for CSX.”

     Bennett further maintains that both Howze and Gilbert had

control    over   the   facility,       access   to      Bennett’s   vehicle,

knowledge of her work schedule and thus, according to her, “a

level of comfort that [they] could vandalize both sides of . . .

Bennett’s vehicle in plain view of the CSX yard office and not

get caught.”

     In    addition     to    motive,     Bennett        argues   that   “the

circumstantial evidence that . . .           Howze and/or . . . Gilbert

[were]    responsible   for   the   vandalism       is    undeniable.”    In

support, she marshals the following evidence:              (1) the vandalism

occurred the night before the mandatory meeting mentioned above;

(2) Bennett’s vehicle was parked in a well-lit lot 200 feet from

the door of Gilbert’s office and was easily seen from the Rocky

Mount tower all evening; (3) there were no other cars vandalized

in the CSX parking lot that night; (4) the vandal was familiar

with Bennett’s schedule; (5) given that Bennett’s car was spray-

                                    13
painted in large, block-print letters suggests that the vandal

was not in a hurry but instead comfortable enough to take his

time; (6) the message spray painted on Bennett’s vehicle—“Stay

of[f]    the     railroad         .    .   .    stupid      nigga     nigga”—was            the    same

message that Howze and Gilbert conveyed to Bennett the previous

week; (7) the vandal did not take anything from Bennett’s car;

(8) based on the message spray-painted on Bennett’s vehicle and

the female mannequin head with the rope around its neck in her

back seat, the vandal knew that Bennett was African-American and

that    she     worked      on    the      railroad;         (9)    Gilbert’s      vehicle         was

identical       to    Bennett’s         so     the    vandal       knew    which       of    the    two

vehicles belonged to Bennett; (10) the vandal’s use of white

paint    shows       that    the       vandal        was    targeting      a    black       vehicle;

(11) the      vandal       used       ballast    from       the    train       tracks       to    break

Bennett’s        vehicle          window;        (12)        the     Rocky       Mount           Police

Department, which conducted its investigation at 5:00 AM, did

not    mention       the    mannequin          head    in    the    back       seat,    but       Brian

Stussie, another manager at CSX, mentioned seeing it at 11:48

AM, suggesting that the vandal felt comfortable in returning to

the     scene    to        complete        the       vandalism;       (13)       Gilbert          never

contacted Bennett after the vandalism was discovered to inform

her of the vandalism or insure her safety; (14) Bennett was not

on the training schedule that Gilbert sent out on the night that

the vandalism occurred, indicating that he did not think that

                                                 14
she would return to work after the incident; (15) Gilbert told

the   Rocky      Mount     Police       Department         that    he    observed       a    Dodge

Charger park beside Bennett’s car and then drive away, but at

trial    Gilbert      denied         making     the    statement;          (16)      there    were

significant discrepancies in the statements with respect to when

Gilbert was made aware of the vandalism, who informed him, and

when he was informed that it was Bennett’s car that had been

vandalized; and, (17) in exchange for favorable treatment from

CSX, James Bradley, a general clerk at CSX’s Rocky Mount yard,

gave much more detailed information in his deposition and at

trial, which supported CSX, than he did in his initial statement

to the Rocky Mount Police Department.

       As   is     evidenced          above,    Bennnett          adopts      a    kitchen-sink

approach in her attempt to fix the vandalism incident on Howze

and   Gilbert.           For    the    reasons       set    forth    below,         however,    we

conclude that Bennett’s circumstantial evidence was insufficient

to    establish      a    reasonable          probability         that     either      Howze    or

Gilbert committed the vandalism detailed herein.

       Pertaining to Bennett’s argument that requiring Howze and

Gilbert     to     attend       the     mandatory          meeting       is       circumstantial

evidence      that       one    of     them    vandalized          her     vehicle:     as     CSX

observed, “no rational jury could infer that either [Gilbert or

Howze] would jeopardize a well-paying, long-term career and open

himself       up     to        criminal        prosecution          over          something     as

                                                15
insignificant       as        a     meeting         to    resolve       an    issue    about

interpersonal relations.”                Although we think that a reasonable

jury could rightly infer from the evidence presented herein that

Howze and Gilbert disliked Bennett, we do not think such an

inference could reasonably lead to a conclusion that either of

the men probably criminally vandalized her vehicle.                            See Hawkins

v. PepsiCo, Inc., 203 F.3d 274, 281 (4th Cir. 2000) (“Even if

[Howze and Gilbert] harbored some personal dislike of [Bennett]

that made [Bennett’s] job more difficult or stressful, ‘[a]n

employer     is    not   required         to   like        his    employees.’”)       (fourth

alteration in original) (quoting Williams v. Cerberonics, Inc.,

871 F.2d 452, 457 (4th Cir. 1989))).

       As to the proximity of Bennett’s car to Gilbert’s office,

no reasonable jury would infer from that fact that Howze and/or

Gilbert were probably responsible for the vandalism of Bennett’s

vehicle.     Only sheer speculation on the jury’s part could allow

it to come to such a conclusion.                         And, that evidence certainly

does   not   point       to       the   probability            that   they   committed    the

criminal act.

       At least five of the pieces of evidence that Bennett sets

forth to establish that Howze and Gilbert vandalized her car are

facially neutral.             No reasonable jury would find from the fact

that there were no other cars vandalized in the CSX parking lot

on   the   night    that      Bennett’s        car       was    vandalized    or   that   the

                                               16
vandal did not take anything from her car as probative on the

question as to whether Howze and Gilbert probably vandalized

Bennett’s    car.       The    same    goes       for    Bennett’s    statement        that

Gilbert never contacted her after the vandalism.                       Again, neither

rudeness    nor     insensitivity       is        actionable      under     Title      VII.

Hartsell, 123 F.3d at 772-73.            Bennett’s contention that Gilbert

told the Rocky Mount Police Department that he observed a car

parked beside Bennett’s car and then drive away, but then denied

it at trial, and the discrepancies in the statements regarding

when Gilbert discovered the vandalism are also both facially

neutral and thus, are of no assistance to Bennett in her hostile

work    environment      claim.         Quite           simply,   they      are   of     no

consequence.

       Several of Bennett’s contentions could just as easily be

attributed to any other employee at CSX as they could be to

Howze   and/or      Gilbert.      This       is    especially        true   as    to    the

vandal’s familiarity with Bennett’s work schedule, the vandal

arguably taking his time in painting large letters on Bennett’s

vehicle because he was in no hurry, the message on Bennett’s

vehicle to stay off of the railroad, the vandal’s knowledge that

Bennett     was    an   African-American            woman     who     worked      on    the

railroad,    the     identity     of    Bennett’s          vehicle    as    opposed      to

Gilbert’s vehicle, and Bennett having a black car that would

make the use of white paint preferable.                      The use of ballast to

                                         17
break   Bennett’s         vehicle       window     and      the   appearance         of     the

mannequin after the vandalism was first discovered could also

point as easily to Bennett’s co-workers as they could to Howze

and Gilbert.        For a jury to find that this evidence leads to the

conclusion that Howze and Gilbert are the vandals, instead of

someone else, was based on nothing more than speculation and

conjecture.

     Concerning        Gilbert        leaving      Bennett    off   of    the        training

schedule for the following week, the evidence shows that he was

to meet with her the following day about her schedule and other

matters.       Thus,      no    reasonable      jury     could    infer       from    Bennett

being   left    off    of       the   training        schedule    that    Howze        and/or

Gilbert probably had vandalized Bennett’s car.

     Finally, in the matter of Bradley, in his initial statement

to police, he said that he noticed a light-colored Dodge Charger

or Magnum that he did not recognize in the Rocky Mount CSX

parking lot on the night of the vandalism.                        But, then at trial,

he testified that he also saw a light-skinned African-American

standing    beside        the    car.         Bennett       maintains     that        Bradley

embellished     his    testimony        for     CSX    in   exchange      for      favorable

treatment      by   the     company.          Although      we    are    at    a     loss    to

understand why Bradley failed to reveal the information about

the man in the parking lot in his statement to police—be it that

he simply forgot or for some nefarious reason—the fact remains

                                              18
that   he   has    maintained          from       the    start      that   he      observed    an

unfamiliar       car   in    the       parking         lot     on   the    night     that     the

vandalism occurred.             That he later remembered that there was a

strange man there, too, is of no import.

       Having     reviewed        Bennett’s            circumstantial         evidence      both

individually and cumulatively, we hold that, although Bennett

demonstrated      that      there      is     a    possibility         that      Howze     and/or

Gilbert vandalized her vehicle, she failed to establish that

there is a reasonable probability that they did so.                                  Thus, the

only   verdict     that     a     reasonable           jury    could      have     rendered    on

Bennett’s hostile work environment claim is one in favor of CSX.

As such, the district court erred in not granting CSX’s renewed

motion for judgment as a matter of law.



                                              III.

       CSX halfheartedly argues in a footnote that, pursuant to

Vance v. Ball State University, 133 S. Ct. 2434 (2013) (holding

that “an employee is a ‘supervisor’ for purposes of vicarious

liability under Title VII if he or she is empowered by the

employer     to    take      tangible         employment            actions      against      the

victim”),    “[i]t     does      not    appear          that    Gilbert     or     Howze    would

qualify as supervisors under the proper standard.”                                 Inasmuch as

Bennett     is    unable     to     establish           that     Gilbert      or    Howze     was

responsible for the vandalism of Bennett’s vehicle, however, we

                                                  19
need not decide whether they were Bennett’s supervisors pursuant

to Vance.



                                     IV.

       From   the   circumstantial   evidence      Bennett      presented,   no

reasonable jury could have concluded that Howze and/or Gilbert

vandalized Bennett’s vehicle.        Any such finding was based purely

on speculation and conjecture.            Thus, the district court erred

in not granting CSX’s renewed motion for judgment as a matter of

law.     Accordingly,    we   reverse     the   judgment   of    the   district

court.    In light of this reversal, we also reverse the front and

back pay awards, as well as the attorneys’ fees awards, and

remand the case with instructions to the district court to enter

judgment in favor of CSX.

                                                     REVERSED AND REMANDED




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