UNPUBLISHED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.
2

Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
3

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, 
4

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.
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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 
6

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 
7

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, 
8

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. 
9

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)
10

(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 
11

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. 
12

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 
13

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-
14

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 
15

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 
16

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 
17

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 
18

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 
19

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 
20

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