                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                February 6, 2014 Session

     JIM FERGUSON v. MIDDLE TENNESSEE STATE UNIVERSITY

          Appeal by Permission from the Court of Appeals, Middle Section
                     Chancery Court for Rutherford County
                  No. 036336MI     John D. Wootten, Jr., Judge


                No. M2012-00890-SC-R11-CV - Filed October 29, 2014


A jury found that an employer retaliated against an employee in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the Tennessee Human Rights Act (“THRA”) and
awarded the employee compensatory damages. The Court of Appeals reversed the award,
holding that the employee had failed to prove that his supervisor had knowledge of his
protected activity when she took adverse action against him. We hold that the jury’s verdict
is supported by material evidence from which the jury could infer that the supervisor knew
that the employee had filed a lawsuit for discrimination when she engaged in retaliatory
conduct. We reverse the decision of the Court of Appeals, reinstate the jury verdict, and
remand to the Court of Appeals for a review of the award of damages.

     Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
                  Reversed; Case Remanded to the Court of Appeals

S HARON G. L EE, C.J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,
G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined. J ANICE M. H OLDER, J., not
participating.

Michelle M. Benjamin, Winchester, Tennessee, for the appellant, Jim Ferguson.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
William J. Marett, Jr., and Leslie Ann Bridges, Senior Counsel, for the appellee, Middle
Tennessee State University.
                                         OPINION

                                              I.

        A jury awarded compensatory damages to Jim Ferguson after finding that his
employer, Middle Tennessee State University (“MTSU”), through the actions of its
supervisor, retaliated against Mr. Ferguson for filing a discrimination suit against
MTSU. The jury verdict was based on violations of Title VII, 42 U.S.C. § 2000e-3 (2006),
and the THRA, Tenn. Code Ann. § 4-21-301 (1978), which prohibit employers or their
agents from retaliating against employees who engage in protected activity, such as the filing
of an employment discrimination lawsuit. To prove his retaliation claim, Mr. Ferguson was
required to show that he engaged in protected activity, that MTSU knew about his protected
activity, that MTSU took a materially adverse action against him, and that there was a causal
connection between his protected activity and the resulting adverse action. This appeal
concerns the knowledge requirement – whether the verdict is supported by material evidence
that MTSU, through its supervisor, knew that Mr. Ferguson had filed a lawsuit before the
supervisor increased his work duties and required him to perform work that he was not
physically capable of performing.

       Mr. Ferguson, a Japanese-American, began working for MTSU in May of
1987. Beginning in 1997, he worked in the Housing Department under the supervision of
Ms. Dana Byrd. Mr. Ferguson and Ms. Byrd initially had a good relationship, but it
deteriorated over time. Mr. Ferguson believed this was because Ms. Byrd discovered that
Mr. Ferguson’s mother was Japanese and that he was Japanese-American.

        On December 29, 1998, Mr. Ferguson had shoulder surgery. When he returned to
work in February of 1999, Mr. Ferguson’s doctor placed restrictions on the work he could
perform. Ms. Byrd, however, directed him to do work that exceeded his medical
restrictions. She told Mr. Ferguson to perform the work or go home. Mr. Ferguson
continued to work because he had a son with medical problems and needed the job for health
insurance.

       In March of 1999, Mr. Ferguson complained to Karen Milstead, a benefits specialist
with MTSU’s Human Resources Department, about being required to perform tasks that
exceeded his medical restrictions. After Mr. Ferguson provided Ms. Milstead with a copy
of his medical restrictions, his work requirements decreased for a period of time. On a
subsequent occasion, Mr. Ferguson was required to lift and install heavy air conditioning
units. Mr. Ferguson could not perform this work so he requested a transfer to another
department. Ms. Byrd denied his transfer request.



                                             -2-
        On Friday, August 9, 2002, Mr. Ferguson injured his shoulder and back at
work. After receiving medical care and a new set of work restrictions, he took the
restrictions to Ms. Byrd’s office. She advised Mr. Ferguson that he would need to report to
work over the weekend and that his duties would comply with the restrictions. Mr. Ferguson
testified that he could barely walk, but Ms. Byrd still had him perform some overhead tasks
that weekend. On Monday, he informed Ms. Byrd that his leg was feeling numb and he
needed to see a doctor. His condition required him to have back surgery, and he was out of
work until March 17, 2003. When Mr. Ferguson returned to work, he was placed in a
warehouse performing tasks within his medical restrictions.

       In late 2002, Mr. Ferguson filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging discrimination on the basis of race and national origin, and
that he was subjected to a hostile workplace. On March 27, 2003, Mr. Ferguson filed an
employment discrimination lawsuit against MTSU in the Rutherford County Chancery
Court. Mr. Ferguson alleged discrimination on the basis of disability, race, and national
origin under the Americans with Disabilities Act, Title VII, the THRA, and the Tennessee
Handicap Act.1 On April 3, 2003, MTSU was served with a copy of Mr. Ferguson’s
employment discrimination lawsuit. Mr. Ferguson testified that after he filed his lawsuit,
“things got pretty heated and pretty rough.”

        On April 7, 2003, four days after MTSU was served with Mr. Ferguson’s lawsuit, Ms.
Byrd ordered Mr. Ferguson to do tasks that required physical labor beyond his medical
restrictions.

        On April 22, 2003, Mr. Ferguson received work restrictions from his doctor that
included limited overhead work with his right shoulder and only occasional lifting over
twenty pounds. The next day, Ms. Byrd ordered Mr. Ferguson to convert the exterior lights
on all campus buildings to flood lights. On April 24, 2003, Ms. Byrd required Mr. Ferguson
to replace, repair, and check all exit lights in every dormitory on the MTSU campus. This
required him to perform overhead work that exceeded his restrictions.

        On May 14, 2003, Ms. Milstead sent an e-mail to Sarah Sudak, an associate dean, with
copies to Ms. Byrd and her supervisor, Richard Smith, indicating that Mr. Ferguson’s lifting
restrictions had been modified. Ms. Byrd acknowledged that she should have sent Mr.
Ferguson home that day, but she did not. She also admitted that she believed Mr. Ferguson’s
injuries were genuine and that he was not exaggerating them.



       1
        Effective April 7, 2008, the Tennessee Handicap Act was renamed the Tennessee Disability Act.
See Tenn. Code Ann. § 8-50-103(a) (2008).

                                                 -3-
        On May 19, 2003, Mr. Ferguson had an incident with a co-worker. Mr. Ferguson said
that the co-worker threatened him and that MTSU campus police were called. In a letter to
Mr. Smith about the incident, Mr. Ferguson stated that his job duties were causing him severe
pain and increasing the numbness in his legs. After Mr. Ferguson gave a copy of his letter
to Ms. Byrd, Mr. Ferguson believed that Ms. Byrd treated him worse.

       On Sunday, June 1, 2003, while Mr. Ferguson was in church with his family attending
his son’s confirmation, Ms. Byrd called him into work, refusing to allow him to report after
the service ended. Upon arriving at work, Mr. Ferguson was required to unstop a drain filled
with a highly corrosive acid. He believed that Ms. Byrd was trying to hurt him by failing to
warn him about the acid. Mr. Ferguson was not able to unstop the drain, and when another
worker came to assist him, they determined that the job required an auger, which weighed
between seventy-five and one hundred pounds. After retrieving the auger, Mr. Ferguson and
his co-worker tried to unstop the drain, but Mr. Ferguson had to leave because his leg became
numb. The next day, Ms. Byrd ordered him to finish the job.

         On June 11, 2003, Mr. Ferguson was having some physical difficulties performing his
work and asked Ms. Byrd to provide him with assistance. She denied his request, and Mr.
Ferguson had to perform the work alone. Later that day, Mr. Ferguson fell down a flight of
stairs, injuring his leg and suffering a concussion. Mr. Ferguson’s head struck multiple steps
during his fall, causing him to lose consciousness. He was transferred by ambulance to the
hospital. According to a subsequent medical diagnosis, he sustained a brain injury.

        When he returned to work on June 16, 2003, Mr. Ferguson received thirty-nine work
orders; on June 18, 2003, he received fifty-three work orders. Many of these tasks required
Mr. Ferguson to perform overhead work, even though these tasks exceeded his
restrictions. His medical condition continued to deteriorate, and Mr. Ferguson left MTSU
in December of 2003. He was approved for accidental disability retirement on June 22,
2004.

        On April 21, 2004, Mr. Ferguson filed another lawsuit against MTSU in the
Rutherford County Chancery Court, alleging unlawful retaliation under Title VII and the
THRA. In December of 2004, this lawsuit was consolidated with the discrimination suit he
had previously filed. In 2008, he filed an amended complaint that included the previously
filed discrimination and retaliation claims and also added a claim for malicious harassment
under the THRA.




                                             -4-
        For eight days in November of 2011, a jury heard the case on Mr. Ferguson’s claims
of discrimination, malicious harassment, and retaliation.2 His discrimination claim was based
on two theories—a disparate treatment claim and a hostile work environment claim alleging
workplace harassment—both involving his Japanese-American heritage. At the conclusion
of Mr. Ferguson’s proof, MTSU moved for a directed verdict pursuant to Tennessee Rule of
Civil Procedure 50.01. The trial judge granted the motion as to Mr. Ferguson’s hostile work
environment claim but denied it as to all other claims. The jury found in favor of MTSU on
Mr. Ferguson’s disparate treatment and malicious harassment claims, but found in favor of
Mr. Ferguson on his retaliation claim and awarded him three million dollars in damages.

       On December 21, 2011, MTSU filed a motion for a new trial and/or a remittitur,
contending that Mr. Ferguson failed to show that Ms. Byrd knew of his protected activity
and, therefore, did not retaliate within the meaning of Title VII and the THRA. After a
hearing, the trial court denied MTSU’s motion, ruling that there was substantial evidence
supporting the jury’s verdict.

        MTSU appealed, and the Tennessee Court of Appeals reversed the trial court’s
decision. Ferguson v. Middle Tenn. State Univ., No. M2012-00890-COA-R3-CV, 2013 WL
1304490, at *1 (Tenn. Ct. App. Mar. 28, 2013). The Court of Appeals noted that it was
undisputed that some persons in MTSU’s administration knew of Mr. Ferguson’s EEOC
complaint and lawsuit. Id. at *8. However, the Court of Appeals rejected the view that
general corporate knowledge of an employee’s protected activity is sufficient to establish the
knowledge requirement of a prima facie case of retaliation. Id. Thus, the Court of Appeals
concluded that Mr. Ferguson failed to submit to the jury material evidence showing that Ms.
Byrd personally knew of his lawsuit at the time she took adverse action against him. Id. at
*9. Mr. Ferguson filed an application for permission to appeal under Tennessee Rule of
Appellate Procedure 11, which we granted. The issue we review is whether the jury verdict
was supported by material evidence that MTSU had knowledge of Mr. Ferguson’s protected
activity prior to the adverse action taken against him.

                                                    II.

       In reviewing the sufficiency of a civil jury verdict, we will set aside findings of fact
by a jury “only if there is no material evidence to support the verdict.” Tenn. R. App. P.


        2
         No issue was raised as to whether Mr. Ferguson was entitled to a jury trial on the THRA claim. But
see Sneed v. City of Red Bank, No. E2012-02112-COA-R9-CV, 2013 WL 3326133 (Tenn. Ct. App. June 27,
2013), perm. app. granted (Tenn. Nov. 13, 2013).



                                                   -5-
13(d); see also Wilson v. Americare Sys., Inc., 397 S.W.3d 552, 558 (Tenn. 2013). To
determine whether there is such material evidence, we “(1) take the strongest legitimate view
of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports
the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all
[countervailing] evidence.” Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009)
(alteration in original) (quoting Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704
(Tenn. 2000) (internal quotation marks omitted), abrogated by Gossett v. Tractor Supply Co.,
320 S.W.3d 777 (Tenn. 2010). We do not re-weigh the evidence, Flax v. DaimlerChrysler
Corp., 272 S.W.3d 521, 532 (Tenn. 2008), and do not recalibrate the jury’s preponderance
of the evidence assessment, Barnes, 48 S.W.3d at 704. The credibility of witnesses is the
province of the jury, not appellate courts. See, e.g., State v. Flake, 88 S.W.3d 540, 554
(Tenn. 2002) (“Questions concerning the credibility of witnesses, the weight and value of the
evidence, as well as all factual disputes raised by the evidence, are for the trier of fact;
appellate courts do not reweigh the evidence or reevaluate credibility determinations.”);
Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994).

                                             III.

       Both Title VII and the THRA prohibit retaliation against employees who oppose
discriminatory practices in the workplace. Title VII makes it unlawful “for an employer to
discriminate against any of his [or her] employees or applicants for employment . . . because
[the employee] has opposed any practice made an unlawful employment practice by [Title
VII].” 42 U.S.C. § 2000e-3(a). This is known as Title VII’s “opposition clause” because it
prohibits the punishment of employees who oppose unlawful employment practices. See,
e.g., Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 271
(2009).

        The THRA similarly prohibits employers from “[r]etaliat[ing] or discriminat[ing] in
any manner against a person because such person has opposed a practice declared
discriminatory by [the THRA] or because such person has made a charge, filed a complaint,
testified, assisted or participated in any manner in any investigation, proceeding or hearing
under [the THRA].” Tenn. Code Ann. § 4-21-301(a)(1). The stated purpose of the THRA
is to “[p]rovide for execution within Tennessee of the policies embodied” in Title VII and
other federal civil rights laws. Tenn. Code Ann. § 4-21-101(a)(1) (2011); Campbell v. Fla.
Steel Corp., 919 S.W.2d 26, 31 (Tenn. 1996). Generally, we interpret the THRA similarly,
if not identically, to Title VII, but we are not obligated to follow and we are not limited by
federal law when interpreting the THRA. Booker v. Boeing Co., 188 S.W.3d 639, 647 (Tenn.
2006); Washington v. Robertson Cnty., 29 S.W.3d 466, 474 (Tenn. 2000); Carr v. United
Parcel Serv., 955 S.W.2d 832, 835 (Tenn. 1997), overruled on other grounds by Parker v.
Warren Cnty. Util. Dist., 2 S.W.3d 170 (Tenn. 1999). Like Title VII, the THRA is a

                                              -6-
remedial piece of legislation that should be construed liberally. Emerson v. Oak Ridge
Research, Inc., 187 S.W.3d 364, 377 (Tenn. Ct. App. 2005).

        A primary purpose of the anti-retaliation provision of Title VII is to ensure employees
“unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U.S.
337, 346 (1997); see also Perkins v. Metro. Gov’t of Nashville & Davidson Cnty., 380
S.W.3d 73, 81 (Tenn. 2012). It is designed to prohibit employer actions that are likely to
deter employees from filing complaints with the EEOC or otherwise asserting their rights
under anti-discrimination statutes. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006) (citing Robinson, 519 U.S. at 346). The anti-retaliation provision of the THRA
serves the same purpose. See Allen v. McPhee, 240 S.W.3d 803, 820 (Tenn. 2007),
abrogated on other grounds by Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn.
2010). If employees do not receive protection from retaliatory conduct after they complain
about discrimination, they will be less likely to report discriminatory conduct. “To a large
extent, the effectiveness and very legitimacy of discrimination law turns on people’s ability
to raise concerns about discrimination without fear of retaliation.” Deborah L. Brake,
Retaliation, 90 Minn. L. Rev. 18, 20 (2005). Without protection from retaliation,
“challenging employment discrimination would be nearly impossible.” Henry L. Chambers,
Jr., The Supreme Court Chipping Away at Title VII: Strengthening It or Killing It?, 74 La.
L. Rev. 1161, 1180 (2014).

        An employee may have a valid retaliation claim even if the underlying discrimination
claim fails. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1457-58 (7th Cir. 1994); Davis
v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986) (“A finding of unlawful retaliation
is not dependent on the merits of the underlying discrimination complaint.”). As long as the
employee in good faith believes he or she is a victim of discrimination, the employee is
protected by the anti-retaliation provisions of Title VII. Johnson v. Univ. of Cincinnati, 215
F.3d 561, 579-80 (6th Cir. 2000); Spence v. Local 1250, United Auto Workers of Am., 595
F. Supp. 6, 10 (N.D. Ohio 1984); Croushorn v. Bd. of Trustees of Univ. of Tenn., 518 F.
Supp. 9, 25 (M.D. Tenn. 1980); Smith v. Winter Place LLC, 851 N.E.2d 417, 419 n.4 (Mass.
2006).

        Federal and state courts recognize that retaliation comes in many shapes and
sizes. “The law deliberately does not take a ‘laundry list’ approach to retaliation, because
unfortunately its forms are as varied as the human imagination will permit.” Knox v. Indiana,
93 F.3d 1327, 1334 (7th Cir. 1996). The United States Supreme Court has acknowledged
that effective retaliation can take many forms. White, 548 U.S. at 64. Many courts have
recognized that increasing an employee’s workload can constitute retaliation. See Mogenhan
v. Napolitano, 613 F.3d 1162, 1166-67 (D.C. Cir. 2010) (finding an increase in an
employee’s workload by five or six times sufficient to present a jury question as to unlawful

                                              -7-
retaliation under Title VII); Ford v. Gen. Motors Corp., 305 F.3d 545, 555 (6th Cir. 2002)
(finding increased workload as one of three factors causing court to find jury question on
retaliation); Scruggs v. TRW Auto. U.S. LLC, 3:07-0923, 2008 WL 4791531, at *14 n.8
(M.D. Tenn. Oct. 30, 2008) (“It is possible for an employer to discriminate or retaliate
against an employee by giving that employee an onerous workload.”).

        To prevail on a THRA claim, an employee must prove: (1) that the employee engaged
in protected activity; (2) that the employer knew about the employee’s protected activity; (3)
that the employer subsequently took a materially adverse action against the employee; and
(4) a causal connection between the employee’s protected activity and the resulting adverse
action. Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 29 (Tenn. 2011); Allen, 240
S.W.3d at 820.3 Our focus in this case is the knowledge requirement. The rationale for the
knowledge requirement is that an employer should not be held liable for retaliation when it
has no knowledge that the employee has engaged in protected activity. Matthew W. Green,
Jr., Express Yourself: Striking a Balance Between Silence and Active, Purposive Opposition
Under Title VII’s Anti-Retaliation Provision, 28 Hofstra Lab. & Emp. L.J. 107, 131
(2010). Knowledge of an employee’s protected activity can be shown by either direct or
circumstantial evidence. Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002); Goldsmith
v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993); Jones v. Bernanke, 557 F.3d 670,
679 (D.C. Cir. 2009).

        MTSU asserts that Mr. Ferguson failed to show that Ms. Byrd, his supervisor, knew
that he had filed a discrimination lawsuit when she increased his work duties beyond his
physical capabilities and medical restrictions. Mr. Ferguson contends that he satisfied his
burden of proof by submitting evidence of Ms. Byrd’s knowledge of his protected activity
through her deposition testimony. In her deposition, Ms. Byrd testified that she didn’t “really
remember for sure” but believed Mr. Ferguson had filed two complaints and that they had
to do with his mother being Japanese. This deposition testimony proves that at some point
in time, Ms. Byrd knew that Mr. Ferguson had engaged in protected activity, but fails to
prove when she acquired this knowledge. However, there was additional proof from which
the jury could infer when Ms. Byrd learned about the lawsuit. When Mr. Ferguson returned
to work on March 17, 2003, he was assigned work in the warehouse within his medical
restrictions. On April 3, 2003, MTSU was served with Mr. Ferguson’s lawsuit. Less than
a week later, Ms. Byrd increased Mr. Ferguson’s work duties beyond his work
restrictions. The close temporal proximity of the service of the lawsuit on MTSU and the


        3
           The United States Court of Appeals for the Sixth Circuit identifies the same four prongs of a
retaliation claim under Title VII. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000); Canitia
v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990).


                                                   -8-
increase in Mr. Ferguson’s work duties could be considered by the jury in determining not
if, but when, Ms. Byrd acquired the requisite knowledge. Close temporal proximity, by
itself, is not enough to prove knowledge, but can be considered by the jury, along with other
direct or circumstantial evidence of knowledge, to support an inference that the employer had
the requisite knowledge.

        The jury had the benefit of seeing and hearing Mr. Ferguson and Ms. Byrd testify and
was free to judge the credibility of both witnesses. Barnes, 48 S.W.3d at 709. Credibility
of witnesses plays a major role in retaliation cases, as the jury is in a unique position to
observe the demeanor of witnesses and assess their credibility. Patton v. Sears, Roebuck &
Co., 234 F.3d 1269, 2000 WL 1681017, at *7 (6th Cir. Nov. 1, 2000) (unpublished table
decision). The jury can disregard the testimony of a witness it does not find to be
credible. State v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998); Buchanan v. Harris, 902
S.W.2d 941, 943 (Tenn. Ct. App. 1995); see Cunningham v. Black & Decker (U.S.), No.
05-1297-T-AN, 2007 WL 8042502, at *4 (W.D. Tenn. Dec. 7, 2007) (finding that the jury
reasonably disregarded testimony of decisionmaker who claimed he did not know of
employee’s workers’ compensation claim); Liberatore v. CVS N.Y., Inc., 160 F. Supp. 2d
114, 117-18 (D.D.C. 2001) (acknowledging that because resolution of factual issues depends
on the jury’s assessment of credibility, the jury was free to disregard testimony of employer’s
witnesses who claimed ignorance of protected activity of whistleblowing employee). The
jury could have reasonably found that Ms. Byrd was not a credible witness and that there was
circumstantial evidence that Ms. Byrd knew that Mr. Ferguson had filed a lawsuit before she
materially increased his work load.

       On factual questions, members of a jury can use their common sense and rely on
everyday life experiences when evaluating issues.4 Lake v. Memphis Landsmen, LLC, 405
S.W.3d 47, 67 (Tenn. 2013); see also Terry v. Plateau Elec. Coop., 825 S.W.2d 418, 423
(Tenn. Ct. App. 1991) (“Jurors do not live in vacuums. They are encouraged to use their
common sense and to rely upon their life experiences in evaluating a lawsuit.”). The jury
was free to find that Ms. Byrd was not credible. Other witnesses directly contradicted
aspects of Ms. Byrd’s testimony. For example, a former employee of MTSU who worked
in the warehouse testified that Ms. Byrd called Mr. Ferguson blind, dumb, and stupid, but
Ms. Byrd testified she did not make that statement.

       The jury also was free to disbelieve Ms. Byrd’s testimony that she did not retaliate
against Mr. Ferguson because he had filed a discrimination lawsuit. See Reed v. Cracker
Barrel Old Country Store, Inc., 133 F. Supp. 2d 1055, 1074 (M.D. Tenn. 2000) (“A


        4
          The jury instructions in this case provided: “In deciding which testimony you believe, you should
rely on your own common sense and everyday experience.”

                                                   -9-
reasonable jury could find that the [employer’s] explanation in this case is not
credible.”). Ms. Byrd testified in her deposition that she thought that Mr. Ferguson’s
discrimination suit had something to do with the fact that his mother was
Japanese. However, she followed that up with the comment, “I really don’t remember
anything.” The jury could choose to disbelieve this testimony as well. Appellate courts are
not in the business of second-guessing jurors and trial judges when it comes to factual
determinations supported by material evidence. We have explained that whether we “would
have made the same credibility assessments or findings of fact that the jury did in this case
is of no consequence. The assessment of witness credibility and resolution of evidentiary
conflicts was within the sole province of the jury.” Barnes, 48 S.W.3d at 709.

       We find that the Court of Appeals erred in substituting its judgment for that of the
jury, which had the opportunity to evaluate the credibility of both Mr. Ferguson and Ms.
Byrd. Taking the strongest legitimate view of the evidence and allowing all reasonable
inferences in favor of Mr. Ferguson, as we must given the jury verdict in his favor, we find
there was material evidence supporting the jury verdict.

       MTSU also asserts that the compensatory damages award of three million dollars is
excessive. Because the issue of damages has not been reviewed by the Court of Appeals, we
remand the case to the Court of Appeals for a review of the damages award.

                                     CONCLUSION

       Because we find that the jury’s verdict is supported by material evidence, we reverse
the decision of the Court of Appeals and reinstate the jury verdict. The case is remanded to
the Court of Appeals for review of the award of compensatory damages. Costs of this appeal
are taxed to Middle Tennessee State University for which execution may issue if necessary.




                                                   _____________________________
                                                   SHARON G. LEE, CHIEF JUSTICE




                                            -10-
