                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               September 18, 2007
                                No. 07-11985                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                      D. C. Docket No. 05-00600-CV-JOF-1



DEBORAH ALLEN-SHERROD,
for her minor child Anthony Stallworth II,


                                                                  Plaintiff-Appellant,

                                      versus

HENRY COUNTY SCHOOL DISTRICT,

                                                             Defendant-Appellee.


                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                              (September 18, 2007)

Before TJOFLAT, HULL and HILL, Circuit Judges.

PER CURIAM:
      Appellant Deborah Allen-Sherrod filed suit on behalf of her minor son,

Anthony Stallworth II, against appellees, the Henry County School District and

Coach David Edinger, raising claims of race discrimination under 42 U.S.C. §

1981, and race retaliation under 42 U.S.C. § 1981, when Stallworth did not make

the varsity basketball team his senior year in high school. The district court

granted the appellees’ motion for summary judgment. Based upon a thorough

review of the record, the briefs, and the arguments of counsel contained therein, we

affirm the judgment of the district court.

                                             I.

      The claim of race retaliation arises from an incident that occurred on

February 6, 2003, eight months before student Stallworth was cut from the varsity

basketball team in October 2003. The incident involved two Caucasian high

school basketball coaches (not including Edinger), two African-American middle

school (not high school) students and the mother of one of the middle school

students.

      According to the appellant’s brief, the two middle school students came to

the high school gymnasium for some weight training. One of the high school girls’

varsity basketball coaches told the two middle school students to leave the

premises. While the two middle school students were leaving, Coach Edinger



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called the middle school students “thugs” and suggested they were engaged in drug

activities by the looks of their jackets and other clothing. Student Stallworth

overheard Edinger make these statements.

      After this confrontation, a mother of one of the middle school students went

back to the high school gym. The same girls’ coach stopped practice to escort

them out of the gym. As he was attempting to do so, he touched the student’s

mother and there was a physical fight. Apparently, this was a dramatic moment as

nothing of this nature had ever happened at this school before.

      Student Stallworth went home and told his mother about the incident,

including Coach Edinger’s comments to the students as they were leaving the

gymnasium. Stallworth’s mother, appellant Allen-Sherrod here, called a member

of the school board and other administrators at the high school to discuss the

incident. In her contacts with high school administrators, Allen-Sherrod referred to

Coach Edinger’s derogatory remarks - “thugs” - “drugs” - to the middle school

students as told to her by her son, Student Stallworth. The police were

investigating the incident as an assault.

                                            II.

      The district court granted summary judgment to the defendants based upon

the failure of the plaintiffs to prove that, when Coach Edinger determined that



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student Stallworth had not made the “cut” for the varsity high school basketball

team his senior year, some eight months after the incident, that Coach Edinger had

prior knowledge that Stallworth’s mother had reported his derogatory remarks

demonstrating racial animus to the high school administrators and the school

board. Edinger denied that he knew that Stallworth had reported the incident to his

mother when he decided Stallworth would not make the cut.

                                          III.

      On appeal, plaintiffs challenge Edinger’s credibility, citing copious evidence

that Edinger was not to be believed and that he was an inveterate, if not

pathological liar on a wide range of subjects. The district court refused to consider

Edinger’s credibility on summary judgment:

      In her response to the motion for summary judgment, Plaintiff makes
      an extensive attack on Defendant Edinger’s credibility. At summary
      judgment it is improper for the court to consider the credibility of any
      witness. Lane v. Celotex Corp., 782 F.2d 1526, 1528 (11 th Cir. 1986)
      (“The district court must not assess[] the probative value of any
      evidence presented to it, for this would be an unwarranted extension
      of the summary judgment device.”).

[R-1-66, ¶. 9-10, n. 5]. Appellants complain that the district court got it exactly

backwards, turning the summary judgment process on its head, when it confused

the standards applicable to the consideration of the movant’s evidence as opposed

to the evidence favoring the nonmovant. The appellees complain that, although the



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appellants took ten depositions in this case, they failed to offer any evidence

proving that Edinger did indeed know that student Stallworth had overheard

Edinger use derogatory statements about the two African-American middle school

students; that he had told his mother about them; and that his mother had reported

Stallworth’s part in the matter when she complained about the incident the next

day with school administrators and a member of the school board.

                                           IV.

      The credibility issue upon which appellants rely is a red herring. The district

court was correct in observing that it could not consider Edinger’s credibility as a

witness in ruling upon summary judgment. Lane, 782 F.2d at 1528 (“a District

Court must not resolve factual disputes by weighing conflicting evidence since it is

the province of the jury to assess the probative value of the evidence” . . . a

“District Court must not ‘assess[] the probative value of any evidence presented to

it, for this would be an unwarranted extension of the summary judgment device.’”)

(internal citations omitted). It is a hornbook principle that it is not proper for a

district court to assess witness credibility when consideration a motion for

summary judgment as such determinations are reserved for the jury. See Avocent

Huntsville Corp. V. ClearCube Technology, Inc., 443 F.Supp.2d 1284, 1325 (N.D.

Ala. 2006); Wanlass v. Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir. 1998) (“[i]n



                                            5
determining the propriety of summary judgment, credibility determinations may

not be made”); see also Amstead Industries, Inc. V. Buckeye Steel Castings Co., 24

F.3d 178, 183 (Fed. Cir. 1994) (“[i]n is within the province of the jury to determine

the credibility of a witness and the weight to be given his testimony”).

      In short, the district court was correct in observing that it could not consider

the credibility of Edinger as a witness. The district court could neither credit nor

discredit Edinger. It could merely note that Edinger’s statement put the question of

whether or not he was on notice of student Stallworth’s participation in the

incident, some eight months earlier, in issue in the case. That put the burden of

proof of notice on the appellants. In reviewing the record, we find no evidence

presented by appellants that Edinger did indeed know that Stallworth had

overheard heard him using derogatory language indicating racial animus at the

time of the incident in February 2003; that he had told his mother about them; and

that the mother had reported Stallworth’s part in the matter when she complained

of the incident the next day to high school administrators and a school board

member.

      The judgment of the district court is

AFFIRMED.




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