Deborah Allen-Sherrod v. Henry Co. School District , 248 F. App'x 145 ( 2007 )

[DO NOT PUBLISH]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
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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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