Faye Boatright v. U.S. Bancorp, et al.

In this Title VII case, the second circuit abandoned the constitutionally-compelled de novo standard of review of a summary judgment grant required under United States v. Diebold, 369 U.S.654 (1962), and progeny. The circuit inverted that standard, disregarding all of Petitioner-employee’s evidence and adopting only the Respondent-employers’ contentions. In abandoning Diebold, the circuit relied upon a widespread local rule that allows a court to “deem admitted” a movant’s evidence as a sanction for a purported deficiency in a non-movant’s factual submissions. While Fed. R. Civ. Proc. 56 allows discrete facts to be deemed undisputed where a non-movant has failed to adequately dispute those specific facts, this Court and the Seventh Amendment forbid sanctioning a non-movant by ignoring all of her evidence. The questions presented are:

1. Whether Diebold and the Seventh Amendment prohibit a circuit court reviewing a grant of summary judgment from sanctioning a non-movant under a local “deemed admitted” rule by completely abandoning de novo review and crediting only the movant’s facts.

2. Whether the second circuit erroneously affirmed summary judgment in favor of movants-employers where the non-movant employee proved prima facie elements of discrimination and retaliation and provided unrefuted evidence of the employers’ mendacity about the central issue in the case in their submissions to the EEOC and in federal court answers to Petitioner’s complaint.