570 F.2d 403 (1st Cir. 1978), 77-1415, Willens v. University of Massachusetts

Docket Nº:77-1415.
Citation:570 F.2d 403
Party Name:Lilian WILLENS, Plaintiff-Appellant, v. UNIVERSITY OF MASSACHUSETTS et al., Defendants-Appellees.
Case Date:February 22, 1978
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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570 F.2d 403 (1st Cir. 1978)

Lilian WILLENS, Plaintiff-Appellant,

v.

UNIVERSITY OF MASSACHUSETTS et al., Defendants-Appellees.

No. 77-1415.

United States Court of Appeals, First Circuit

February 22, 1978

Page 404

Daniel F. Featherston, Boston, Mass., for plaintiff-appellant.

William E. Searson, III, Gen. Counsel, Boston, Mass., with whom Lawrence T. Bench, Associate Counsel, Boston, Mass., was on brief, for defendants-appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Plaintiff Willens appeals from a summary judgment in favor of defendant on her denial of tenure claim. We are presented with three issues: (1) did the district court err in finding that plaintiff had no valid contract right to tenure; (2) did the court properly find that plaintiff had not been denied due process; and (3) did the court abuse its discretion in refusing to amend or alter the judgment?

If the court correctly determined that there was no genuine issue as to any material fact, and properly applied the appropriate legal standards, the judgment will be affirmed. See Soar v. NFL Player's Assoc., 550 F.2d 1287 (1st Cir. 1977).

THE CONTRACT CLAIM

Plaintiff alleged below that she had established a right to tenure at the University of Massachusetts under a theory of de facto tenure. There was, however, uncontroverted sworn testimony that the University had not adopted the de facto tenure system alleged by plaintiff. Having thus established that there was no genuine issue on this material fact, F.R.Civ.P. 56(c), the court entered summary judgment against plaintiff. We find no error. The district court, in finding no evidence to support plaintiff's allegation, also noted that the University's highly structured system of de jure tenure argued against a parallel system of de facto tenure. In the absence of any credible evidence to the contrary, we affirm. See Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

The district court found that plaintiff forwarded only the de facto tenure system argument to support her contract claim to tenure. Plaintiff now raises before

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us for the first time a theory of estoppel in pais. While we need not consider this argument on appeal, SEC v. Howatt, 525 F.2d 226, 230 (1st Cir. 1975), we do observe that plaintiff has not cited any act...

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