                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                             MAY 30 1997
                        FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                  Clerk

GREGORY WASHINGTON,

           Plaintiff-Appellant,

v.

OKLAHOMA STATE UNIVERSITY                     No. 96-6271
BOARD OF REGENTS, a public              (D.C. No. CIV-95-818-C)
institution of higher education;              (W.D. Okla.)
JOHN R. CAMPBELL; RAY M.
BOWEN, PROVOST AND VICE
PRESIDENT OF ACADEMIC
AFFAIRS; OKLAHOMA STATE
UNIVERSITY BOARD OF
REGENTS; ISABEL K. BAKER,
Chairperson; BRUCE BENBROOK,
Vice Chairperson; GARY CLARK,
Member; CLAUD EVANS, Member;
EDWARD KELLER, Member; GARY
SHERRER, Member; L E DEAN
STRINGER, Member; JIMMY
THOMAS, Member; DOUGLAS
TIPPENS, Member; DOUGLAS
WILSON, Executive Secretary;
JANE DOE, individually and in their
official capacities; EARL MITCHELL,
Interim Associate Vice President of
Academic Affairs; REBECCA
JOHNSON, Dean of Undergraduate
Studies; M. SCOTT FERN, Assistant
Legal Counsel,

           Defendants-Appellees.
                           ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and LUCERO, Circuit Judges.




      Plaintiff-appellant Gregory Washington, a former Associate Vice President

and Associate Professor at Oklahoma State University, appeals the district court’s

grant of summary judgment in favor of all defendants on his claims for

employment discrimination and violation of his civil rights. Because plaintiff has

not shown a genuine issue of material fact regarding the validity of his release of

all claims arising from his employment with the university, we affirm. **

      Upon independent review of the record, we find the facts to be substantially

as set forth in the district court’s memorandum opinion, dated July 12, 1996. We

review a grant of summary judgment de novo, applying the same standards as


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

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those used by the district court. See Universal Money Ctrs., Inc. v. American Tel.

& Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Summary judgment is

appropriate if “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

We examine the record and reasonable inferences therefrom in the light most

favorable to the nonmoving party. See Applied Genetics Int’l, Inc. v. First

Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

      Plaintiff argues first that his release of all claims was invalid because it

was procured by fraud. He argues that the university president and provost lied

when they told him there was evidence that he committed sexual harassment and

that his conduct would be publicized. To show fraud, plaintiff must prove

      (1) a false (2) material misrepresentation (3) made with knowledge
      that it is false, or made as a positive assertion without knowledge of
      whether it is true or false and (4) made with the intent to induce
      action in another (5) which does in fact induce such action, and (6)
      proximately causes injury or damage to another.

Eckert v. Flair Agency, Inc., 909 P.2d 1201, 1204 (Okla. Ct. App. 1995). We

conclude plaintiff has failed to raise a genuine issue whether the university

president and provost knowingly made false statements, or made false statements

without regard to their veracity. The tape-recorded conversation between plaintiff

and the graduate student supports a conclusion that plaintiff sexually harassed

her, and that such conduct was actionable. See, e.g., Franklin v. Gwinnett County


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Pub. Sch., 503 U.S. 60, 75 (1992); Seamons v. Snow, 84 F.3d 1226, 1232 (10th

Cir. 1996). Defendants’ belief that the harassment was not quid pro quo, or even

that it might not be actionable, did not negate their basic belief that plaintiff, a

married man in a position of authority over the student, sexually harassed her by

pressuring her to enter into a social relationship with him.

      Plaintiff also has not shown that statements regarding the publicity he

would face were false. There is no evidence, other than an inadmissible hearsay

statement, that defendants threatened to create publicity purposefully if plaintiff

did not resign. There is evidence defendants stated that plaintiff would be

terminated from his administrative position if he did not resign and that the

termination would probably generate rumors regarding his conduct, especially if

the graduate student brought a lawsuit. These statements were not false, however.

Further, plaintiff had almost a week to confer with his attorney and learn whether

the reason for his termination could be publicized. See Silver v. Slusher, 770

P.2d 878, 882 n.8 (Okla. 1988) (“An action for fraud may not be predicated on

false statements when the allegedly defrauded party could have ascertained the

truth with reasonable diligence.”).

      Plaintiff argues also that the release was procured through economic duress,

based on the threat to reduce his salary to that of a professor. However, “[t]he

presence of an unlawful or wrongful act is a prerequisite to the finding of


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economic duress.” First Nat’l Bank & Trust Co. v. Kissee, 859 P.2d 502, 508

(Okla. 1993). In light of his misrepresentations to the investigative committee

and his conduct with the graduate student, plaintiff has not shown that the

decision to terminate his administrative position was unlawful or wrongful.

      Because plaintiff has not shown that the release was invalid, we need not

decide whether he demonstrated a factual dispute as to racial discrimination.

Even if the claim were not barred, however, the record supports the district

court’s conclusion that plaintiff failed to show that he was treated differently than

“similarly situated” nonminority employees. See, e.g., Aramburu v. Boeing Co.,

No. 96-3032, 1997 WL 221401, at *4 (10th Cir. May 5, 1997) (discussing

disparate treatment requirement that employee be “similarly situated”).

      The judgment is AFFIRMED.

                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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